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/ ↗

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The defendants contend that the Rule's overall context shows that ejusdem generis does not apply, identifying three aspects of the Rule that the defendants characterize indicating "an intent to be expansive." Defs.' Opp'n at 24-25. Although "the ejusdem generis canon does not control when the whole context dictates a different conclusion," Wallaesa , 824 F.3d at 1081 (alterations and internal quotation marks omitted), the defendants' argument actually ignores the regulation's pertinent context and precise language. The defendants observe that the regulation uses "self-contained, broadly permissive *168language." Defs.' Opp'n at 25. The ejusdem generis canon applies, however, to language that otherwise reads broadly. See Wallaesa , 824 F.3d at 1081. The defendants note that "the language introducing the enumerated examples contains no indication that those examples are meant to restrict the circumstances under which HUD may find a suspension warranted." Defs.' Opp'n at 25. The ejusdem generis canon, however, requires no clear statement that specific language limits general language's scope. Indeed, to require such clarity would defeat the canon's purpose of clarifying ambiguous statutes. Finally, the defendants observe that the third action's wording "specifically states that the nature of the referenced 'events' are those that are 'determined by the Secretary,' not those that are similar in kind to the preceding examples," which the defendants argue "forecloses the notion that the nature of the 'events' referenced therein is to be limited by the preceding examples." Id. That HUD has some discretion to determine which events justify suspending an SAFMR designation is undisputed, however; the question is whether that discretion is bounded. Here, the sequence of two specifically-phrased actions followed by a generally-phrased third action indicates that the first two actions limit HUD discretion under the third action. To construe the third action as reaching any event the first two actions do not reach would defeat the purpose of enumerating an exclusive list of "[a]ctions that may serve as the basis of a suspension of Small Area FMRs." 24 C.F.R. § 888.113(c)(4).