PHA Didn’t Have to Put Disabled Applicant at Top of Waiting List

Facts: An applicant filed a complaint against the Bayonne Housing Authority (BHA), claiming that it unlawfully discriminated against him on the basis of his disabilities when, upon his request for a Section 8 housing voucher, it didn't put him at the top of the applicant list.

BHA had notified the applicant, who was not a resident of Bayonne, that his name had been placed on the waiting list, but that first preference would be given to Bayonne residents, which would subject him to a long wait.

BHA helped the applicant complete forms for his reasonable accommodation request and investigated his status. In a letter to the applicant, BHA advised him that there were no reasonable accommodations related to his disability pending at that time upon which BHA could act.

In addition, the letter advised the applicant that the various HUD regulations cited in his reasonable accommodation request concerning the specific instances when BHA may admit a family that's not on the BHA waiting list refer not to the status of the family as disabled, but rather to the status of the property at which the applicant currently resides—that is, within Bayonne. The premises where the applicant currently resides doesn't qualify under these regulations.

BHA advised the applicant that he had a right to request an informal hearing to appeal BHA's decision. But the applicant chose instead to file a complaint in court.

Decision: The court ruled against the applicant and dismissed the case.

Reasoning: The court, while indicating sympathy for the applicant's position, ruled that he had not exhausted his administrative remedies. The court noted that he was advised of the route by which he could pursue an appeal of the denial of his request for a reasonable accommodation—namely, to be placed at the top of the waiting list. But he failed to appeal to BHA's Executive Director, and this precluded his taking advantage of the further appeal available to him. There were no emergent circumstances that required that the applicant be allowed to skip the internal appeals process, and his failure, without more, warrants dismissal of the case, the court concluded.

In addition, the court stated that even if the applicant pursued his administrative appeal, the review would have resulted in BHA's denial of his reasonable accommodation request for placement at the top of the waiting list. The court reasoned that since there's no provision in the BHA Plan that would enable a disabled person in the applicant's position to bypass the waiting list, the applicant essentially had no case. BHA was entirely in its discretion in establishing a pecking order in which local preference would be used to select among applicants on the waiting list without regard to federal preferences.

• Castro v. Bayonne Housing Authority, November 2010