DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Section 888

Citation
Section 888
Parent Document
Open Cmtys. Alliance v. Carson, 286 F. Supp. 3d 148 (2017)
Effective Date
2017-12-23
Original Source
https://www.courtlistener.com/opinion/7328080/open-cmtys-alliance-v-carson/ ↗

Other Sections in This Document (99)

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The Supreme Court's reasoning in Kucana v. Holder , 558 U.S. 233, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010), is instructive. The Attorney General claimed broad, unreviewable discretion, under 8 U.S.C. § 1252(a)(2)(B), to act on a motion to reopen alien removal proceedings, but the Court held otherwise. 558 U.S. at 237, 130 S.Ct. 827. The Court examined the provision's two clauses insulating from judicial review, in clause (i), certain discretionary administrative judgments authorized by specific statutes, and, in clause (ii), "any other decision ... the authority for which is specified under this subchapter." id. at 246, 130 S.Ct. 827. Citing the "lead line" introducing both clauses, the "proximity of clauses (i) and (ii) and the words linking them-'any other decision,' " the Supreme Court reasoned that "[t]he clause (i) enumeration ... is instructive in determining the meaning of the clause (ii) catchall," ultimately reasoning "that Congress had in mind decisions of the same genre," namely, "that Congress barred court review of discretionary decisions only when Congress *165itself set out the Attorney General's discretionary authority in the statute." id. at 246-47, 130 S.Ct. 827. Consequently, the Court held, the judicial review bar encompassed only administrative decisions made discretionary by statute, not by regulation. Id. at 253-54, 130 S.Ct. 827. As with Kucana , the "lead line" in § 888.113(c)(4) is "Actions that may serve as the basis of a suspension of Small Area FMRs are ...," which places all three enumerated actions that follow within the category of actions that justify an SAFMR suspension or PHA exemption. These actions' proximity to the lead line and to one another, as well as the "[o]ther events" term linking the actions, shows that § 888.113(c)(4), "[r]ead harminously," lets HUD suspend an SAFMR designation or exempt a PHA only for reasons "of the same genre" as those in the first two enumerated actions. Kucana , 558 at 246-47, 130 S.Ct. 827.