although it expects that few MMIF properties will be made available through the program. Currently, 293 houses are leased under these programs, 217 from General Insurance Fund properties and 76 from MMIF properties. First Martin Declaration at para. 25; Third Martin Declaration at para. 13.
Plaintiffs allege that they have been "frustrated and rebuffed" when seeking to obtain housing under these programs, and that the HUD local field offices are either not aware of or not supporting the programs. See Declaration of Rodman McCoy, Director of Program Services of Neighborhood Housing Services; Declaration of Rev. Thomas Knoll. A phone survey conducted by plaintiffs of housing providers in 32 cities revealed that none was aware of these HUD programs. Declaration of Mary Ellen Hombs, Analyst for National Coalition for the Homeless. In their declarations in this case, several organizations specifically averred that when they sought to purchase single-family houses at some type of discount, HUD field offices told them HUD was forbidden from selling the houses under any circumstances other than sale to the highest bidder. See Declaration of Rev. Jim Dickerson, Director of MANNA; Declaration of Rodman McCoy. In one instance, the Washington field office allegedly told area housing providers that it would accept bids for a block of properties on a preferential basis, the organizations submitted bids, and the field office rescinded the sale on orders from the national office. Declaration of Rev. Jim Dickerson.
A. The National Housing Act
The Court previously held that plaintiffs had standing to maintain their National Housing Act claim. Lee v. Pierce, 698 F. Supp. at 336-37. Defendant does not contest the Court's holding that plaintiffs meet the case and controversy requirement. Instead, he argues that the prudential "zone-of-interest" test is not satisfied. In defendant's view, plaintiffs do not have standing to maintain this action because the interest they seek to protect does not fall within the zone of interests protected by the National Housing Act.
The Administrative Procedure Act ("APA") grants standing to those "aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. Even if the plaintiffs are injured by agency action, the Supreme Court considers "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute." Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). In Clarke v. Securities Industry Association, 479 U.S. 388, 93 L. Ed. 2d 757, 107 S. Ct. 750 (1987), the Supreme Court revisited the elements of the zone of interest test. The Court noted that the phrase "a relevant statute" should be interpreted "broadly." Id. at 399. The Court also recognized that agency action is presumptively reviewable, and thus only "those would-be plaintiffs not even 'arguably within the zone of interests to be protected or regulated by the statute. . . .'" should be excluded on prudential grounds. Id. at 397 (quoting Data Processing, 397 U.S. at 153).
Plaintiffs contend that they are the intended beneficiaries of the National Housing Act. See 42 U.S.C. § 1441.
Defendant concedes that plaintiffs are the intended beneficiaries of Section 1441. But he contends that because plaintiffs challenge the single-family property disposition program -- a part of the National Housing Act -- only that portion of the statute should be examined when defining the relevant zone of interests.
In his view, Section 1441 is irrelevant to the inquiry. In support of this theory, he relies on Tax Analysts and Advocates v. Blumenthal, 184 U.S. App. D.C. 238, 566 F.2d 130 (D.C.Cir. 1977), cert. denied, 434 U.S. 1086, 55 L. Ed. 2d 791, 98 S. Ct. 1280 (1978), where the D.C. Circuit refused to examine provisions of the tax code other than the provision at issue when considering whether plaintiff fell within the zone of interests:
The question then becomes: does the court look to this section of the statute (the Code) to determine which interests are arguably to be regulated or protected for purposes of the zone test, or should the court look to other sections of the statute for evidence of arguable regulatory or protective intent? The Supreme Court decisions dealing with the zone test do not provide a conclusive answer to this inquiry. . . . We shall look only to Section 901 of the Code.