and others if preliminary injunctive relief is not granted.
4. The plaintiffs have standing to bring the present action.
5. A preliminary injunction, pending final determination of the merits should be granted to best maintain the "status quo."
Under decisions of the Supreme Court in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970), plaintiffs may challenge an administrative regulation if the plaintiffs (1) "have the personal stake and interest that impart the concrete adverseness required by Article III" of the Constitution, and (2) are within the zone of interests protected by the act, and (3) judicial review is not precluded. Barlow, supra, at 164f, 90 S. Ct. at 836. The Administrative Procedure Act, 5 U.S.C. § 701 et seq., allows judicial review of agency action "except where '(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.'" Id. at 165, 90 S. Ct. at 837. In Barlow a general grant of power to an agency to "prescribe such regulations, as he [Secretary of Agriculture] may deem proper to carry out the provisions" of the law did not preclude judicial review. Only upon a showing of "'clear and convincing evidence' of a contrary legislative intent" will judicial review be prohibited. I find no prohibition by inference or statutory fiat in the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4801 et seq., or elsewhere that would preclude district court review of the actions of HUD in its treatment of lead-based paints on houses it owns.
The Third Circuit Court of Appeals has adopted the "injury in fact" test to determine standing under the constitutional limitations of Article III for federal court jurisdiction. Shannon v. United States Department of Housing and Urban Development, 436 F.2d 809 (3rd Cir. 1970). There, standing to litigate was granted residents, businessmen, and civic group representatives, who claimed that a planned HUD rental supplement apartment project would affect their investment in homes and businesses, and "the very quality of their daily lives."
In Shannon, plaintiffs were neither displaced persons nor potential occupants of the project. In the present case, the complaint alleges that the individual members of the various plaintiff civic organizations are "parents and children living in properties owned, leased or maintained by defendants who have been subjected to and are now subject to the life and health-endangering disease of lead paint poisoning caused by the hazardous conditions of lead paint on defendants' properties," (Paragraph 3 of the Complaint); that members and children of members of another plaintiff civic organization "are directly injured and subjected to serious bodily and mental harm, and even death, by the actions and inactions of defendants." (Paragraph 4 of the Complaint). Another civic group plaintiff is comprised of homeowners who have purchased properties under FHA programs. (Paragraph 6 of the Complaint). The individual plaintiffs claim a direct personal injury to the minor individual plaintiff from exposure to lead paint in "a property owned and maintained by defendants." (Paragraph 7 of the Complaint).
Although it is not clear that all of the above allegations refer to all of the defendants, nevertheless the plaintiffs are clearly persons aggrieved by the actions and/or inactions of HUD and other defendants under the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4801 et seq. The plaintiffs allege that they and/or their members and their members' small children are residents of urban areas and of residences owned, maintained and sold by defendants, that they and/or their members have children that are or may be exposed to lead-based paint poisoning, and that they and/or their members have in the past and will in the future suffer personal physical and mental injury as well as monetary hardships caused by defendants owning, leasing, maintaining and selling houses containing dangerous levels of lead-based paint that is accessible to small children. Plaintiffs clearly have standing to maintain this action. Cf. Davis v. Romney, 355 F. Supp. 29 (E.D. Pa. 1973, Davis, J.). Cf. Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), where there was no showing that the members of the plaintiff Sierra Club used the premises that was the subject to the litigation "for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents." Id. at 735, 92 S. Ct. at 1366.
Basically HUD contends that its far less stringent rules and regulations concerning treatment of lead-based painted surfaces in HUD acquired properties supersedes and overrides reasonable local health regulations concerning residences containing dangerous levels of lead contained in lead-based painted surfaces in areas accessible to small children. Whether Congress may grant HUD such preemptive right is not the question. To date Congress has not attempted to do so, and HUD's contention that it is immune from reasonable local health requirements is incorrect.
Reference to the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4801 et seq., is appropriate. Subchapter I provides that the Secretary of Health, Education and Welfare (HEW), may make grants to local units of government "for the purpose of assisting . . . in developing and carrying out local programs to detect and treat incidents of lead-based paint poisoning." (Emphasis added). Such local programs should include (1) educational programs concerning the "health danger and prevalence of lead-based paint poisoning among children of inner city areas," (2) development of "intensive community testing programs" to detect incidents of such poisoning and to insure prompt medical treatment of victims of such poisoning, (3) follow-up programs to protect identified victims "against further exposure . . . in their living environment," (4) other actions to reduce or eliminate such poisoning. (42 U.S.C. § 4801(c)).
Subchapter II provides that local grants may be made by HEW to carry out local programs " to eliminate the hazards of lead-based paint poisoning." (Emphasis added.) Such a local hazard elimination program should include, inter alia, "a comprehensive program requiring the prompt elimination of lead-based paints from all interior surfaces, porches, and exterior surfaces to which children may be commonly exposed, of residential housing on which lead-based paints have been used as a surface covering, including those surfaces on which non-lead-based paints have been used to cover surfaces to which lead-based paints were previously applied." (42 U.S.C. § 4811(a)(2)). Plaintiffs' primary objective in the present action is to bring about as promptly as possible a complete city-wide implementation of an effective local program harmonious with the letter and spirit of Subchapters I and II. The request for preliminary injunctive relief, however, is premised on the failure of HUD, maintaining and re-selling its acquired residences, to comply with reasonable local regulations and HUD's failure to comply with the spirit and intent of the Act of Congress to eliminate the hazards of lead-based paint poisoning to small children.
Subchapter IV provides that the Secretary of HEW shall "take such steps and impose such conditions as may be necessary or appropriate to prohibit the use of lead-based paint in residential structures constructed or rehabilitated . . . by the Federal government, or with Federal assistance." (42 U.S.C. § 4831). Present HUD regulations do prohibit future use of any lead-based paint for repainting HUD and HUD assisted housing, and no complaint is made as to lack of governmental compliance with Subchapter IV.
The Act directs HUD under Subchapter III (42 U.S.C. § 4821) in consultation with HEW to develop and carry out a demonstration and research program to determine the nature and extent of the problem of lead-based paint poisoning and the methods for most effective removal of lead-based paint from interior and exterior surfaces of residences in which children may be commonly exposed, and to make a report to Congress by January 13, 1972. This is the only duty expressly imposed on HUD by the Act. The primary responsibilities under Subchapters I, II and IV are placed in the hands of HEW.
The statute under which HUD was created, 42 U.S.C. § 3531 et seq., transferred to the Secretary of HUD all the functions, powers and duties of the Federal Housing Administration (FHA) and the Public Housing Administration. 42 U.S.C. § 3534. The Secretary of HUD was authorized to foreclose on FHA mortgages, and upon acquisition, to "complete, administer, remodel and convert, dispose of, lease, and otherwise deal with, such property." (42 U.S.C. § 3535(i)). Undoubtedly under these powers, HUD may promulgate rules and regulations concerning the maintenance and rehabilitation of HUD acquired and owned properties. 42 U.S.C. § 3535(d) expressly grants rule making powers "necessary to carry out his [the Secretary of HUD] functions, powers, and duties."
HUD does not gain on behalf of the government any sovereign immunity nor supremacy by reason of its rule making powers in the context of this litigation.
Although there is case law that indicates the government is not subject to local building and/or licensing requirements adopted purely for local purposes, as noted by Senior Judge Biggs in United States v. City of Chester, 144 F.2d 415, 421 (3rd Cir. 1944):
Immunity from local building restrictions or ordinances does not imply that the Administrator is free to construct unsafe dwellings or housing which may be deleterious to the health and welfare of a community.
The regulations of HUD expressly recognize that they do not preempt local ordinances concerning elimination of lead-based paints. § 35.24 of the regulations provides
The provisions of this subpart [elimination of lead-based paint] constitute the policy of this Department. They shall not be construed as relieving the owner of his responsibility for compliance with local ordinances, codes, and regulations pertaining to lead-based paint, nor does the Department assume any responsibility with respect to enforcing, interpreting, or determining compliance with such local requirements.