DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Section 8

Citation
Section 8
Parent Document
Theodore Hayes v. Philip Harvey, 874 F.3d 98 (2017)
Effective Date
2017-10-18
Original Source
https://www.courtlistener.com/opinion/4435296/theodore-hayes-v-philip-harvey/ ↗

Other Sections in This Document (260)

Full Text

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The text of the statute, as well as its history and structure, makes clear that Congress has granted enhanced voucher holders a right to remain. The majority’s interpretation of the statute, which holds that Congress offered tenants no new right when it amended the enhanced voucher statute to provide that tenants “may elect to remain” in their homes, is plainly foreclosed. As between “some right to remain” and “no right to remain,” Congress’s choice is clear. But as is often the case, the text does not detail the precise bounds of that right to remain: that task has been left to the courts and to HUD, both of which have undertaken it. The majority declines the responsibility here.7 Because Congress chose to use solely the “may elect to remain” language, rather than a detailed elaboration of the right to remain, it has left a gap in the statute. “Filling these gaps ... involves difficult policy choices that agencies are better equipped to make than courts,” Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), and in the first instance, I would look to HUD to define the details of the right to remain. Because HUD has, in fact, stepped into that gap and expanded on the statutorily-required right to remain, it is to HUD’s interpretation I now turn. instance, I would look to HUD to define the details of the right to remain. Because HUD has, in fact, stepped into that gap and expanded on the statutorily-required right to remain, it is to HUD’s interpretation I now turn. [[Image here]]