due process. The Court does not find merit in either point.
Under Rule 23(b)(3) the Court finds that questions of law common to the members of the class do not predominate over any questions affecting only individual members. Rather questions of fact relating to the individual class members, the nature of their separate claims and individual eligibility, predominate. A class action is thus inappropriate. With regard to Plaintiffs' due process contentions, the Court has discovered no authority, and Plaintiffs have offered none, which would require an adjudicatory hearing for the determination of claims for reimbursement or assistance for housing defects under the Section 235 program. HUD has established an administrative mechanism allowing ample opportunity for written presentation and documentation of claims, and appeal from an adverse initial determination. The one case arguably in point, Powelton Civic Home Owners Ass'n v. H.U.D., 284 F. Supp. 809 (E.D. Pa. 1968), requires no more.
Defendants' Motion for Reconsideration also raises two points: (1) that HUD owes no "duty" of proper inspection to purchasers of Section 235 homes, and (2) that the Court misinterpreted HUD regulations, 24 C.F.R. § 200.527, in the initial Memorandum Opinion herein. The question of HUD's duty to inspect Section 235 homes was fully briefed and was decided by the Court in its Memorandum Opinion. The Court sees no reason to alter that decision. United States v. Neustadt, 366 U.S. 696, 81 S. Ct. 1294, 6 L. Ed. 2d 614 (1961), is distinguishable and was distinguished. The reimbursement program for Section 235 homes created by 12 U.S.C. § 1735b(b) is sui generis. This Court held that under that program Congress had intended to create a duty on the part of HUD to properly inspect Section 235 homes. The duty extends only to homes insured under this program and is limited, of course, by the scope of the statutory reimbursement provisions which created the duty. The Court adheres to the views earlier expressed in its Memorandum Opinion.
On the question of interpretation of 24 C.F.R. § 200.527, the Court finds that the limitations which HUD would read into the regulations, as providing only for assignment of administrative or financial priorities, are nowhere present in the language of the regulation. § 200.522 does properly set forth the statutory standard for reimbursement. Yet § 200.537(a), which immediately follows § 200.522, reads on its face as a limitation upon the statutory standard for determination of which defects will be afforded reimbursement. Here also, the Court adheres to the views earlier expressed in its Memorandum Opinion.
There appearing to the Court no further issues of fact or law to be resolved in this case, the matters before the Court on Motion for Preliminary Injunction will be treated as consolidated with trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. Entry of an Order implementing the Memorandum Opinion herein was withheld pending submission and determination of the present motions. An appropriate final order of injunction will now be entered.
Ordered, that the pending Motions for Reconsideration be and hereby are denied.