OPINION OF THE COURT
SEITZ, Chief Judge.
Plaintiffs are five purchasers of homes whose mortgages were insured by the Federal Housing Administration (FHA). Insurance on these mortgages was issued under the "existing home" provisions of §§ 221 and 235 of the National Housing Act, 12 U.S.C. §§ 1715l and 1715z (1970).
Plaintiffs moved for partial summary judgment supported by affidavits. Defendants filed no opposing affidavits but moved for dismissal of the complaint. The district court granted plaintiffs' motion in part, declaring that the FHA officials had violated the Act and enjoining them from insuring mortgages on properties not complying with the Housing Code. The court denied defendant-officials' motion to dismiss the complaint against them but granted the government's motion to dismiss the portion of the complaint seeking damages against the United States. 355 F.Supp. 29 (E.D.Pa.1973). Plaintiffs appeal the dismissal of their damage complaint, and defendants appeal the grant of partial summary judgment to plaintiffs.
We turn first to the defendants' appeal. Since they filed no counter affidavits they, of course, limit themselves to asserting reasons why the legal conclusions on which the summary judgment rests are erroneous.
Defendants first contend that the district court was without jurisdiction to entertain the claims on which judgment was granted for plaintiffs because plaintiffs lack standing to sue for injunctive and declaratory relief. Where, as here, an action is brought in federal court challenging federal administrative action as inconsistent with a statute, the plaintiff must meet two requirements to show standing: (1) the challenged action must have injured some interest of the plaintiff, and (2) Congress must have intended that plaintiff be permitted to seek judicial review of such statutory violations. Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); see Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153-154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Defendants do not deny that plaintiffs have met the first standing requirement. Defendants do, however, contend that plaintiffs do not satisfy the second standing requirement. Unlike the first requirement, the requisite of Congressional authorization does not derive from the limitation of Article III courts to decision of cases or controversies; it is not designed to ensure a contest between adverse interests. Instead, the second standing requirement derives from Congressional power to regulate, within limits, jurisdiction of the federal courts. See Sierra Club v. Morton, supra at 732 n. 3 of 405 U.S. 92 S.Ct.
Although the precise limits of Congressional power over federal jurisdiction are not clearly drawn, it is settled law that Congress can in legislating confide certain decisions to the discretion of administrative officials, prohibiting judicial review of the correctness of those decisions. E. g., Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). Similarly, subject to due process dictates, Congress can provide for administrative action and limit to a specified class the right to seek judicial review. E. g., L. Singer & Sons v. Union Pacific Railroad Co., 311 U.S. 295, 61 S.Ct. 254, 85 L.Ed. 198 (1940). Thus, where administrative action is challenged as violative of a statute, federal courts must ascertain whether Congress has prohibited or provided for "review at the behest of the plaintiff." Sierra Club v. Morton, supra at 732 of 405 U.S., at 1365 of 92 S.Ct. [footnote omitted].
While it is not universally applicable, the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. (1970), generally serves as the starting point for determining Congressional intent regarding judicial review of federal administrative action.
The theory advanced by defendants in support of this contention is that plaintiff's injured interest is in having the FHA Philadelphia Office insure only mortgages on homes complying with Philadelphia's Housing Code and that the allegedly violated provisions of the National Housing Act do not arguably protect this interest. We think that defendants misconceive the nature of the zone of interests test. The zone of interests test does not focus so precisely as defendants urge on the specifics of the complaint to determine the interest injured or on the allegedly violated statutory provision to determine the protection arguably afforded such interest.
Defendants argue that the relevant interest of plaintiffs for APA standing purposes is their interest in obtaining a remedy — FHA insurance of mortgages only on homes meeting housing code standards. That argument confuses the relevant interest for standing purposes under the APA with the merits of the case. This confusion is inherent in the "legal interest" test that some courts found embodied in the APA before the Supreme Court's rejection of that interpretation in Data Processing. The District Court, following the Data Processing test for determining whether a person is adversely affected or aggrieved as that phrase is used in the APA, correctly looked not to the remedy sought, but to the effect the challenged administrative action had on plaintiffs. Plaintiffs alleged an interest in obtaining a "decent home", and their pleadings and affidavits related facts showing that defendants' actions had impaired their ability to secure a decent home. We agree with plaintiffs and the district court that this is the relevant interest and that a sufficient showing had been
Defendants' contention that plaintiffs' interest was not within the zone of interests of the allegedly violated statute also must fail. Defendants' argument that we must look to the particular provision of the National Housing Act that defendants are charged with violating again confuses standing under the APA with the merits of plaintiffs' claim.
Defendants also contend that the district court lacked jurisdiction over the plaintiffs' claims for injunctive and declaratory relief. Numerous jurisdictional grounds are asserted by plaintiffs. The district court found that it had jurisdiction on each of the asserted grounds, and defendants contest each finding. We reach only one of these findings: that the court below had jurisdiction under 28 U.S.C. § 1337 (1970). Section 1337, without qualification as to the amount in controversy, grants district courts jurisdiction over actions "arising under any Act of Congress regulating commerce ...." Defendants argue that the National Housing Act, under which this suit arises, is not an act regulating commerce within the meaning of § 1337.
In support of their position, defendants cite Potrero Hill Community Action Committee v. Housing Authority, 410 F.2d 974 (9th Cir.1969). In Potrero Hill, the Ninth Circuit held that the Housing Act constitutes welfare legislation, not legislation regulating commerce within § 1337. Id. at 979. The Potrero Hill court did not detail the analysis that supported its conclusion. Whatever reasoning supports that result, the law in this Circuit mandates a contrary conclusion. We stated in Imm v. Union Railroad Co., 289 F.2d 858 (3d Cir.1961), that any act "based on the power of Congress to regulate interstate commerce" is an act regulating commerce within the meaning of § 1337. Id. at 860. Defendants urge that a qualification implicit in the unqualified language of Imm is that the commerce power must be a significant source of federal power in enacting a statute for it to be an act regulating commerce. See Murphy v. Colonial Federal Savings & Loan Association, 388 F.2d 609, 615 (2d Cir.1967). Assuming such qualification to be embodied in Imm, we nonetheless find that the district court had jurisdiction over this case under § 1337. The commerce power clearly is a significant source of federal power for the National Housing Act, which was largely designed to stimulate the building trades
One further contention advanced by defendants to contest jurisdiction here is that plaintiffs' claim is frivolous and insubstantial, and, therefore, the court's jurisdiction must fail. Where, as here, the only dispute is a matter of federal law, federal "[j]urisdiction ... is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover." Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); see Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271, 273-274, 43 S.Ct. 540, 67 L.Ed. 977 (1923) (per Holmes, J.). Whether a cause of action has been stated in such cases is a matter of federal law that courts must exercise their jurisdiction to decide. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Bell v. Hood, supra at 682 of 327 U.S. 66 S.Ct. 773. Thus, we find that the district court had jurisdiction under § 1337 irrespective of the merits of plaintiffs' complaint.
Once over the jurisdictional hurdle, we must decide two questions of procedure before reaching defendants' contention on the merits. The first procedural question defendants raise is whether this suit is properly a class action. Plaintiffs' complaint seeks relief for the five named plaintiffs and for past, present and future Philadelphia purchasers of homes with mortgages insured under §§ 221 or 235 of the National Housing Act. Plaintiffs filed a motion for class action determination. Defendants did not oppose the motion below. They contend, however, that this cannot be treated as a class action because the district judge never entered an order determining this to be a class action.
Rule 23 of the Federal Rules of Civil Procedure declares that "[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." Fed.R.Civ.P. 23(c)(1). Rule 23 also requires the district court to include in its judgment a description of "those whom the court finds to be members of the class." Fed.R.Civ.P. 23(c)(3). The court below failed to comply with either of the requirements set forth above.
Plaintiffs have the burden of showing that they represent a class. See J. Moore, 3B Moore's Federal Practice ¶ 23.02-2 (2d Ed.1969). Because the class action determination affects the rights of class members not before the court, as well as named plaintiffs and defendants, it is not sufficient that plaintiffs make an uncontested motion for a class determination. The Rules impose the additional requirements of class determination and definition on the district judge. Relief cannot be granted to a class before an order has been entered determining that class treatment is proper. Cf. Dorfmann v. Boozer, 134 U.S.App.D.C. 272, 414 F.2d 1168, 1171 n.8 (1969). And, since the class was not defined by order or in the judgment below, neither the parties nor this Court has any way of knowing what class would be bound. In light of the failure to meet the plain requirements of Rule 23 for maintenance of a class action, we must view the claim for injunctive and declaratory relief as the individual claim of the named plaintiffs.
SUMMARY JUDGMENT — UNREQUESTED RELIEF
The second procedural point that must be resolved before reaching the merits is defendants' contention that the District Court erred by granting relief on summary judgment not requested in plaintiffs' motion for partial summary judgment. Defendants correctly note that
Even were it not clear from these facts that the motion for partial summary judgment was intended to comprehend plaintiffs' request for injunctive and declaratory relief, granting such relief here would not be error. Rule 54 of the Federal Rules of Civil Procedure states that, except in the case of default judgments, "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." Fed.R.Civ.P. 54(c). The provision of Rule 54 is applicable to summary, as well as other, judgments. J. Moore, 6 Moore's Federal Practice ¶ 54.62 (2d Ed. 1969). We, therefore, reject defendants' contention that it was error for the court below to grant summary relief not explicitly requested in plaintiffs' motion.
SUMMARY JUDGMENT — MERITS OF THE CLAIM
The essentials of the claim advanced by plaintiffs are relatively easily stated. 12 U.S.C. § 1715l(d)(2) (1970) [§ 221(d)(2)], incorporated by reference in § 1715z(i)(2) [§ 235], provides:
Plaintiffs argue that the Philadelphia Housing Code is an ordinance applicable to homes in Philadelphia, that they purchased homes in Philadelphia, insured by FHA, which did not meet Code standards, and that the defendant-FHA and HUD officials, therefore, have violated the statutory directive. Defendants dispute each point of plaintiffs' argument.
First, defendants claim that the Philadelphia Housing Code is not an applicable local ordinance within the meaning of § 221(d) (2). In support of this claim, defendants invoke statutory history, quoting a House Report's statement that "[e]xisting housing units ... would be eligible under [§ 235] if the units meet standards prescribed by the Secretary [of HUD]." H.R.Rep.No.1585, 90th Cong., 2d Sess. 8 (1968), U.S.Code Cong. & Admin.News 1968, p. 2880. From this quoted statement, defendants urge us to find that housing approved for FHA mortgage insurance need only meet standards set by the Secretary of HUD and not local code standards. The remainder of the paragraph from which defendants quote, however, makes clear that the standards referred to do not supplant other statutory requirements such as compliance with local ordinances; instead, the paragraph refers to an additional limitation: mortgage insurance under § 235 is conditional on the Secretary's allocation of sufficient FHA insurance funds to existing housing in the particular area.
Defendants next argue that they have complied with the Philadelphia Housing Code. Having failed to file affidavits in opposition to the plaintiffs' motion for summary judgment, defendants cannot contest the district court's finding that plaintiffs' homes do not, and did not at the time the FHA insured mortgages on them, meet Philadelphia Housing Code standards. Defendants' contention instead is that they, not the homes, complied with the Code; the Code does not require an inspection before sale of an existing home; no inspection was made, hence no violations discovered. To require that FHA inspect homes to uncover Code violations before insuring mortgages on them would, defendants assert, impose on FHA an obligation not contained in the Code.
In considering defendants' argument, we note that § 221(d)(2) requires not that the actions of FHA officials responsible for insuring mortgages comply with local regulations, but rather that the properties securing the FHA-insured mortgages comply. We need not, however, decide whether § 221(d)(2) requires that the FHA conduct inspections to assure that homes for which FHA has made tentative mortgage insurance commitments are free from all Code violations. Plaintiffs' uncontested affidavits establish that Philadelphia FHA officials have not made any attempt to determine whether homes are subject even to major code violations. The narrowest reading we could give to § 221(d)(2) would require that defendants make reasonable efforts to ascertain that the homes securing FHA-insured mortgages meet Philadelphia Housing Code standards. Since the facts established below demonstrate that this has not been done, plaintiffs properly prevailed on the merits of their claim.
Finding merit in plaintiffs' claim, we turn to defendants' final contention: that named plaintiffs are not entitled to declaratory or injunctive relief. In part, this contention is a recast version of defendants' argument on standing. Defendants urge us, in effect, to find that plaintiffs have no legal right to relief and, therefore, that their suit for declaratory and injunctive relief should be dismissed. Although the cases requiring plaintiffs to have a "legal right" to satisfy standing requirements have been rejected, we are asked to find that plaintiffs must show a legal right to the relief granted.
Since the merger of law and equity sides in federal courts, there has been an increasing tendency to ignore the former distinctions between law and equity. Certainly, former procedural distinctions properly have been abandoned. See Fed.R.Civ.P. 1. Nonetheless, some differences remain. To secure relief on a claim at law, a plaintiff must, by definition, show that he has a "legal right." Thus, one who seeks to secure damages for violation of a statute or a constitutional provision must demonstrate a legislative or constitutional intention that the provision relied upon protects the specific plaintiff from harm and comprehends award of damages to him when such harm occurs. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 395-397, 91 S.Ct. 1999, 29 L. Ed.2d 619 (1971); J. I. Case Co. v. Borak, 377 U.S. 426, 431-433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Where, however, equitable remedies are sought, there is no requirement that the plaintiff be invested with a legal right. See Scripps-Howard Radio, Inc. v. Federal
Before addressing the rest of defendants' argument on this contention, we feel impelled to comment on the effect the Supreme Court's recent decision in National Railroad Passenger Corp. v. National Association of Railroad Passengers, ___ U.S. ___, 94 S.Ct. 690, 38 L.Ed.2d 646 (January 9, 1974), must have on our determination. The Supreme Court's decision (hereinafter "Amtrak"), rendered after argument in this case, resulted in dismissal for failure to state a cause of action of a private injunctive suit to enforce the "Amtrak Act." The only statute claimed to give the Amtrak plaintiffs a cause of action was the Amtrak Act, and after reviewing the pertinent legislative history, the Court concluded that Congress had intended to preclude injunctive suits for enforcement of the Act other than those specifically authorized in the Act.
We need not make a similar inquiry into the National Housing Act at this point since the plaintiffs here have asserted a valid cause of action for equitable relief under the Administrative Procedure Act. As relevant, the APA provides that "except to the extent that statutes preclude judicial review ... [a] person ... adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof." 5 U.S.C. §§ 701, 702 (1970). The form of action prescribed is "any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction ...." 5 U.S.C. § 703 (1970). As set forth above, the plaintiffs meet the requirements of these APA provisions, and no question of unreviewability has been raised. We, thus, find no merit in defendants' contention to the extent that it might, in light of Amtrak, be read as challenging plaintiffs' statement of a cause of action.
Defendants' contention, however, embraces another idea: that the relief granted plaintiffs must be calculated to redress the wrong to them. This idea clearly is incorporated into the federal law of declaratory judgments. In the early part of this century, the ability of federal courts to render declaratory judgments consistent with the Constitution was the subject of considerable debate. The debate ended with the Supreme Court's decision in Aetna Life Insurance v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). Haworth upheld the constitutionality of the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1970), noting that the Act limited availability of declaratory judgments to instances of actual controversy between parties asserting adverse interests. 300 U.S. at 239-42. The Supreme Court has repeatedly reaffirmed the Haworth declaration that declaratory judgments are not appropriate for decision of abstract questions but must be confined to resolving the interests of contesting parties. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 272-273, 61 S.Ct. 510, 85 L.Ed. 826 (1941).
To sustain the declaratory judgment, then, we must determine that the issue resolved was central to an immediate, legal dispute between the parties
The argument may be advanced that the declaratory judgment rendered failed to settle the rights of the named parties. See United States Fidelity & Guaranty Co. v. Koch, 102 F.2d 288, 294 (3d Cir.1939); J. Moore, 6A Moore's Federal Practice ¶ 57.08  (2d Ed. 1969). Were the district court faced with the claim for declaratory judgment alone, its declaratory judgment, which only construes the statute and does not declare the rights of parties before it to further relief, might be subject to attack as a mere abstract declaration of law. Declaratory judgments, however, are available where appropriate even though other remedies are also available, 28 U.S.C. § 2201 (1970), and here the district court was required to rule on claims for injunctive and damage, as well as declaratory, relief. Where in the same suit a district court determines the rights of specific parties to other relief, we cannot say that a declaratory judgment limited to construction of the statute from which plaintiffs claimed their right to relief flowed is an abstract declaration.
Defendants' contention that the relief granted was improper extends to injunctive as well as declaratory relief. While plaintiffs may secure redress for violations of the National Housing Act even though they have no legal right to administrative compliance with the Act, plaintiffs are entitled only to redress of their personal grievances. Injunctions, which carry possible contempt penalties for their violation must be tailored to remedy the specific harms shown rather than to "enjoin `all possible breaches of the law.'" Hartford-Empire Co. v. United States, 323 U.S. 386, 410, 65 S.Ct. 373, 385, 89 L.Ed. 322 (1945); Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 49 L.Ed. 518 (1905). The injunction sought and granted below does not affect plaintiffs in any way. The injunction prevents defendants from insuring mortgages under the §§ 221 and 235 programs on homes in Philadelphia that do not comply with the Philadelphia Housing Code. None of the plaintiffs alleges any intent to purchase another home under those programs. Plaintiffs instead allege that they are now living in homes not meeting Code standards and are unable to secure funds to repair their homes. We find that the injunction granted by the district court was not framed to remedy the harm to plaintiffs.
JURISDICTION OVER DAMAGE CLAIM — TUCKER ACT
We now take up consideration of plaintiffs' appeal from dismissal of their
The jurisdictional basis asserted by plaintiffs is the Tucker Act provision giving district courts jurisdiction, concurrent with the Court of Claims, over claims "against the United States, not exceeding $10,000 in amount, founded either upon the Constitution or any Act of Congress ...." 28 U.S.C. § 1346(a) (2) (1970). The district court held that plaintiffs' claim for damages was not "founded upon" an Act of Congress within the meaning of the Tucker Act. The district court's reasoning, advanced by the United States on appeal, was that the Tucker Act grants jurisdiction to award damages to persons who have a statutory right to receive a sum of money; and, since the District Court found that the National Housing Act confers no such right on plaintiffs, the court decided that it had no Tucker Act jurisdiction. We disagree.
As we noted above in connection with the jurisdictional arguments of defendants to the claims for declaratory and injunctive relief, jurisdiction is not defeated by the possibility that plaintiffs will not be entitled to recover. Plaintiffs allege that the National Housing Act implicitly grants them the right to receive damages from the United States for violation of specific provisions. They have asserted a claim "founded upon" an Act of Congress, and their allegation supports the district court's jurisdiction to decide the merits of their claim.
FAILURE TO STATE A CLAIM
The United States also urges us to affirm the dismissal on the ground that plaintiffs failed to state a claim upon which relief could be granted, again advancing the argument that the Tucker Act provides for damage awards only to persons having a right to receive money from the government. Under the view argued by the government, and adopted by the district court, the Tucker Act restores money improperly taken or releases money improperly withheld, but affords no damage remedy for other statutory violations. Plaintiffs assert both that they have a right under the National Housing Act to receive money and that a damage remedy should be implied to protect them from harm where the government fails to comply with the "local ordinance" provision of § 221(d)(2).
The second part of plaintiffs' argument addresses itself to a different point than that primarily argued by the United States. This latter part of plaintiffs' argument is relevant to the existence, or absence, of a cause of action for damages fairly to be inferred from § 221(d)(2). The first part of plaintiffs' argument is relevant to a different point, on which issue is joined by the government: whether the Tucker Act waiver of sovereign immunity extends to damage recoveries on causes of action other than for money wrongly
In order to find a damage remedy implicit in § 221(d)(2), we must determine (1) that the purpose of the provision violated is to protect the class of persons to which plaintiffs belong, and (2) that a damage remedy is necessary to effectuate that purpose. Bivens v. Six Unknown Named Agents, supra at 395-397 of 403 U.S. 91 S.Ct. 1999; J. I. Case Co. v. Borak, supra at 431-433 of 377 U.S. 84 S.Ct. 1555. We are unable to find that § 221(d) (2) was designed to protect plaintiffs. The legislative history is devoid of any clear statement of the purpose for the requirement that homes insured by FHA mortgages comply with local ordinances and regulations. The wording of the provision (requiring that, to be eligible for insurance, mortgages be secured by properties complying with local ordinances) and the context in which it was adopted (as part of a section regulating loan ratios and maximum property value insurable, and permitting other financial restrictions to be imposed as prerequisites to mortgage insurance) support the government's contention that the provision was intended to assure the United States of adequate security for the mortgages FHA insured. See 1959 U.S.Code, Cong. & Ad.News, p. 2857. Given the absence of a clear Congressional intent that § 221(d)(2)'s local ordinance provision protects prospective homeowners, we find no cause of action for damages implicit in the section. The district court order dismissing plaintiffs' claim for damages was correct.
The case is remanded for further proceedings consistent with this opinion.
Existing housing units, however, would be eligible under this program if the units meet standards prescribed by the Secretary. The committee expects that the Secretary will allocate contract funds between existing and new housing units in a manner which furthers the long-range housing goal of providing a decent living environment for all American families. It further expects that, in areas where the housing market is tight and added demand for existing housing could seriously inflate prices, the Secretary will generally permit assistance only with respect to new or substantially rehabilitated dwellings.
The United States claims that it has consented to suit only in cases where the plaintiff had a right to money or property. Had the Bivens plaintiffs sued the United States, the government presumably would have argued on remand that, while a cause of action for damages could be inferred from the Fourth Amendment, sovereign immunity bars recovery because the Fourth Amendment grants no right to receive money, but only a right to be free from certain searches. We do not intimate any view concerning the validity of this approach.