Section 888

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

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Nor would applying the ejusdem generis canon render the phrase "as determined by the Secretary" superfluous. This language, read in context, can be read to vest HUD with discretion to determine whether a qualifying event warrants an SAFMR designation's suspension or a PHA's exemption, such that HUD need not suspend a designation or exempt a PHA each time a designated area or PHA experiences a disaster. This language does not allow HUD to determine whether something qualifies as an "event" in the first place. In other words, § 888.113(c)(4)(iii) gives HUD discretion, but cabins that discretion by allowing its exercise only upon a qualifying "event['s]" occurrence. The defendants compare the phrase "other events as determined by the Secretary" to the language of 49 U.S.C. § 44702(d)(2), which authorizes the Federal Aviation Administration to "rescind a delegation ... at any time for any reason the [agency] considers appropriate"-language the D.C. Circuit held "very clearly commits the renewal/nonrenewal designation to agency discretion." Steenholdt v. FAA , 314 F.3d 633, 638 (D.C. Cir. 2003). The phrase at issue here, however, is considerably narrower than § 44702(d)(2)'s language. Steeholdt , if anything, cuts against the defendants' position by illustrating how an agency might draft a rule that confers the boundless discretion HUD claims to possess.

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