Part 18 — Federal Litigation: Pena v. New York City Department of Homeless Services, et al. printable pdf

Part 18 — Federal Litigation: Pena v. New York City Department of Homeless Services, et al.

Introduction

The issues examined throughout this report also intersect with pending federal litigation concerning Borden Avenue, the New York City Continuum of Care Veterans Task Force, and alleged retaliation and disability discrimination arising from advocacy concerning homeless Veterans. In Pena v. New York City Department of Homeless Services, et al., No. 26-CV-0176 (JMF), Pena is proceeding pro se in the United States District Court for the Southern District of New York. The Second Amended Complaint identifies the City of New York, the New York City Department of Homeless Services (DHS), the Institute for Community Living (ICL), Teresa Santiago, Adam Wawrynek, and Siobhan Dannacker as defendants.

Parts 8 through 17 independently examine Borden Avenue operations, emergency activity, finances, program models, City agencies, advisory bodies, and governmental oversight. This Part does not repeat those evaluations or treat the allegations in the lawsuit as findings of this report. Its purpose is narrower: to explain how the federal litigation relates to the advocacy, institutional relationships, and accountability issues documented elsewhere in the BORDEN REPORT.

Nature of the Litigation

The lawsuit does not ask the federal court to conduct a comprehensive evaluation of the GPD Program or determine whether every concern raised about Borden Avenue is substantiated. According to the Second Amended Complaint, GPD statutes, regulations, guidance, and program records are presented principally as background relevant to notice, context, motive, and causation rather than as an independent private cause of action.

The litigation instead centers substantially on Pena's advocacy concerning Borden Avenue and homeless Veterans, his participation in the Veterans Task Force as a Veteran With Lived Experience, restrictions placed upon his communications, subsequent disciplinary actions, his disability-related allegations, and his eventual removal from the Task Force.

The complaint asserts four principal federal claims:

• First Amendment retaliation under 42 U.S.C. § 1983.
• Disability discrimination under Title II of the Americans with Disabilities Act.
• Disability discrimination under § 504 of the Rehabilitation Act.
• Municipal liability under 42 U.S.C. § 1983.

These are allegations requiring judicial determination. The filing of the complaint establishes that the claims have been presented to the Court; it does not establish that any defendant violated federal law.

Borden Avenue Advocacy

The complaint describes Pena's advocacy concerning Borden Avenue beginning before the present litigation. It alleges that concerns were raised regarding safety, drug activity, overdoses, assaults, deaths, sanitation, privacy, nutrition, housing delays, transportation, disability-related issues, and access to Veteran-centered resources.

Those subjects overlap with Parts 8 through 12, but the evidentiary purpose is different. In those Parts, conditions are evaluated through operational records, emergency data, budgets, regulations, and other evidence. Within the lawsuit, the importance of the advocacy concerns whether defendants knew about Pena's criticism and whether subsequent actions involving his Task Force participation were unlawfully connected to that protected activity.

Accordingly, Part 18 does not rely upon the complaint to prove the underlying Borden Avenue conditions. The complaint is relevant here primarily because it documents the nature, timing, and legal significance Pena attributes to his advocacy and the defendants' alleged responses to it.

Veterans Task Force Dispute

The Veterans Task Force is examined institutionally in Part 14. The federal litigation concerns a more specific dispute involving Pena's individual participation in that body.

The complaint describes a June 2023 disagreement involving communications concerning a homeless Veteran. It states that Pena characterized the Veteran as having been repeatedly removed from shelters, while DHS Associate Commissioner Sonya Russell disputed that characterization and described transfers and declined placements. Subsequent communications allegedly resulted in restrictions concerning Pena's use of the Task Force email group and warnings regarding criticism of agencies.

The complaint further describes a Committee Agreement addressing member conduct, including language concerning the use of Task Force membership to disparage agencies, organizations, or individuals in group or public forums. Following additional criticism of the Task Force in July 2024, Pena received a written warning from Teresa Santiago and Adam Wawrynek and was later removed from participation, according to the complaint.

The litigation consequently places the boundary between organizational conduct requirements and protected advocacy directly before the federal court.

Disability-Related Claims

The complaint also alleges disability discrimination arising from Pena's service-connected PTSD. According to the pleading, relevant individuals knew of the disability and its potential relationship to communication and interpersonal interactions, but no meaningful reasonable-modification process occurred before disciplinary action and removal.

The complaint does not allege that Pena previously submitted a formal accommodation request in a prescribed format. Instead, the claims rely upon allegations concerning disability notice, the circumstances surrounding discipline, and defendants' obligations under the ADA and Rehabilitation Act.

Whether those circumstances establish liability is a legal question for the Court. For purposes of this report, the litigation illustrates a broader governance issue already relevant to Veteran-serving organizations: disciplinary and participation procedures involving Veterans with disabilities should be sufficiently clear to distinguish legitimate conduct concerns from circumstances requiring consideration of disability-related protections.

Relationship to the BORDEN REPORT

The BORDEN REPORT and the federal lawsuit perform fundamentally different functions. The report evaluates Veteran homelessness, GPD operations, public expenditures, Borden Avenue conditions, governmental oversight, and potential policy improvements. The lawsuit asks whether particular defendants violated Pena's individual federal rights.

That distinction should remain clear. Evidence appearing in both proceedings may have different purposes, and a policy concern can exist without creating a federal cause of action.

The Second Amended Complaint organizes supporting materials into Appendices A through K, including records concerning:

• Veterans Task Force discipline and removal.
• Email correspondence and the alleged retaliation chronology.
• Disability and participant-rights materials.
• Pre-litigation comparative advocacy.
• GPD statutes, regulations, and VA guidance.
• VA FOIA and Office of Inspector General materials.
• Borden Avenue safety and incident records.
• DHS, ICL, and City oversight materials.

The existence of overlapping records does not make the BORDEN REPORT dependent upon the litigation. Wherever possible, the report evaluates the underlying governmental and program records directly.

Relief Requested

The Second Amended Complaint seeks declaratory and injunctive relief, reinstatement or comparable relief where legally available, back compensation if recoverable, protections against retaliation, accessible disability and grievance procedures, compensatory and punitive damages where legally authorized, costs, and a jury trial where available. It also seeks limited prospective relief relating to Borden Avenue within the Court's jurisdiction.

The scope of relief ultimately available depends upon the claims that survive judicial review, the evidence developed in the case, applicable immunity and municipal-liability principles, and other questions that remain for the Court.

Litigation Is Not a Substitute for Oversight

The existence of federal litigation should not suspend administrative or governmental examination of issues involving Veteran services. VA, DHS, DVS, City Council, DOI, the Comptroller, and other entities possess responsibilities that differ substantially from those of a federal district court.

A court determines legal rights and remedies within the claims and jurisdiction before it. Government oversight can examine broader questions involving contracts, program performance, safety, expenditures, housing outcomes, administrative practices, and policy even when those issues do not establish civil liability.

The two processes can therefore proceed independently. Government agencies should not require a Veteran to prevail in litigation before examining a legitimate program concern, while the existence of an administrative concern should not be treated as proof that a defendant violated federal law.

Conclusion

Pena v. New York City Department of Homeless Services, et al. places a defined portion of the broader Borden Avenue controversy before a federal court. The litigation concerns allegations that advocacy regarding Borden Avenue and homeless Veterans was followed by communication restrictions, disciplinary action, disability-related failures, and removal from the Veterans Task Force. The defendants remain entitled to contest those allegations and present legal and factual defenses, and the Court has not established the allegations as findings merely because they appear in the Second Amended Complaint.

For the BORDEN REPORT, the litigation is significant primarily because it demonstrates how disputes involving Veteran advocacy, lived-experience participation, disability, institutional criticism, and government accountability can converge. It should not be used as a substitute for the independent records evaluated throughout Parts 2 through 17.

The distinction also prepares the report for Part 19. The findings and recommendations that follow should stand on the broader evidentiary record—including federal regulations, VA materials, financial records, emergency and arrest data, governmental reports, meeting records, and other independent documentation—rather than upon the outcome of Pena's individual lawsuit. The federal case is one component of the record; the systemic questions concerning Borden Avenue and New York City's GPD transitional program extend beyond the claims that a federal court will ultimately decide.