PHA Has Discretion to Determine Waiting List Placement

Facts: A Section 8 applicant sued the local PHA and HUD for placing him on the waiting list for Section 8 housing. The applicant claimed that he suffers from various mental disabilities. He alleged that his placement on the waiting list violates his rights under the Equal Protection and Due Process Clauses of the United States Constitution.

The applicant voluntarily dismissed his claims against the PHA. But he asked the court to require HUD to make accommodations for his disabilities and to administer Section 8 housing to him. HUD asked the court to dismiss the applicant’s claims for failure to state a claim.

Ruling: An Oregon district court granted HUD’s request to dismiss the applicant’s claims.

Reasoning: The court noted that HUD regulations specifically provide that an applicant doesn’t have any right or entitlement to be listed on a PHA waiting list, to any particular position on the waiting list, or to admission to the programs [24 C.F.R. § 982.202(c)]. It is at the sole discretion of the PHA to determine whether to place an applicant on a waiting list and to determine the applicant’s position on that list.

Thus, courts have concluded that when a PHA either fails to place an individual on a waiting list or does not accord an individual a preferential place on the waiting list, it does not give rise to a cause of action. Accordingly, the court here concluded that the applicant cannot bring a claim against HUD under the circumstances of this case because HUD regulations specifically provide applicants do not have “any right or entitlement . . . to any particular position on the waiting list” and discretion is reserved to the PHA to determine whether and where to place an applicant on the waiting list.

• Emrit v. MCRA and HUD, February 2017