                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2005

Cudjoe v. Dept Veteran Affairs
Precedential or Non-Precedential: Precedential

Docket No. 04-3003




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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT



                     No. 04-3003



       DERRYEN D. CUDJOE, A Minor Child
By and Through his Natural Guardians and Next Friends,
       BARBARETTE and DERRY CUDJOE,
                                         Appellants

                          v.

   DEPARTMENT OF VETERANS AFFAIRS;
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs;
            ROGER W. ROBERT



    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
         D.C. Civil Action No. 03-cv-05367
            (Honorable Legrome D. Davis)



                Argued May 24, 2005
              Before: SCIRICA, Chief Judge,
            ALITO and ROSENN, Circuit Judges

                  (Filed: October 13, 2005)

SHARON A. ZIEGLER, ESQUIRE (ARGUED)
5118 Foxfire Trail
Kingsport, Tennessee 37664
      Attorney for Appellants

SUSAN D. BRICKLIN, ESQUIRE (ARGUED)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
       Attorney for Appellees,
       Department of Veterans Affairs and
       Anthony J. Principi, Secretary of Veterans Affairs

EDWARD J. SCHWABENLAND, ESQUIRE (ARGUED)
Schwabenland & Ryan, P.C.
995 Old Eagle Road, Suite 306
Wayne, Pennsylvania 19087
      Attorney for Appellee,
      Roger W. Robert




                              2
                 OPINION OF THE COURT



SCIRICA, Chief Judge.

        At issue is whether the United States has waived
sovereign immunity to suits for money damages under certain
provisions of the Residential Lead-Based Paint Hazard
Reduction Act, 42 U.S.C. § 4851 et seq., and the Toxic
Substances Control Act, 15 U.S.C. § 2601 et seq.

       Plaintiff filed suit against the Department of Veterans
Affairs and a private landlord for unlawfully failing to disclose
lead paint contamination in a leased apartment. Finding no
express waiver of sovereign immunity, the District Court
dismissed the claims for lack of subject matter jurisdiction. It
also declined to exercise supplemental jurisdiction over related
causes of action under state law. We will affirm the judgment
on waiver of sovereign immunity, but vacate and remand the
claims against the landlord for further proceedings.

                               I.

       Plaintiff Derryen Cudjoe filed a complaint, by and
through his natural guardians and next friends Barbarette and
Derry Cudjoe, alleging the Department of Veterans Affairs and
landlord Roger W. Robert violated federal law by failing to
disclose information concerning lead contamination when his


                               3
family leased an apartment in 2000 at 197 East 198th Street,
Chester, Pennsylvania.1 Cudjoe asserts federal causes of action
under the Residential Lead-Based Paint Hazard Reduction Act
and the Toxic Substances Control Act (Count I), as well as
common law claims of negligence (Count II), against the
Department of Veterans Affairs and Robert. The complaint also
includes common law claims of negligent misrepresentation and
omission (Count III), and intentional misrepresentation and
omission (Count IV), against Robert alone.

       After residing in the apartment for several months,
Cudjoe, then two years old, tested positive for high
concentrations of lead in his blood. The family vacated the
apartment. The Bureau of Health of the City of Chester
examined the property in November 2000, and found dangerous
levels of lead paint and dust throughout the premises.
Nevertheless, the complaint was not filed until September 24,
2003.

       Robert answered the complaint, counter-claimed that
Cudjoe’s injuries were caused by his parents, and brought cross-
claims against the Department of Veterans Affairs for liability,

    1
      Cudjoe alleges the Department of Veterans Affairs held
record title to the property, while Robert held a possessory
and/or other ownership interest. The Department of Veterans
Affairs disputes that it owned the property at the relevant time,
but the issue was never reached because the case was dismissed
for lack of subject matter jurisdiction.

                               4
indemnification and/or contribution. Without filing an answer,
the Department of Veterans Affairs moved to dismiss the
complaint for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1), contending that neither the
Residential Lead-Based Paint Hazard Reduction Act nor the
Toxic Substances Control Act, alone or in conjunction, waived
the government’s sovereign immunity against private suits for
money damages. The Department of Veterans Affairs argued
Cudjoe should have proceeded instead under the Federal Tort
Claims Act, 28 U.S.C. § 2671 et seq. Cudjoe, however, failed
to exhaust his administrative remedies under the Federal Tort
Claims Act, and his claim is now barred by its two-year statute
of limitations, 28 U.S.C. § 2401(b). Cudjoe argued in response
that he was not required to proceed under the Federal Tort
Claims Act because the Residential Lead-Based Paint Hazard
Reduction Act and the Toxic Substances Control Act, in
conjunction with one another, waive sovereign immunity and
provide an independent cause of action. The District Court
granted the government’s motion to dismiss, Cudjoe ex rel.
Cudjoe v. Dep’t of Veterans Affairs, 2004 WL 1447834 (E.D.
Pa. Jun. 28, 2004), and Cudjoe filed this timely appeal.

                               II.

       We have jurisdiction under 28 U.S.C. § 1291 over the
appeal from the order granting the motion to dismiss for lack of
subject matter jurisdiction. In this facial attack under Federal
Rule of Civil Procedure 12(b)(1) challenging the court’s subject
matter jurisdiction, we treat the allegations in the complaint as

                               5
true, making the disposition of the motion a purely legal
determination. Haydo v. Amerikohl Mining, Inc., 830 F.2d 494,
495-96 (3d Cir. 1987) . Our review is plenary. Id.

                              III.

        Cudjoe’s contention that the United States has waived
sovereign immunity to private suits claiming money damages for
failure to disclose lead-paint contamination draws on separate
provisions in the Toxic Substances Control Act and the
Residential Lead-Based Paint Hazard Reduction Act.2
Specifically, he claims the waiver of sovereign immunity with
respect to lead paint in 15 U.S.C. § 2688 exposes the United
States not only to the Toxic Substances Control Act’s penalties,
but also to the private cause of action for treble damages under
the Residential Lead-Based Paint Hazard Reduction Act, 42
U.S.C. § 4852d(b)(3). Cudjoe argues these provisions provide
him with a right to sue the Department of Veterans Affairs
directly, without using the procedures set forth in the Federal
Tort Claims Act.




     2
      As discussed more fully in part B, infra, the relevant
provisions were enacted at the same time as part of Title X of
the Housing and Community Development Act of 1992, an
omnibus housing bill signed into law on October 28, 1992. The
provisions were subsequently codified under separate titles of
the United States Code.

                               6
      We reproduce and summarize the provisions at issue.
The waiver of sovereign immunity with respect to lead paint in
the Toxic Substances Control Act states in part that:

      Each department, agency, and instrumentality of
      executive, legislative, and judicial branches of the
      Federal Government (1) having jurisdiction over
      any property or facility, or (2) engaged in any
      activity resulting, or which may result, in a lead-
      based paint hazard, and each officer, agent, or
      employee thereof, shall be subject to, and comply
      with, all Federal, State, interstate, and local
      requirements, both substantive and procedural
      (including any requirement for certification,
      licensing, recordkeeping, or reporting or any
      provisions for injunctive relief and such sanctions
      as may be imposed by a court to enforce such
      relief) respecting lead-based paint, lead-based
      paint activities, and lead-based paint hazards in
      the same manner, and to the same extent as any
      nongovernmental entity is subject to such
      requirements, including the payment of
      reasonable service charges. The Federal, State,
      interstate, and local substantive and procedural
      requirements referred to in this subsection
      include, but are not limited to, all administrative
      orders and all civil and administrative penalties
      and fines regardless of whether such penalties or


                               7
       fines are punitive or coercive in nature, or
       whether imposed for isolated, intermittent or
       continuing violations. The United States hereby
       expressly waives any immunity otherwise
       applicable to the United States with respect to any
       such substantive or procedural requirement
       (including, but not limited to, any injunctive
       relief, administrative order, or civil or
       administrative penalty or fine referred to in the
       preceding sentence, or reasonable service charge).
       The reasonable service charges referred to in this
       section include, but are not limited to, fees or
       charges assessed for certification and licensing, as
       well as any other nondiscriminatory charges that
       are assessed in connection with a Federal, State,
       interstate, or local lead-based paint, lead-based
       paint activities, or lead-based paint hazard
       activities program.

15 U.S.C. § 2688. The provision submits entities of the federal
government to any federal, state or local “substantive and
procedural requirement” regarding lead paint hazards, waiving
the United States’ sovereign immunity to such requirements.

        The Residential Lead-Based Paint Hazard Reduction Act
is a disclosure statute requiring a seller or lessor of residential
target housing (1) to provide the purchaser or lessee with a lead
hazard information pamphlet (as described in 15 U.S.C. § 2686);
(2) to disclose the known or possible presence of lead-based

                                8
paint or other lead hazards; (3) to provide information about
lead hazards; and (4) to allow the purchaser or lesseee a ten-day
risk assessment period.3 42 U.S.C. § 4852d(a). A seller or
lessor who knowingly violates these requirements is subject to
the following penalties:

       (1) Monetary penalty
       Any person who knowingly violates the
       provisions of this section shall be subject to civil
       money penalties in accordance with the provisions
       of section 3545 of this title.

       (2) Action by Secretary
       The Secretary [of Housing and Urban
       Development] is authorized to take such lawful
       action as may be necessary to enjoin any violation
       of this section.

       (3) Civil liability
       Any person who knowingly violates the
       provisions of this section shall be jointly and
       severally liable to the purchaser or lessee in an


  3
    Target housing is defined as “any housing constructed prior
to 1978, except housing for the elderly or persons with
disabilities (unless any child who is less than 6 years of age
resides or is expected to reside in such housing) or any 0-
bedroom dwelling.” 40 C.F.R. § 745.103.

                                9
       amount equal to 3 times the amount of damages
       incurred by such individual.

       (4) Costs
       In any civil action brought for damages pursuant
       to paragraph (3) the appropriate court may award
       court costs to the party commencing such action,
       together with reasonable attorney fees and any
       expert witness fees, if that party prevails.

       (5) Prohibited act
       It shall be a prohibited act under section 409 of
       the Toxic Substancess Control Act [15 U.S.C. §
       2689] for any person to fail or refuse to comply
       with a provision of this section or with any rule or
       order issued under this section. For purposes of
       enforcing this section under the Toxic
       Substancess Control Act [15 U.S.C. § 2601 et
       seq.] the penalty for each violation applicable
       under section 15 of that Act [15 U.S.C. § 2615]
       shall not be more than $10,000.

42 U.S.C. § 4852d(b)(1)-(5). Subsections (1) and (2) provide
the Secretary of Housing and Urban Development with the
power to impose monetary penalties and seek injunctions in
federal court for violations of § 4852d(a)’s disclosure
requirements. Subsections (3) and (4) create a private right of
action for treble damages and costs against any person who

                               10
violates the disclosure requirements. Subsection (5) defines
non-disclosure of lead-paint hazards as a “prohibited act” under
the Toxic Substances Control Act, making it subject to
enforcement by the Environmental Protection Agency.

        The crux of Cudjoe’s appeal is that § 4852d(b)(3)’s
private suit for money damages constitutes a “substantive and
procedural requirement” to which the United States has waived
immunity under 15 U.S.C. § 2688. In support of this view,
Cudjoe points out that § 2688, though codified in the Toxic
Substances Control Act, grew out of the same resolution in the
House of Representatives (H.R. 5334), public law (P.L. 102-
550) and section of the public law (Title X) as the Residential
Lead-Based Paint Hazard Reduction Act. Cudjoe contends that
the statute as enacted indicates that Congress intended to subject
federal agencies to direct liability. Cudjoe also relies on the
Environmental Protection Agency’s assertion in its Rule
Enforcement Policy handbook that it can enforce the Residential
Lead-Based Paint Hazard Reduction Act against federal
agencies that fail to comply with the disclosure requirements of
42 U.S.C. § 4852d(a) while acting as seller or lessor.

                               A.

       A waiver of sovereign immunity must be express and
unambiguous in order to confer federal courts with subject
matter jurisdiction. United States v. Bein, 214 F.3d 408, 412 (3d
Cir. 2000); see also United States v. U.S. Fid. & Guar. Co., 309
U.S. 506, 514 (1940) (“Consent alone gives jurisdiction to


                               11
adjudge against a sovereign. Absent that consent, the attempted
exercise of judicial power is void.”). A waiver “must be
unequivocally expressed in statutory text . . . and will not be
implied.” Lane v. Pena, 518 U.S. 187, 192 (1996). With
respect to its scope, any waiver of sovereign immunity must be
strictly construed in favor of the sovereign. Orff v. United
States, 125 S.Ct. 2606, 2610 (2005). “The terms of [the] waiver
define the extent of the court’s jurisdiction. United States v.
Mottaz, 476 U.S. 834, 841 (1986).

        In interpreting the scope of a waiver of sovereign
immunity, we begin with the plain language of the statute. See
New Rock Asset Partners, L.P. v. Preferred Entity
Advancements, Inc., 101 F.3d 1492, 1498 (3d Cir. 1996). As
noted, the plain text of section 2688 of the Toxic Substances
Control Act expressly waives sovereign immunity with respect
to any federal, state, interstate and local “substantive and
procedural requirements” with respect to lead-based paint. 15
U.S.C. § 2688. The statute lists several examples of substantive
and procedural requirements, including, “any requirement for
certification, licensing, recordkeeping, or reporting or any
provisions for injunctive relief and such sanctions as may be
imposed by a court to enforce such relief.” Id. The statute
further states that such requirements include, but are not limited
to, “any injunctive relief, administrative order, or civil or
administrative penalty or fine . . . or reasonable service charge.”
Id.



                                12
       At issue is whether the private right of action for treble
money damages under the Residential Lead-Based Paint Hazard
Reduction Act is one of the “substantive and procedural
requirements” to which the government has waived immunity in
15 U.S.C. § 2688. Because a waiver of sovereign immunity
must be unambiguously expressed and may not be implied,
Pena, 518 U.S. at 192, and must be strictly construed in favor of
the sovereign, Orff, 125 S.Ct. at 2610, we will not interpret
“substantive and procedural requirements” to include a private
suit under 42 U.S.C. § 4852d(b)(3).

        Notably absent from the listed examples of substantive
and procedural requirements is any explicit reference to a
private right of action for money damages. The only language
in 15 U.S.C. § 2688 that perhaps comes close is the submission
to any “civil penalty . . . imposed[.]” But a civil penalty is
defined as “a fine assessed for a violation of a statute or
regulation.” Black’s Law Dictionary 1168 (8th ed. 2004). The
example given in the dictionary is “the EPA levied a civil
penalty of $10,000 on the manufacturer for exceeding pollution
limits.” Id. Similarly, the Residential Lead-Based Paint Hazard
Reduction Act itself distinguishes between “monetary penalties”
(as enforced by HUD under 42 U.S.C. § 3545(f)) on the one
hand, and “civil liability” on the other. Compare 42 U.S.C. §
4852d(b)(1) with 42 U.S.C. § 4852d(b)(3). Because an express,
unambiguous waiver is required to waive sovereign immunity,
we will not construe “civil penalty” under 15 U.S.C. § 2688



                               13
broadly to include the private suit for money damages available
under 42 U.S.C. § 4852d(b)(3).

        Cudjoe contends nonetheless that because the
“substantive and procedural requirements” referred to in 15
U.S.C. § 2688 are “not limited to” the examples listed, the
action for treble damages under 42 U.S.C. § 4852d(3)
constitutes such a requirement. Cudjoe reads too much into
these three words, which provide only that the United States
may be subject to “Federal, State, interstate, and local
substantive and procedural requirements” beyond the examples
given in the text of the statute. In our view, these words cannot
be interpreted to provide that a private suit for money damages
is a “substantive and procedural requirement.”

        Cudjoe’s call for a broad reading of the waiver in 15
U.S.C. § 2688 runs counter to applicable law on waivers of
sovereign immunity. The required standard for finding statutory
waivers to actions for tort damages is that the waiver be
unambiguous. Language subject to varying interpretations will
not be construed as a waiver. United States v. Nordic Village,
Inc., 503 U.S. 30, 37 (1992) (“The foregoing are assuredly not
the only readings of [the statute], but they are plausible ones –
which is enough to establish that a reading imposing monetary
liability on the Government is not ‘unambiguous’ and therefore
should not be adopted.” (finding no waiver of sovereign
immunity in Section 106 of the Bankruptcy Code)); see also
Lane, 518 U.S. at 192 (“To sustain a claim that the Government
is liable for awards of monetary damages, the waiver of

                               14
sovereign immunity must extend unambiguously to such
monetary claims.”). Congress is aware of this standard, and had
it intended to waive immunity to suits for damages, it would
have used more explicit language to do so. Cf. 28 U.S.C. § 2674
(“The United States shall be liable, respecting the provisions of
this title relating to tort claims, in the same manner and to the
same extent as a private individual under like circumstances”).4

       We believe the scope of 15 U.S.C. § 2688 is more
narrow. Construing the waiver in favor of the sovereign, its
plain language subjects the United States to lead-paint
requirements and related penalties, such as fines imposed by the


     4
      Cudjoe speculates that Congress may have intended to
permit plaintiffs to file tort suits against the United States
directly under 15 U.S.C. § 2688 and 42 U.S.C. § 4852d(b)(3) in
order to bypass one of the Federal Tort Claims Act’s exceptions.
One unreported opinion has held that the act’s negligent
misrepresentation exception, 28 U.S.C. 2680(h), bars non-
disclosure claims against the United States under the Residential
Lead-Based Paint Hazard Reduction Act. See Wallace v. United
States, 2004 WL 63503, at *1 (D.R.I. Jan. 8, 2004). Regardless,
the language in 15 U.S.C. § 2688 is not sufficiently clear to
persuade us that Congress intended to supplant the Federal Tort
Claims Act’s procedures by providing a separate avenue for
private suits for money damages. In order to waive sovereign
immunity, Congress would have to express its intent
unambiguously. It has not done so here.

                               15
EPA or state or local regulators. It does not expressly permit
private suits for money damages against the government outside
of the procedures of the Federal Tort Claims Act.

                               B.

        Cudjoe bolsters his broad reading of 15 U.S.C. § 2688
with an argument based on the statute’s enactment. Specifically,
he argues the codification of the relevant statutory provisions
under different sections of the United States Code should not be
dispositive on whether 15 U.S.C. § 2688 waives sovereign
immunity to the private cause of action under 42 U.S.C. §
4852d(b)(3). That the two provisions were enacted in the same
title (Title X–Residential Lead-Based Paint Hazard Reduction
Act of 1992) of the same public law (Pub.L. 102-550), he
contends, compels the conclusion that 15 U.S.C. § 2688’s
waiver applies to the civil remedy provided in 42 U.S.C. §
4852d(b)(3). Our reading of the statute as originally enacted
does not yield the same interpretation.

        Title X of Pub. L. 102-550 is divided into five subtitles,
of which two are relevant here: subtitle A – Lead-Based Paint
Hazard Reduction, which contains the lead-paint disclosure
requirement and penalty provisions (42 U.S.C. §§ 4852d(a) and
4852d(b)), and subtitle B – Lead Exposure Reduction, which
contains the limited waiver of sovereign immunity titled
“Control of lead-based paint hazards at federal facilities” (15
U.S.C. §2688). Subtitle B, unlike subtitle A, is not a stand-alone
statute but an amendment to the Toxic Substances Control Act.


                               16
        Congress’s decision to include the waiver of sovereign
immunity as an amendment to the Toxic Substances Control Act
– a statute which notably provides only for EPA enforcement of
fines and penalties and not for money damages – bears
emphasis. Cudjoe would have a stronger argument if Congress
had decided to place the waiver in subtitle A – which at least
contains a provision allowing suits for money damages against
private parties. Instead, it chose to place the immunity provision
in subtitle B, which does not.5 The placement of the waiver
within the statutory scheme and its plain language fall short of
meeting the requirement that a waiver be unequivocally
expressed in statutory text. Lane, 518 U.S. at 192.

                                C.

       Cudjoe cites the Environmental Protection Agency’s own
interpretation of the statutes in support of his contention that the
United States has waived immunity to the private suits for

   5
    The only citizens’ suits allowed under 15 U.S.C. § 2619 are
to enjoin violations of the Toxic Substances Control Act, not for
money damages. Courts have held that the Toxic Substances
Control Act does not permit private citizens to pursue either
civil penalties available under the statute (which may only be
imposed by the EPA), see, e.g., Pottstown Indus. Complex v.
P.T.I. Servs., Inc., 1992 WL 50084, at *7-8 (E.D. Pa., Mar. 10,
1992) or compensation for personal injuries, see e.g., Sipes ex
rel. Slaughter v. Russell, 89 F. Supp. 2d 1199, 1204-05 (D. Kan.
2000).

                                17
damages under the Residential Lead-Based Paint Hazard
Reduction Act.6 But the EPA handbook states only that the


      6
       The relevant section of the EPA handbook, titled
“Disclosure Rule Enforcement Response Policy–Applicability
to Federal Facilities,” states:

      As discussed in Section III below, the Disclosure
      Rule defines “Seller” and “Lessor” to include
      government agencies. Thus, when a Federal
      facility or government agency is the Seller or
      Lessor of target housing as defined in the statute
      and the rule, the requirements of [42 U.S.C. §
      4852d] and the Disclosure Rule apply to such
      facility or agency.

      [42 U.S.C. § 4852d(b)(5) makes a violation of the
      Disclosure rule a prohibited act under [15 U.S.C.
      § 2689] and the facility or agency is then subject
      to EPA enforcement authority under [15 § U.S.C.
      § 2615]. . . . The Disclosure Rule contains
      Federal requirements respecting lead-based paint,
      lead-based paint activities, and lead-abased paint
      hazards. Therefore, Federal facilities are subject
      to the Disclosure Rule requirements.

Environmental Protection Agency, Section 1018 – Disclosure
Rule Enforcement Response Policy 3-4 (1999). The EPA
distinguishes between the Disclosure Rule and the Residential

                             18
Residential Lead-Based Paint Hazard Reduction Act’s
disclosure requirements apply to federal entities. Nowhere does
it state that the United States is subject to the private suits for
money damages under § 4852d(b)(3).

       This omission is consistent with our reading of 42 U.S.C.
§ 4852d(b)(5). The purpose of this section of the Residential
Lead-Based Paint Hazard Reduction Act is to make violations
of the disclosure requirements of 42 U.S.C. § 4852d subject to
EPA enforcement. Section 4852d(b)(5) makes non-disclosure
a “prohibited act” under the Toxic Substances Control Act,
subjecting the responsible party to EPA fines or penalties. In
other words, the provision imports EPA enforcement under the
Toxic Substances Control Act into the Residential Lead-Based
Paint Hazard Reduction Act as an additional penalty. It does not
export the private right of action of § 4852d(b)(3) into the Toxic
Substances Control Act’s limited waiver of sovereign immunity,
15 U.S.C. § 2688.

       In sum, neither plain language, statutory structure nor the
interpretation in the EPA handbook persuades us that Congress
intended, in 15 U.S.C. § 2688, to allow private citizens to sue


Lead-Based Paint Hazard Reduction Act itself. The “Disclosure
Rule” as referred to in the EPA handbook, means the regulations
for the disclosure of lead-based paint promulgated by EPA and
HUD pursuant to the Residential Lead-Based Paint Hazard
Reduction Act, published on March 6, 1996, and codified at 40
C.F.R. pt. 745(F) and 24 C.F.R. pt. 35(H).

                                19
the United States directly under 42 U.S.C. § 4852d(b)(3), while
bypassing the procedures and requirements of the Federal Tort
Claims Act. Therefore we will affirm the dismissal of Cudjoe’s
claims against the Department of Veterans Affairs.

                               IV.

       The District Court also dismissed the federal statutory
claims and pendant state law claims against the landlord Roger
W. Robert. This error appears to have stemmed from confusion
over whether Robert was a representative of the Department of
Veterans Affairs or a private citizen.

        42 U.S.C. § 4852d(b)(3) plainly creates a private right of
action for damages caused by a private party’s violation of the
Residential Lead-Based Paint Hazard Reduction Act’s
disclosure requirements. It was clarified at oral argument that
Robert is a private citizen unaffiliated with the Department of
Veterans Affairs. Therefore, the court had federal question
subject matter jurisdiction over Cudjoe’s claims against him.
See 28 U.S.C. § 1331. It also appears the District Court could
have exercised supplemental jurisdiction over Cudjoe’s state-
law claims against Robert, since the claims arise out of a
common nucleus of operative facts. See 28 U.S.C. § 1367. We
will vacate the dismissal of these claims and remand for further
proceedings.




                               20
                               V.

        We turn to the matter of standing, an issue briefed by the
parties on appeal but not addressed by the District Court because
it dismissed all claims for lack of subject matter jurisdiction.
The government and Robert contend Cudjoe lacks standing to
sue under 42 U.S.C. § 4852d because he is neither the purchaser
or lessee of the contaminated property. Cudjoe argues his
parents can properly maintain “next friend” prudential standing.
He also asserts standing as an intended beneficiary of the lease
agreement and a designated tenant in the lease. In the
alternative, Cudjoe contends he should be permitted as a matter
of right to amend his complaint to substitute his parents as
plaintiffs.7

        The regulations implementing the Residential
Lead-Based Paint Hazard Reduction Act define “lessee” as “any

   7
    We note that changing the parties may or may not alter the
measure of damages available under the Residential Lead-Based
Paint Hazard Reduction Act. See John P. Fensler & Leonard A.
Bernstein, Lead Poisoning at Home: New Federal Disclosure
Duties, 26 Real Est. L.J. 7, 17-18 (1997) (“[S]ince [the
RLBPHRA] is a disclosure statute, one can only conjecture what
such damages might be. The reduced value of the bargain
weighed down by the presence of lead? Any lead poisoning
injuries that may ensue? Direct damages? Consequential
damages? Class actions? What the buyer or tenant would have
done if he or she had received the disclosure?”)

                               21
entity that enters into an agreement to lease, rent, or sublease
target housing, including but not limited to individuals,
partnerships, corporations, trusts, government agencies, housing
agencies, Indian tribes, and nonprofit organizations.” 24 C.F.R.
§ 35.86. Interpreting this language, certain courts have held that
non-lessee minor children may not sue under the Residential
Lead-Based Paint Hazard Reduction Act because they are not
purchasers or lessees. See L.B. III v. Hous. Auth. of Louisville,
345 F. Supp. 2d 725, 729 (W.D. Ky. 2004); Gladysz v.
Desmarais, 2003 WL 1343033, at *2 (D.N.H. Mar. 17, 2003).
Nonetheless, we have held that a person without express
statutory standing may still have standing to sue if the person
meets the minimum requirements for Article III standing as well
as the additional elements of prudential standing. See Davis ex
rel. Davis v. Phila. Hous. Auth., 121 F.3d 92, 101 (3d Cir. 1997)
(holding minor and his mother, as successor tenants, had
prudential standing to sue under the Lead-Based Paint Poisoning
Prevention Act because they were intended beneficiaries and
within the zone of interests intended to be protected by the
statute).

       We will allow the District Court to address the standing
issues in the first instance. On remand, the District Court will
make its own determinations regarding Cudjoe’s standing under
the Residential Lead-Based Paint Hazard Reduction Act, and
whether he may amend his complaint.




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                               VI.

       We will affirm the dismissal of counts I and II against the
Department of Veterans Affairs and the Secretary of Veterans
Affairs. We will vacate the dismissal of the claims against
Roger W. Robert and remand them to the District Court for
further proceedings consistent with this opinion.




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