Washington Legal Clinic for the Homeless v. Barry

Citation323 U.S.App.D.C. 219,107 F.3d 32
Decision Date12 June 1997
Docket NumberNo. 96-7066,96-7066
PartiesWASHINGTON LEGAL CLINIC FOR THE HOMELESS, et al., Appellees v. Marion S. BARRY, Jr., Mayor of the District of Columbia, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Donna M. Murasky, Assistant Corporation Counsel, Washington, DC, argued the cause for appellant. With her on the brief were Charles F.C. Ruff, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, Washington, DC. Edward E. Schwab, Assistant Corporation Counsel, Washington, DC, entered an appearance.

Katherine D. McManus, Washington, DC, argued the cause for appellees. With her on the brief were Peder A. Garske and Martin F. Cunniff, Washington, DC. Mark D. Wegener, Washington, DC, entered an appearance.

Before: WALD, GINSBURG and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion dissenting in part filed by Circuit Judge WALD.

TATEL, Circuit Judge:

The central question in this case is whether District of Columbia law creates a constitutionally protected entitlement to emergency family shelter. Although D.C. law establishes objective eligibility criteria for homeless families seeking shelter, for a combination of reasons we hold that homeless families lack an expectation of shelter sufficient to create a property right: the city does not provide enough shelter to meet the needs of all eligible families, it leaves allocation of limited shelter space among eligible families to the unfettered discretion of city administrators, and nothing in District law prohibits administrators from allocating space in such a way that not all eligible families receive shelter. Indeed, the city administered the family shelter program just that way at the time this suit was filed. We thus reverse the district court's due process ruling. We agree with the district court, however, that the city's policy allowing certain advocates for the homeless to visit the Shelter Office waiting room only on Wednesday mornings and Tuesday and Friday afternoons violates the First Amendment.

I

In 1984, District of Columbia voters approved an initiative known as the District of Columbia Right to Overnight Shelter Act, guaranteeing to "all persons in the District ... the right to adequate overnight shelter." D.C.CODE ANN. § 3-601 (1988 Repl.). Three years later, the City Council enacted the Emergency Shelter Services for Families Reform Amendment Act, authorizing creation of a temporary shelter program for eligible homeless families. Id. § 3-206.3 (1988 Repl.) Known as the Family Shelter Act, it required the Mayor to "claim federal financial participation to the extent allowable by law for housing assistance and services to homeless families with minor children." Id. § 3-206.3(a).

After several lawsuits against the city for failing properly to administer its emergency shelter programs produced huge contempt fines, see Atchison v. District of Columbia, 585 A.2d 150, 151 (D.C.1991), the City Council, citing an "explosion" in costs associated with shelter programs, moved to "limit specifically and define clearly the obligation of the District of Columbia" under the Overnight Shelter and Family Shelter Acts. Council of the District of Columbia, Comm. Report on Bill 8-156, at 2, 14 (May 10, 1990). To accomplish this goal, the City Council amended both Acts to provide that nothing in either "shall be construed to create an entitlement in any homeless person or family to overnight shelter." District of Columbia Emergency Overnight Shelter Amendment Act of 1990, D.C. Law 8-197, 37 DCR 4815 (1990) (codified as D.C.CODE ANN. § 3-206.9(a) (1994 Repl.); D.C.CODE ANN. § 3-609 (1994 Repl.)).

Under the District's family shelter program, families are eligible for shelter if they are homeless; if they can pay for shelter or, if not, if they receive vocational training or perform community service in exchange for shelter; and if they have not occupied emergency family shelter within the previous twelve months. D.C.CODE ANN. § 3-601 (1994 Repl.). Section 3-605 of the Overnight Shelter Act and District of Columbia Department of Human Services implementing regulations establish additional eligibility criteria for families seeking shelter, including that applicants must be current on city taxes, must not have been evicted or expelled from temporary family housing or emergency shelter for drug-related reasons, and must not have been evicted from public housing for failing to accept employment or training or for nonpayment of rent. Id. § 3-605(b); D.C. Mun. Regs. tit. 29, § 2502 (1992). Shelter applicants must "provide any information requested by the intake worker that is necessary to establish" their eligibility for emergency shelter, unless the information is not "reasonably available." D.C. Mun. Regs. tit. 29, § 2503. Requested information may include eviction or foreclosure notices, income statements, social security numbers for each family member seeking shelter, and a statement of the reasons the family needs shelter, itself encompassing eighteen subcategories of information. Id.

Until May 1995, the city operated its emergency family shelter program through DHS's Office of Emergency Shelter and Support Services. Although the District has since transferred the family shelter program to the Community Partnership for the Prevention of Homelessness, DHS retains authority over the program. Throughout this opinion, we refer to the office administering the shelter program as the "Shelter Office."

Because the city lacks space to accommodate all families seeking shelter, and because neither the Overnight Shelter Act nor its implementing regulations direct the Shelter Office how to allocate available shelter, the Office has developed its own system for allocating shelter space among eligible families. Under current procedures, when a homeless family first applies for shelter, the Shelter Office screens the family to determine preliminarily whether the family meets the three basic statutory eligibility requirements. If no eligibility problems appear, the family is placed on a waiting list, assigned a number, and given a "document checklist" identifying the documents needed to verify eligibility. The family is instructed to call the Shelter Office each day to learn whether its number has been reached. Wait-list numbers are usually reached one to two months after families file their initial applications for "emergency" shelter. During this waiting period, about half of the applicant families drop out of the process. When a family's wait-list number is reached, the Shelter Office reviews any additional documentation supplied by the family and makes a final eligibility determination. Families declared eligible then receive shelter.

Homeless families ruled ineligible for emergency shelter may obtain administrative review within the Shelter Office, D.C. Mun. Regs. tit. 29, § 2512.1, or a hearing before the District's Office of Fair Hearings. D.C.CODE ANN.s 3-606(a), (c) (1994 Repl.); D.C. Mun. Regs. tit. 29, § 2511.5. Almost all families appealing adverse eligibility determinations are represented by counsel, and the great majority of cases appealed to the Office of Fair Hearings are resolved informally and quickly. Trial Tr. Vol. IV (May 25, 1995) at 564-65. Unsuccessful applicants may appeal to the District of Columbia Court of Appeals. D.C. Mun. Regs. tit. 29, § 2513.1.

The Washington Legal Clinic for the Homeless, a nonprofit organization providing services to the District's homeless population, assists families in the shelter application process. Joined by staff members, a privately run shelter, and several homeless mothers, the Clinic filed this suit in 1993, alleging that the city was violating federal and D.C. law and the Fifth Amendment's due process and equal protection guarantees by imposing upon applicants unnecessary and burdensome documentation requirements and by failing to afford disappointed applicants timely hearings.

Relying on the First Amendment, the complaint also challenged District policy limiting Clinic staff access to the Shelter Office waiting room. Although the policy allows advocates having pre-existing relationships with shelter applicants to be in the waiting room whenever open, the policy limits advocates without clients, i.e., "unsolicited advocates," to one at a time and only on Wednesday mornings and Tuesday and Friday afternoons. Letter from Jesse P. Goode, Senior Attorney, District of Columbia Department of Human Services, to Katherine D. McManus, Howrey & Simon 1-2 (Mar. 18, 1993).

Shortly after the suit was filed, the district court scheduled a hearing on plaintiffs' request for a preliminary injunction to halt alleged violations of a federal emergency assistance program in which the District participated. See Compl. at 43-44. On the eve of the hearing, the city withdrew from the program. When the district court then denied preliminary injunctive relief as moot, Washington Legal Clinic for the Homeless, Inc. v. Kelly, Civ. No. 93-0691, slip op. at 9 (D.D.C. July 30, 1993), plaintiffs amended their complaint, adding a request for a declaratory judgment that by opting out of federal assistance for the family shelter program, the District had violated D.C.CODE ANN. § 3-206.3(a), which requires the Mayor to seek federal financial assistance for housing and supplemental services to homeless families. See supra p. 3.

Over the next three years, the district court rendered the decisions at issue in this appeal. First, declaring the Shelter Office waiting room a nonpublic forum and finding that the city had offered no reasonable grounds for restricting access to the waiting room to only three periods per week, the court ruled that this portion of the District's access policy violated the First Amendment. Washington Legal Clinic for the Homeless, Inc. v....

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