and the real property securing those mortgages. By my interpretation of the statute, as well as his, that would have been impermissible.
I note that the order I have entered in this case is not, by its terms, an injunction against GNMA. It is an order directed to the Secretary of HUD who agreed, when he executed the consent decree to use his "best efforts to obtain approvals necessary to effectuate the terms of this settlement from ... any necessary federal agencies." (Consent Decree at P 13). Although it is undisputed that the Secretary has the discretion and the power to direct the allocation of GNMA funds, there is no showing that the Secretary has used any effort at all, much less his best efforts, to secure GNMA commitments to purchase mortgages in the Wash West Properties development. My order, as I amend it today, requires the Secretary to do what he promised to do-to use his best efforts, and to exercise the power of his office. 12 U.S.C. § 1723a. It is my duty to enforce the terms of that promise, and, mindful of the understandings of all the parties when the bargain was struck, to protect the compromise. United States v. ITT Continental Baking Co., 420 U.S. 223, 235-36, 95 S. Ct. 926, 933-34, 43 L. Ed. 2d 148 (1975). What the Secretary proposes here is that he be permitted not to do what he agreed to do and in that breach of his agreement, to vitiate the consent decree. I cannot find any language in the statute that forbids the Secretary from agreeing to exercise his discretionary power over GNMA. Neither can I read the anti-injunction language as barring an order directed to the Secretary, and not entered "against the Association." In this case, if the Secretary were to do what he agreed to do, that is, to use his "best efforts," and there is not evidence that he has done so, it is quite clear that the terms of the consent decree could be satisfied. Plaintiffs have supplied me with a copy of a HUD "NEWS RELEASE," HUD-No. 82-8 (January 15, 1982) in which HUD announces that GNMA will set aside funds as a first priority for projects with UDAG grants, and, as a second priority, projects approved for 1981 which were unable to obtain GNMA tandem financing. It is astonishing to me that the Secretary, who has the authority to establish these relative priorities would not, in using his "best efforts," create a first priority class of projects for which he had agreed to secure all necessary federal agency approvals.
Having concluded that a reasoned interpretation of 12 U.S.C. § 1723a permits the order I have entered in this case, I must conclude that the likelihood of HUD's prevailing on appeal is not great enough to support granting its motion for a stay. I also observe that permitting HUD to delay implementation of the order during the appeal period increases the risk that the project will not be completed and that the fair and laboriously-negotiated consent decree will be rendered meaningless. When weighing the possible injury to plaintiffs if the stay is granted, i.e. the project will never be completed, against the injury to HUD if the stay is not granted, i.e. one approved project will be favored over another approved project, it is clear that harm inflicted if the stay is granted far outweighs the harm that might be perceived in ordering the Secretary to choose a particular project. Cf. Halderman v. Pennhurst State School, 451 F. Supp. 233, 235, (E.D.Pa.1978).
I am also aware, however, that GNMA financing has not yet been allowed any developer this year, and that my order now requires HUD to make the financing available immediately. I am certain, however, that even if HUD had specifically agreed in the consent decree to provide GNMA financing, or if GNMA financing were as readily available today as it was when the consent decree was negotiated, the financing would not yet be available. The understanding of the parties at the time of the negotiation of the consent decree, as I have found previously, was to utilize GNMA tandem financing, as it was then provided. Because it was my intention to modify the consent decree to embody what the parties to the consent decree intended, I will amend my order to require HUD to make GNMA tandem financing available when GNMA commitments to purchase mortgages are issued through the procedures it chooses to follow. See HUD News Release, No. 82-8 (January 15, 1982).
AND NOW, this 28th day of January, 1982, it is hereby Ordered that defendant HUD's Motion for Stay Pending Appeal is DENIED. It is further Ordered that the Court's Order of November 18, 1981 is AMENDED as follows:
"The Secretary shall make GNMA tandem financing at an interest rate of 7.5% available to Wash West Properties when GNMA funding authorizations are allocated in 1982."
Insofar as the Court's Order requires tandem financing to be made available immediately, the Order is VACATED.
AND IT IS SO ORDERED.