This appeal arises out of a class action seeking declaratory and injunctive relief with regard to a partially completed Urban Renewal Project in Greeneville, Tennessee, which had been approved by the Department of Housing and Urban Development (HUD) for Federal funding. Plaintiffs-appellants are the two classes of citizens who own property (1) within, or (2) near the Project Area. The lone defendant-appellee is the Greeneville Housing Authority, the local agency which administers the Project. HUD was not joined as a defendant.

The district court, having acknowledged its subject matter jurisdiction, conducted a full evidentiary hearing on the appellants' allegations. On the basis of that hearing it found in favor of the Housing Authority on all issues. It is that decision which is the subject of this appeal.

On appeal the appellants attack the Urban Renewal Plan, as proposed by the Housing Authority and approved by HUD, on several grounds. The first is that the Urban Renewal Area boundary as drawn in the Plan is arbitrary, unreasonable, unsupported by the evidence, and in violation of 42 U.S.C.A. Sec. 1460 (a).1

Appellants also attack Principle Object "d" of the Plan which is stated as follows: "To provide additional land area for Pet Dairies, Inc. for needed expansion of plant facilities." Appellants argue that this provision contemplates a taking of their property for the private use of another in violation of the Due Process Clause of the Fourteenth Amendment as well as of Article I, Section 21 of the Tennessee Constitution. A HUD guideline (to be found in HANDBOOK RHA 7205.1, Chapter 1, page 1) provides that "The legal eligibility of a project area must be determined in the light of state and local requirements as well as Federal requirements. . . ." Appellants assert that the Plan, having an unconstitutional provision, violates this guideline.

Finally appellants assert that the notice of the public hearing on the Project as well as the public hearing itself were insufficient both as a practical matter and in a constitutional sense.

We list the appellants' allegations in order to suggest the breadth of the questions at issue. A resolution of these issues would have an impact beyond the parties presently before the court. Specifically, the potential prejudice of a decision on the merits of this case upon HUD, if we were to reverse the judgment below (or for that matter, were we to reach a decision at all), is so substantial that the Secretary of HUD must be considered an indispensable party under Federal Rule of Civil Procedure 19.2

Rule 19, of course, provides criteria for determining whether an unjoined party's interests are sufficiently substantial that a court should not proceed to a decision on the merits in its absence.3 Where an initial appraisal of the facts reveals the possibility that an unjoined party is arguably indispensable, the burden devolves upon the party whose interests are adverse to the unjoined party to negate the unjoined party's indispensability to the satisfaction of the court. A failure to meet this burden results in the necessity of either joinder or dismissal.

In this case Rule 19 was neither litigated at the trial level nor briefed on appeal.4 Nevertheless, the record before us makes it clear that HUD is at least arguably indispensable.

The basis of the appellants' attack is that the Urban Renewal Plan as it now exists violates, inter alia, HUD guidelines and the Urban Renewal Act. Yet it was on the basis of its interpretation of these same provisions that HUD approved the Plan, thus assuring its implementation. Thus, when appellants attack the Plan, they indirectly attack HUD's administrative decision approving the Plan.

In order to grant the relief sought by the appellants this court would be compelled to hold in effect that not only did HUD misinterpret its own guidelines, but that it also misconceived its function and prerogatives under the Urban Renewal Act.5 To make such a determination without joining HUD is to deprive it of the right to defend the integrity of its administrative decisions in these areas which so intimately affect its policies and procedures.

We are most hesitant to set the precedent of allowing the policies and practices of HUD or any other federal agency to be overhauled by the judiciary without at least affording the agency the opportunity to be heard in support of its present operation.

To be weighed against HUD's interests we have the interests of the appellants. Without having given the full consideration that would be required to arrive at a final decision on the merits of this appeal, we can but note that appellants make a somewhat convincing case for several of their grounds for reversal. Unfortunately, the case they make is neither met nor answered by one of the principal parties at interest, the Department of Housing and Urban Development. If we should act on the appellants' appeal we would effectively set aside a HUD project without hearing a single word from HUD.

Nevertheless, in spite of HUD's clear interests we would be reluctant to dismiss the appellants' appeal if such an act would work substantial harm to their rights. Such need not be the case. A dismissal of the appeal does not leave them remediless. Our dismissal of an appeal on this ground would be without prejudice. It is, thus, permissible for the appellants to join HUD as a defendant and assert their claims again in the district court.

We note further that the appellants may pursue their theory of a violation of the Tennessee Constitution in the State Courts of Tennessee. Also the appellants may pursue whatever remedies might be available to them in the appropriate State condemnation proceeding.

In light of the magnitude of the interests of the affected parties in this case we find other relevant concerns, such as the desire for judicial economy, unpersuasive. Any hardship suffered by the appellants is attributable to their own failure to bring HUD into the case as a party.

Our careful examination of the foregoing factors leads us to the conclusion that the potential prejudice to HUD as a result of a decision on the merits of this case far outweighs both the inconvenience which might befall the appellants as the result of a dismissal and concerns over the desire to effect judicial economy which would be served by our proceeding to a decision on the merits.

The appeal is dismissed and the case is remanded to the trial court for entry of an order vacating its judgment of dismissal, provided the plaintiffs elect within a reasonable time, to be determined by the trial court, to move to join the proper representatives of the Department of Housing and Urban Development as defendants.6