A.S. v. Been
228 F. Supp. 3d 315
S.D.N.Y.2017Background
- Plaintiff A.S. lived with her husband, who was the named holder of a Section 8 Housing Choice Voucher administered by NYC HPD.
- In Feb. 2014 Plaintiff reported her husband attempted to rape her, obtained an order of protection, and submitted a HUD-91066 VAWA form seeking bifurcation (transfer of the voucher to her).
- HPD held a termination hearing in June 2015 (without notifying Plaintiff); after the hearing HPD informed an advocate the voucher would remain with the husband and later sent Plaintiff a termination letter that did not mention any appeal rights.
- Plaintiff sued HPD and its Commissioner alleging (1) due process violation, (2–3) disparate treatment/impact under the Fair Housing Act (FHA), (4–5) disparate treatment/impact under the NYC Human Rights Law, and (6) arbitrary and capricious agency action.
- Defendants moved to dismiss, arguing (a) Plaintiff had no property interest in her husband’s voucher, (b) FHA did not apply because the claim did not concern a “dwelling,” and (c) the Court should decline supplemental jurisdiction over state-law claims.
- The Court construed letters as a motion to dismiss and denied the motion, allowing Plaintiff’s due process and FHA claims to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff (non-voucher holder spouse) has a protected property interest in husband’s Section 8 voucher | VAWA creates a right to seek transfer/bifurcation; survivor has an interest and must be given opportunity to establish eligibility | No protected property interest because voucher titled to husband only | Court: Plaintiff has a sufficient property interest under VAWA and HPD policy to survive dismissal |
| Whether HPD’s denial/administration of voucher falls within the scope of the Fair Housing Act | FHA reaches actions that make housing unavailable; HPD’s administration of vouchers affects availability | FHA applies only to owners/landlords and not to agency administration of vouchers | Court: FHA can reach agency actions that “otherwise make unavailable” housing/program benefits; claim is within statute |
| Whether VAWA’s bifurcation provisions require procedural protections for a survivor before voucher termination | VAWA contemplates bifurcation and requires opportunity for remaining tenant to establish eligibility | VAWA does not create a standalone property interest for non-holder spouses | Court: VAWA’s scheme and HPD’s plan show surviving occupants have an interest and are entitled to process |
| Whether dismissal is appropriate at pleading stage | Plaintiff’s allegations and statutory/policy framework support due process and FHA claims | Defendants urged dismissal based on legal insufficiency | Court: Denied dismissal; claims sufficiently pleaded to proceed |
Key Cases Cited
- Ciambriello v. County of Nassau, 292 F.3d 307 (2002) (two-step due process analysis: protected interest and required process)
- Comer v. Cisneros, 37 F.3d 775 (1994) (broad standing in Second Circuit under the FHA)
- Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581 (2d Cir. 2016) (FHA’s phrase “otherwise make unavailable” reaches a wide range of discriminatory housing practices)
- LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995) (interpretation of FHA’s reach beyond traditional landlords/owners)
- Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277 (3d Cir. 1993) (narrower view treating FHA as limited to sellers/lessors; cited for contrast)