Disabled Applicant Not Entitled to Top Spot on Waiting List

Facts: A disabled applicant sought rental assistance through the Housing Choice Voucher program. In a separate letter to the housing authority, he also sought reasonable accommodations on account of his and his spouse's disabilities and specifically asked for “special preference admissions from a waiting list.”

The housing authority notified the applicant that his name had been placed on the waiting list for the program and advised him of the status of the waiting list: As of October 2009, applications that had been filed in the third quarter of 2006 were then being reviewed, with first preference being given to local applicants. The housing authority informed him that it could do nothing to improve his status on the waiting list.

Rather than follow housing authority appeal procedures, the applicant filed a complaint against the housing authority in court, alleging disability discrimination. Specifically, he asserted that, since he suffers from multiple serious emotional and physical disabilities and would be required to undergo additional complex surgeries arising from his impairments, the housing authority unlawfully discriminated against him when, upon his request for a Section 8 Housing Voucher, it failed to put him at the top of the applicant list.

The applicant asked the court to order the housing authority to provide him with an immediate exemption or exclusion from the program's waiting list.

Decision: The court denied the applicant's request and ruled for the housing authority.

Reasoning: First, the court noted that the applicant had not exhausted his administrative remedies. He was advised of the route by which he could pursue an appeal of the denial of his request for being placed at the top of the waiting list. He failed to appeal to the housing authority's executive director, which thus precluded him from taking advantage of a further appeal available to him. According to the court, there were no emergency circumstances that required the resident to skip the internal appeals process, so it struck down his request to be immediately placed at the top of the waiting list.

Second, the court noted that even if the applicant had pursued his administrative appeal, it would not have resulted in his placement ahead of those already on the waiting list. The court said that, under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, the applicant would definitely be considered a disabled person. But the court explained that the applicant was not denied a voucher solely by reason of his disability. He was placed on the waiting list for a voucher in the same manner as any other applicant for a voucher. What he sought, the court pointed out, was preferential treatment in the form of being moved to the top of the waiting list ahead of any disabled or nondisabled applicants.

Under HUD regulations, a public housing authority may admit an applicant with certain characteristics as a special admission from the waiting list. But this is within the discretion of the housing authority, and applicants do not have any rights or entitlements to be listed on the waiting list at any particular position.

Finally, the court ruled, the housing authority had adopted a rational Administrative Plan for the Housing Choice Voucher program, and that plan contained no provision that would enable a disabled applicant to bypass the waiting list. Therefore, the court concluded, the applicant is not entitled to preferential treatment.

• Grant v. Bayonne Housing Authority, April 2010