PHA May Have Improperly Denied VAWA Protections to Voucher Holder’s Spouse

Facts: A spouse of a voucher holder claimed that the local PHA deprived her of her due process rights by denying her the opportunity to be heard at a hearing to determine the termination of a voucher held by her husband. She wasn’t the voucher holder herself.

In February 2014, she alleged that her husband attempted to rape her. After reporting the incident to the police and obtaining an order of protection against him, she submitted a HUD-91066 Form to the PHA pursuant to the Violence Against Women Act (VAWA) to initiate a bifurcation procedure through which the Section 8 voucher held by the husband could be transferred to her. In June 2015, after she submitted additional paperwork and met with a PHA representative in support of her claim, the PHA, without notifying her, held a hearing regarding the termination of the husband’s Section 8 voucher. After the hearing, the PHA notified a representative at a nonprofit shelter that the Section 8 voucher would remain with the husband. In February 2016, the PHA sent the spouse a letter notifying her that the Section 8 voucher issued to her husband was terminated, with no mention of a process to appeal the decision.

The PHA asked the court to dismiss the case because she had no protected property interest in her husband’s Section 8 voucher because the voucher wasn’t in her name. The spouse argued that VAWA establishes that she has a protected property interest in her husband’s Section 8 voucher.

Ruling: A New York district court denied the PHA’s request and ordered the trial to continue.

Reasoning: The court found VAWA and the PHA’s own administrative plan established procedures to allow the spouse an opportunity to seek eligibility to receive the voucher if the PHA terminated the husband’s voucher. VAWA expressly prescribes a bifurcation procedure to provide certain protections with regard to housing, among other things, for domestic violence survivors. VAWA’s bifurcation procedure allows PHAs to terminate assistance to any individual who engages in activity relating to domestic violence without “penalizing a victim of such criminal activity who is also a tenant or lawful occupant of the housing” [42 U.S.C. Section 14043e-11(b)(3)(B)(i)]. The statute further states that, if the individual who is removed due to involvement in activity relating to domestic violence is the “sole tenant eligible to receive assistance under a covered housing program,” the PHA “shall provide any remaining tenant an opportunity to establish eligibility for the covered housing program” [42 U.S.C.A. Section 14043e-11(b)(3)(B)(ii)].

According to the court, the provision of this opportunity to be heard illustrates that other occupants of a residence secured through a Section 8 voucher who are not the voucher holders themselves nonetheless have some interest in the voucher itself. Furthermore, the PHA’s own Housing Choice Voucher Program Administrative Plan indicated that a domestic violence survivor has rights when the original Section 8 voucher was terminated due to activity related to domestic violence. The Administrative Plan states that the PHA “may exercise its explicit authority to terminate assistance to any individual who is a tenant or lawful occupant and who engages in criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking against affiliated individual or other individual . . . without terminating assistance to, or otherwise penalizing the victim of such violence who is also a tenant or lawful occupant.”

• A.S. v. Been, January 2017