United States District Court, District of Columbia. The WASHINGTON LEGAL CLINIC FOR THE
HOMELESS, INC., et al., Plaintiffs, v.
Marion BARRY, in His Official Capacity as Mayor of the District of Columbia, Defendant. Civil A. No. 93-0691 (JHG).
Feb. 23, 1996.
Homeless families and their advocates sued district for violations of their constitutional rights with regard to emergency shelter assistance. Following bench trial, the District Court, Joyce Hens Green, J., held that: (1) district was required to modify certain coordination, notification, and appeals procedures to comport with due process, but (2) district's procedures did not violate equal protection clause.
Judgment granted in favor of plaintiffs in part and defendants in part.
*443 Gary Lester Ivens,Federal Trade Commission, Bureau of Consumer Protection, Washington, DC, Katherine Dwyer McManus, Mark Douglas Wegener, Peder A. Garske, Martin F. Cunniff, Jill A. Tuennerman, Howrey & Simon, Washington, DC, Joanne E. Caruso, Howrey & Simon, Los Angeles, CA, for Washington Legal Clinic for the Homeless, Father McKenna Center of St. Aloysius Church, Frank Trinity, Lisa Goode, Patricia Kennedy, Diann Hammer, Sunny Kim, Franzin Melton, Angelina Easter, Tomikio Hall, Koya Harleston, Debra King, Tammy Montague. Jesse P. Goode, Department of Human Services, Office of General Counsel-St. Elizabeths, Washington, DC, George C. Valentine, Office of Corporation Counsel, D.C., Washington, DC, for Sharon Pratt Kelly, in her official capacity as Mayor of Washington, District of Columbia, Marion Barry, Jr.
MEMORANDUM OPINION AND ORDER
JOYCE HENS GREEN, District Judge. For nearly four years, plaintiffs, who are homeless families FN1 and their advocates, have strived to reform the District of Columbia's system for providing emergency housing assistance to homeless families,

contending that the present system violates families' rights under the First and Fifth Amendments to the United States Constitution.FN2 During the pendency of this case, a number of events have occurred, some of which, such as the institution of the present waiting list system for allocating shelter have, in this Court's view, improved matters. Other events have clearly operated to the detriment of homeless families, most significantly the District's decision to withdraw from the federal Emergency Assistance reimbursement program, which deprived the District of substantial resources with which to house homeless families.
FN1. A class consisting of homeless families seeking eligibility determinations for emergency family shelter after November 1, 1991 was certified on April 15, 1994. See Memorandum Opinion and Order (Apr. 15, 1994) at 2 n. 2.
FN2. This case was initially brought in 1992 (C.A. No. 92-1894), and involved allegations of First Amendment violations by the District of Columbia in restricting advocates' access to the family intake center at 25 M Street, S.W. That case was settled following negotiation of a Memorandum of Understanding governing access to the intake center.
In April 1993, plaintiffs brought the instant action, alleging, inter alia, violations of plaintiffs' First and Fifth Amendment rights, in connection with the District's operation of its emergency family shelter program. Several months later, plaintiffs moved for a preliminary injunction. On the eve of the preliminary injunction hearing, the District filed a notice stating that the issue was moot due to the District's withdrawal from the federal reimbursement program for emergency family shelter. Plaintiffs' motion was subsequently denied, largely due to the District's withdrawal from the federal program.
In April 1994, the Court issued a Memorandum Opinion and Order dismissing Counts I and II from the Complaint, and certifying a class consisting of all families seeking eligibility determinations after

November 1, 1991.
In March 1995, the Court issued a Memorandum Opinion and Order finding in defendant's favor on plaintiffs' claim concerning First Amendment violations relating to access to the courts; finding partly in plaintiffs' favor and partly in defendant's favor on the First Amendment challenges to the District's policies concerning access to the intake office by advocates; and denying summary judgment on plaintiffs' due process and equal protection claims due to disputes of material fact.
In that same Memorandum Opinion and Order, the Court found in plaintiffs' favor on the issue of defendant's violation of its own laws, which obligated the District to participate in the federal Emergency Assistance reimbursement program so long as the District operated an emergency family shelter program. The District withdrew from the program in July 1993, and the Court found that the Mayor's failure to participate in the federal reimbursement program constituted a clear violation of District law. On or about April 11, 1995, however, the City Council passed, and Mayor Barry signed, emergency legislation making the District's participation in the federal reimbursement program discretionary rather than mandatory. Nonetheless, the Court issued a Declaratory Judgment stating that from the period July 1, 1993 until April 11, 1995, defendant was in violation of D.C.Code Ann. § 3-206.3(a).
Following resolution of several claims through dispositive motions, plaintiffs' remaining claims, concerning due process and equal protection, were the subject of a fourday bench trial. Following the trial, the parties submitted extensive proposed findings*444 of fact and conclusions of law.FN3 Upon consideration of the record and evidence introduced at trial, including the testimony of witnesses whose credibility, demeanor, and behavior the Court has had an opportunity to observe and evaluate, judgment shall be entered in favor of plaintiffs in part and against defendant in part, and in favor of defendant in part and against plaintiffs in part, for the reasons set forth below.
FN3. At the outset, the Court compliments

counsel for their thorough and very helpful submissions. Significantly, the parties' submissions confirm the Court's observation at trial that most factual matters are not disputed in this case-rather, what is hotly disputed is the legal significance of the facts. Because most facts in the record are not disputed, this Memorandum Opinion and Order presents most of the Court's factual findings without specific attribution to a particular witness.
I. FINDINGS OF FACT
A. Characteristics and Consequences of Homelessness
At trial, plaintiffs presented uncontroverted testimony concerning the typical characteristics of homeless families, as well as the effects of homelessness on parents and their children. Homeless families are in a crisis situation, and exist in an extremely vulnerable state. Typically they are destitute, with no financial resources, no housing or inadequate housing, and no means of transportation.
Many families applying for emergency shelter are homeless because they have been evicted, have been forced to leave an unsafe or overcrowded housing situation, or were fleeing domestic violence or another type of family dispute.
Homelessness can have devastating mental and physical consequences. Homeless families are exposed to the elements of heat, cold, snow, and rain. They lack basic privacy and facilities necessary for proper hygiene, and often lack proper nutrition. The problem of poor nutrition is especially acute for homeless children, and particularly infants, due to difficulties in refrigeration of formula and lack of privacy for breast feeding.
Homeless families are at an increased risk of illness. Often they have reduced resistance to illness, and face an increased danger of infectious diseases, upper and lower respiratory illnesses, intestinal infections, and other health problems. Homeless families have a rate of hospitalization many times higher than the general population. Moreover, homelessness adversely impacts pregnancy and prenatal care. Homeless women have a higher incidence of low birth-weight babies and infant mortality than other populations. Homelessness can cause serious psychological problems as well, including depression, the consequences of which obviously can be

severe.
B. The Emergency Shelter Family Program
The District of Columbia FN4, through the Office of Emergency Shelter and Support Services (“OESSS”), operates an emergency shelter program for homeless families.FN5 OESSS is part of the Department of Human Services (“DHS” or “the Department”), the same department responsible for administering Aid to Families with Dependent Children (“AFDC”) and other social services programs.FN6
FN4. As with prior Opinions, because defendant Mayor Marion Barry is sued in his official capacity, the Court frequently refers in this Opinion to defendant as “the District.”
FN5. On May 1, 1995, the program was transferred to the Community Partnership for the Prevention of Homelessness, a public-private partnership. However, the parties stipulated that the Department of Human Services retains ultimate legal responsibility for the operation, management and administration of the program, including fair hearings on appeal. The program still operates out of the OESSS offices at 25 M Street, S.W.
FN6. Prior to May 1, 1995, the OESSS office was headed by Helen Keys. Ms. Keys delegated responsibility for daily operations at OESSS to Pamela Shaw, who held the position of Chief Supervisor of the Intake staff.
The regulations governing administration of the emergency shelter program are contained at 29 DCMR Chapter 25, and became effective on January 24, 1992.FN7
Pursuant to *445 the regulations, families meeting certain criteria are eligible to receive emergency shelter.FN8 The governing statute and regulations explicitly state that eligibility does not entitle applicants to shelter. Significantly, however, Pamela Shaw testified as corporate representative for the District of Columbia that it is OESSS' policy and practice to provide shelter to all homeless families at the point they are deemed eligible.FN9 In general, applicants are eligible for shelter if they have no present housing, lack the financial resources to obtain housing FN10, and have not been placed in emergency shelter in the previous 365 days.FN11 29 DCMR Ch. 25 § 2502.FN12

FN7. The eligibility criteria contained in the regulations were developed by the District of Columbia and not the federal government. However, during the period of time that the District participated in the federal Emergency Assistance reimbursement program, federal auditors evaluated the District's performance in part based on how accurately the District applied its own eligibility requirements. Ms. Shaw presented unrebutted testimony that the federal government refused to reimburse the District for shelter expenses incurred prior to a determination of eligibility in accordance with the District's regulations.
FN8. Emergency shelter family housing units contain cooking facilities, bathroom facilities, separate sleeping quarters for adults and minor children, and access to outside play areas.
FN9. As described more fully infra, OESSS delays making an eligibility determination until a potential housing arrangement has been identified for a particular applicant.
FN10. The regulations define financial ability to obtain housing as financial resources greater than $100, a valid credit card, or income greater than a maximum allowable income.
FN11. The regulations plainly state that applicants who have received shelter in the previous 365 days will be denied shelter unless they present mitigating circumstances justifying a different result. Mitigating circumstances are defined in the regulations to include risk to health of children. Frank Trinity, former staff attorney for the Washington Legal Clinic for the Homeless (“WLCH”), testified that in his extensive experience assisting families, in no case has OESSS considered mitigating circumstances at the outset of the application process. Ms. Shaw confirmed that the instances in which OESSS considered mitigating circumstances were infrequent. Plaintiffs presented cases where, on appeal, OESSS was directed to consider mitigating circumstances.
FN12. The regulations contain other requirements, such as being current on District

income taxes and not having a prior record of eviction for drug use. 29 DCMR Ch. 25 § 2502.1(d) and (e). These requirements were not challenged in this litigation.
According to the regulations, at the time of initial application or inquiry, OESSS staff are to “inform the applicant that he or she is required to provide documentation of eligibility that is reasonably available to the applicant.” 29 DCMR Ch. 25 § 2503.1. The regulations do not define “reasonably available.” Under the regulations, DHS is permitted to require an applicant to provide a variety of information to verify eligibility, id. § 2503.10, including, inter alia, an eviction notice, Social Security number, income and source of income, statements regarding the applicant's need for shelter, information regarding other persons in the family unit, and “[o]ther information deemed necessary to establish eligibility.” Id. The regulations do not permit OESSS to deny services on the night of initial application due to a lack of available documentation. Id. § 2503.2.
According to the regulations, “[t]he Department shall provide an applicant with an oral and written notice of eligibility determination at the time of the determination.” Id. § 2502.4. Applicants who are aggrieved by the Department's decision to deny housing may request a fair hearing from the Department's Office of Fair Hearings, unless the denial of shelter is due to a lack of space. Id. § 2511.1-2. The regulations require applicants to request a hearing within 10 days of a decision on eligibility. Id. § 2511.5. A recommended decision is to be rendered within five days of a hearing, id. § 2511.12; however the regulations do not specify a time frame within which such hearings must take place or by which a final decision must be issued. Finally, the regulations provide for informal administrative review prior to a formal hearing, upon the request of the applicant. Id. § 2512.
It is undisputed that OESSS does not have a formal policy manual for operating the emergency shelter program. Pamela Shaw testified that the regulations operate as a policy manual.FN13 Ms. Shaw further testified *446 that she personally trained both current and new OESSS employees regarding OESSS procedures. New employees participate in a 30-day training and orientation program which includes weekly meetings, hands-on training, and observation and evaluation by Ms. Shaw.
FN13. Frank Trinity testified that a policy

manual would be useful in setting forth ground rules and providing an up-to-date, public source of OESSS' requirements. The absence of a policy manual is one of plaintiffs' major criticisms of the intake system.
1. Prior System for Allocating Shelter
The District's system for allocating emergency shelter to families has varied significantly over the years. Between January 1992 and January 1994, the District followed a system whereby applicants were considered and placed on a first-come, first-served basis until all spaces available on a particular day were filled. Families who applied after all available spaces were filled were not provided an individualized eligibility determination, but were issued a pro forma denial for lack of space.FN14 Applicants were thus required to reapply each day in order to be considered for shelter.FN15 The system created an incentive for applicants to arrive as early as possible at OESSS in order to be among the first in line when the office opened in the morning. In some cases, families camped out overnight at 25 M Street in order to be among the first in line for shelter.
FN14. As discussed previously, the regulations do not authorize an appeal where a denial is for lack of space.
FN15. The testimony of Tammy Montague, a class representative, is illustrative of the former system. Ms. Montague visited OESSS on three consecutive days. On the first two days, she was notified that no space was available. On the third day, Ms. Montague was interviewed for eligibility, but was denied because she had received shelter during the previous year. No mitigating circumstances were found in her case, despite the fact she had a two-week old baby, another child with a leg defect, and that Ms. Montague herself was ill and hemorrhaging.
2. The Waiting List System
The system for allocating shelter changed substantially in January 1994, when the District halted its practice of allocating shelter on a daily first-come, first-served basis, and switched to a waiting list system. Under the waiting list system, as reflected in Pl.Exh. 275 and as described by numerous witnesses, applicants are given an application, including a screening form, upon their arrival

at the OESSS office. The screening form contains “yes or no questions surrounding the objective aspects of a family's eligibility for shelter.” Pl.Exh. 175. OESSS workers review the screening form and application for possible eligibility problems. If potential problems exist, further inquiry is made and a decision on eligibility is rendered.FN16
FN16. Scott McNeilly, staff attorney for the Washington Legal Clinic for the Homeless, testified that some families are told that they must provide further documentation before they can be given a waiting list number. No specific examples of this practice were provided by plaintiffs; however, such a practice could certainly be viewed as consistent with the policy, as described on the form, of conducting further evaluation of applicants whose screening form reflects possible barriers to eligibility.
If no apparent barriers to eligibility exist, the applicant is given a waiting list number and is instructed to telephone a recording at OESSS each day after 10:00 a.m.FN17 The recording states the waiting list numbers to be served on a given day. It does not recite waiting list numbers called on prior days but not claimed.
FN17. The deposition testimony of Junetta Hill and Cynthia Blount, two shelter applicants, reveals that families on the waiting list do not necessarily follow the instruction to call the recording each day. In Ms. Blount's case, she failed to call the recording and missed the announcement of her waiting list number. When she later visited the OESSS office after more than 14 days, she was told she would need to reapply.
Applicants whose numbers are called are instructed to present themselves at OESSS by 1:00 p.m. that day to be placed. OESSS' policy is to hold a case file open for 14 days from the date a number is called. If an applicant does not present him or herself within 14 days, the file is closed and the applicant is required to reapply for benefits. The 14 day window is not explained on the forms given to homeless family applicants.
The waiting list system is not free of problems. According to Sister Mary Ann Luby, an outreach worker for WLCH, the recording is not always changed by 10:00 a.m. In addition, on occasion the recording malfunctions.

Plaintiffs complain that these problems*447 create difficulties for homeless families, as does the fact that OESSS does not directly contact families when their numbers come up.FN18 Only about fifty percent of the applicants whose numbers are called actually return to OESSS for placement.
FN18. In their depositions, Junetta Hill and Cynthia Blount indicated that although they did not call the recording each day, they frequently got information from staff at the Community for Creative Non Violence concerning the waiting list numbers called on a given day.
Eligibility determinations are not performed at the time an applicant is placed on the waiting list. Instead, an eligibility determination is made at the time the applicant's number is called, prior to actual placement into shelter. As a result, families on the waiting list but not yet approved for shelter do not receive services given to families actually placed in emergency shelter. Families placed in shelter receive referrals to other social services, as appropriate, an opportunity to attend classes in the Regional Resource Center, assistance in obtaining permanent housing, and case management services.FN19 Moreover, because an eligibility determination is not made at the time of application, applicants on the waiting list are not referred to Healthcare for the Homeless, a free medical clinic operated at 25 M Street, S.W. Finally, families placed in emergency shelter receive priority placement on the waiting list for permanent housing maintained by the Department of Public and Assisted Housing (“DPAH”).FN20
FN19. Case management services are provided through personnel at the shelter at which a family is placed, not directly by OESSS staff.
FN20. The District contends that all homeless families, not just those in emergency shelter, receive the same priority on the DPAH list. Plaintiffs contend that homeless families in emergency shelter get greater priority. Not enough information was elicited at trial to enable the Court to make a finding on this issue which, while important, is not pivotal to plaintiffs' claims.
3. Capacity of the Program
The District unquestionably does not have the financial

resources to serve all eligible families who need emergency shelter. At the time of trial, families waited an average of two months from the time they were placed on the waiting list to be placed in emergency shelter. This wait is no doubt exacerbated by the fact that the number of available shelter spaces has plummeted in recent years, from 495 spaces in the fall of 1994 to 139 spaces at the time of trial.
Undoubtedly the District's withdrawal from the federal Emergency Assistance reimbursement program effective July 1, 1993, operated to reduce significantly the number of spaces available for eligible families. Moreover, plaintiffs contend that the District's mismanagement of its public housing programs contributes to the inability of OESSS to move families from temporary shelter to permanent housing, thereby freeing up temporary shelter space. According to Patricia Mullahy Fugere, WLCH's Executive Director, at the time of trial, the Department of Public and Assisted Housing had 2360 vacant permanent public housing units. DPAH has been severely criticized for mismanagement of the public housing program.
In sum, when one considers the substantial delay between application for shelter and eventual placement, and the extremely modest number of emergency shelter units presently available, it is evident that the District does not have emergency shelter readily available to families in need.FN21
FN21. The Court heard testimony at trial suggesting that the District does provide minimal shelter to families in need, at least during cold weather, at Hagan Hall on the grounds of St. Elizabeth's Hospital. However, it was unclear whether shelter at Hagan Hall was always available to families. Moreover, a number of witnesses testified, either in person or through deposition testimony, that they resided at the Community for Creative Non-Violence during their pendency on the waiting list for emergency shelter.
C. Documentation Requirements
Consistently since June 1991 to the present, the District has had a policy of requiring homeless families to provide documentation of their eligibility. The specific documentation requirements have changed over the years.
*448 Beginning in June 1991, OESSS workers distributed

a form to applicants which provided as follows:
“All Applicants for Family Shelter”
When applying for shelter-
All applicants will need the following:
*Notarized Statement Referral Eviction Notice Writ
*Statement of Income (i.e., SSI Income, AFDC Eligibility) W-2 Statement of Earnings/Pay Stub
*Birth Certificates (adults and children)
*Social Security Cards (adults and children)
*Picture ID
*All children must be present at the time of intake
Pl.Exh. 31A.
Applicants were not given any materials explaining the document requirements or stating that applicants could still be found eligible for shelter if they lacked documentation.
As shown in Pl.Exh. 31A, initially OESSS required applicants to supply notarized statements concerning the reasons for their homelessness. Plaintiffs contend, and the Court agrees, that the notarized statement requirement imposed a burden on families, due to the difficulty and expense of obtaining a notarization and the difficulty in traveling to get the statement.FN22 The District deleted the reference to notarized statements in March 1993. Pl.Exh. 129.
FN22. To support their allegations, plaintiffs sampled the OESSS case files, which consisted of approximately 9,000 files. Plaintiffs sampled one in 10 case files, resulting in a total sample of 859 applicant names. Of those files, in 198 cases, the file contained a notarized statement. In six instances, the file contained evidence of a request for a notarized statement.
Significantly, however, the data was not broken down to reflect whether applicants in

the sampled files were ultimately approved or denied shelter. Thus, the data's value in evaluating the notarized statement requirement is minimal. In any case, the issue is moot in light of the District's changed policy.
In or around January 1994, the District began giving applicants the “Family Intake Document Checklist,” Pl.Exh. 175, which OESSS staff would mark to indicate which documents were needed to verify an applicant's eligibility.FN23 The Document Checklist states that documents are to be provided within seven days, and
___ Eviction notice _ ___ Writ of Eviction _ ___ Statement of Income (e.g. SSI _ income, AFDC eligibility, W-2,
Statement of Earnings/Pay stub) ___ Birth certificates (Adults and _ children) ___ Social Security cards (Adults _ and children) ___ Picture Identification card _ ___ Statement from your last place _ of residence which establishes
that you can no longer live there ___ No additional documents are _ needed at this stage.
The form contains spaces for the applicant's signature as well as the signature of an eligibility worker. Pl.Exh. 175.
1. Effect of Lack of Documents on Receiving Shelter
The parties' positions differ on the issue of whether shelter applicants may receive shelter if they lack the requisite documentation. Pamela Shaw testified that families are given contingent shelter placements even if they do not satisfy all the documentation requirements.FN24 Plaintiffs insist, on the other hand, that OESSS staff strictly enforce the documentation requirements, require applicants *449 to produce all the information listed on the Document Checklist, and do not accommodate families who cannot obtain the

witnesses for plaintiffs testified that applicants were notified to that effect. Chief Supervisor Shaw testified on behalf of defendant that the seven-day requirement was not strictly enforced but rather was a means of expediting an eligibility determination once the applicant's waiting list number was called. However, no information concerning the consequences (or lack thereof) of failing to provide the documents is contained on the Document Checklist or other materials in the application packet.
FN23. The Family Intake Document Checklist contains the following listing of documents:
documentation. Frank Trinity testified that he recalled “one or two” conditional placements in his experience.
FN24. Ms. Shaw did not describe the consequences of failing to provide documentation during the contingent placement. The evidence presented from plaintiffs' sample of the OESSS case files actually supports the District's position. In four of the 859 case files evaluated, the case file indicated that an applicant was denied shelter for lack of documentation to verify eligibility. In 61 case files, however, applicants were placed contingent on verification. Thus, the Court finds that applicants who lack documents are, as a general rule, provided shelter contingent on providing documentation.

Plaintiffs contend that the District denies shelter on the grounds of failure to cooperate and assist in the eligibility verification process, which plaintiffs maintain is simply a code for lack of documentation. Plaintiffs complain that “failure to assist” does not differentiate between inability to assist and refusal to assist, and they contend it is improper to deny families for inability to assist in providing documentation. In contrast, Ms. Shaw testified on behalf of the District that applicants would not be denied shelter for an inability to provide documentation, but only a refusal to provide documentation. She did not elaborate further or provide specific examples to bolster her testimony.
To support their allegations that OESSS improperly denies applicants shelter for a lack of documentation under the pretense of “failure to assist,” plaintiffs presented statistical evidence on the number of such denials in 1992 and 1993. While important evidence of the practice at the time, the Court does not find the evidence on this point particularly probative in light of its dated nature. In addition, the evidence suffers from internal weaknesses, as detailed in the margin.FN25
FN25. For example, Pl.Exh. 156A shows that in an approximately four-month period of time between late March and early August, 1992, 240 families were denied shelter for failure to assist and cooperate. The Court observes that the documents introduced by plaintiffs in support of this point are confusing. In many instances, the total number of denials does not match the numbers listed next to each possible reason for denial. For example, the first page of Pl.Exh. 156A shows that 12 families were denied shelter that week. However, under “reasons for denial,” eight families are listed for failure to assist and 10 are listed as having adequate sleeping arrangements. These mathematical errors diminish the probativeness of the evidence, as does the fact that the data is from 1992, well prior to the institution of the present waiting list system.
Plaintiffs also submitted information provided to WLCH in response to a Freedom of Information Act request, which listed the number of applicants denied shelter and the reason for denial for the period November 1, 1992-February 15, 1993. Pl.Exh. 1. Interestingly, very few applicants (9

applicants) were denied for “failure to assist with verification” during that time frame, especially when compared to other reasons for denial, such as “sheltered in previous year” (34 applicants) and “adequate sleeping arrangements” (123 applicants). There were 463 total applicants during this time frame. Thus, the number of applicants denied shelter for “failure to assist” is minimal in relation to the total number of applicants.
Finally, plaintiffs brought to the Court's attention, through the testimony of Frank Trinity, the situation of LaBarbara C., who was denied shelter in 1992 for failure to assist. Her eligibility determination form stated “lacks birth certificates, two of five Social Security cards, income statement, statement of homelessness.”
Plaintiffs did present contemporary examples of two applicants who apparently were denied shelter for failure to provide documentation.FN26 However, plaintiffs' evidence is *450 insufficient to establish that applicants are typically denied contingent placements when they lack the requisite documentation.FN27
FN26. Plaintiffs presented the case of Roylene S., who, along with her child, was removed from shelter at a safe haven for battered women in 1994 due to her failure to cooperate in the documentation process. In her case, the failure was a failure to produce her own Social Security card. This evidence was not contradicted at trial.
In another instance, Troven M. sought emergency shelter for herself and her three children. She applied for and received a waiting list number in August 1994. In September 1994, her family was placed contingent upon her obtaining documentation. She and her family were later removed from shelter for failure to cooperate in the documentation process, apparently because Troven M. failed to produce a birth certificate for one of her children.
Plaintiffs presented other examples of families whom they contend were improperly denied shelter for failure to meet the documentation requirements. After evaluation of the materials

presented, the Court is not persuaded that sufficient information on those cases was presented to enable the Court to draw the conclusion urged by plaintiffs. For example, with respect to the case of Elizabeth M.G., Scott McNeilly testified that Elizabeth M.G. was improperly denied due to having income above the eligibility limit, and insisted that her income was in fact below the limit. No information on the applicant's income is contained in the file to either prove or disprove McNeilly's contentions. Pl.Exh. 111.
FN27. Plaintiffs presented an intake log (Pl.Exh. 156B) maintained by OESSS staff, which allegedly reveals instances where families were not given contingent placements despite notations in the OESSS case files stating that contingent placements were provided. In the two examples presented, the applicant had previously visited OESSS and the keeper of the log had written in one instance “information could not be verified”, and “client has no documentation to verify homelessness” in another instance. Plaintiffs contend that the log demonstrates that in fact, the families were not initially given a contingent placement. However, without testimony concerning the keeping of the log and the purposes for which the log was kept, the Court simply cannot conclude that the log is evidence of improper actions on the part of OESSS.
2. Burdensomeness of Documentation Requirements
Plaintiffs contend that the District's documentation requirements impose unnecessary hardships on homeless families and may deter families from applying for emergency shelter.FN28 Frank Trinity, former WLCH staff attorney, frequently informed DHS of his belief that the documentation requirements were too onerous. Additionally, plaintiffs' expert, Dr. Yvonne Rafferty, testified that she was not aware of a locality which imposed greater documentation requirements than the District of Columbia, and she contrasted the District's system with that of New York City, where minimal or no documentation is required and families in need are given shelter on demand.FN29 In addition to challenging the overall burdensomeness of the requirements, plaintiffs focused on a number of specific issues, which are set forth below.

FN28. As an illustration of the burdens imposed by the District's document requirements, plaintiffs presented information from an intake log (Pl.Exh. 156B) maintained by various OESSS staff. The logs reveal a number of applicants who visited the OESSS office on numerous occasions. However, the relevance of this evidence is minimal, at best, due to an absence of information concerning the reasons for the repeated trips. In the absence of testimony on this point, the Court does not find the mere fact that individuals made repeated visits to OESSS to be particularly probative of plaintiffs' claims.
FN29. New York City has a policy of unlimited shelter for all who request it, a very different system from the District's.
a. Lack of Coordination Within DHS
One of plaintiffs' most serious criticisms of the present system concerns OESSS' failure, when making eligibility determinations, to utilize information already provided to other offices within DHS by applicants who are AFDC recipients. Homeless families seeking emergency shelter are typically single female heads of household with one or more children, and most are recipients of AFDC.FN30 Plaintiffs contend that OESSS' failure to verify information through an applicant's AFDC file, or through a computer system known as the Automated Client Eligibility Determination System (“ACEDS”), constitutes an unreasonable burden in violation of due process.
FN30. The precise percentage of applicants who are AFDC recipients was disputed by the parties. Scott McNeilly testified on behalf of plaintiffs that at least 75 percent of applicants were recipients of AFDC. Ms. Shaw testified that approximately 50 percent of applicants receive AFDC. In any case, the number of applicants applying for emergency family shelter who also receive AFDC is substantial.
Plaintiff Franzin Melton's testimony is illustrative of this point. When she applied for emergency shelter, Ms. Melton was required to provide proof of income, as well as Social Security cards and birth certificates for herself and her minor daughter. The documents were required even though Ms. Melton had an identification card from

the AFDC program that included her name, date of birth and Social Security number. Ms. Shaw confirmed that OESSS requires Social Security cards for applicants and their children even though an applicant's AFDC identification card would contain the applicant's Social Security number.
*451 In order to obtain AFDC, recipients provide verification to DHS of their Social Security number, their birth, the number of children in the family, the family relationship involved, and their income. Birth certificates are required to be in a family's AFDC file. Thus, plaintiffs contend that much of the information required by OESSS could be easily verified in a simple telephone conversation or facsimile transmittal between OESSS and other DHS staff.
In response to plaintiffs' criticisms, the District contends that due to short staffing, AFDC personnel are not always available to take a telephone call to verify information in a particular file. In addition, defendant correctly points out that a determination of eligibility for AFDC is not the same as a determination of eligibility for shelter; accordingly, the mere fact that someone receives AFDC does not automatically qualify them for shelter.
Another potential means of coordination highlighted by plaintiffs is the ACEDS computer system, utilized by DHS, which contains, inter alia, names of all family members and their relationships, Social Security numbers, income information, and information about public benefits being received. The system can be searched by name, alias, or Social Security number. Despite the fact that the information is available on ACEDS, OESSS requires independent proof of family status. In part, this is because OESSS does not presently have full access to ACEDS. Moreover, Ms. Shaw testified that OESSS has concerns about the accuracy of the information on the system, which has not been verified in all cases.
b. Other Burdensome Aspects of the Documentation Requirements
1. Requirement that Children be Present at Intake
Plaintiffs' witnesses testified that OESSS requires all children to be present at the time of initial application, which they contend imposes an undue hardship on homeless families and inappropriately keeps homeless children from school.FN31 Particularly during the period of time in which applicants were required to reapply on a

daily basis, the Court agrees that this requirement would be burdensome.
FN31. Remarkably, in their Proposed Findings of Fact, plaintiffs state “The intake log shows that many families were denied because the children were not all present for the application process.” Proposed Finding of Fact 76, at 15. However, for each of the entries cited by plaintiffs as support for this statement, more than one reason for “denial”-if such was really the case-is listed. For example, a number of entries state that the applicant had no documents and children were not present. This example graphically illustrates the difficulty the Court has in finding the log and the notations made therein as probative evidence of OESSS' actions.
In response to plaintiffs' allegations, Ms. Shaw testified that OESSS did not require children to be present at the time of application, but rather, at the time the family was actually placed in housing. However, she conceded that the language on forms previously utilized by OESSS, stating that “All children must be present at the time of intake,” could be confusing. The forms presently used by OESSS do not include any reference to children being present at the time of intake, and plaintiffs presented no evidence of this being official OESSS policy at this time.
2. Writs of Eviction
Plaintiffs assert that to the extent an applicant claims eviction as their reason for homelessness, OESSS requires proof that a writ has been actually executed by the U.S. Marshal. Plaintiffs presented cases in which families were denied emergency shelter when they presented a writ of eviction but had not yet been physically evicted. For example, Michelle D. was denied eligibility because she produced a writ of eviction but not a Marshal's notice of the date the eviction would take place. Pl.Exh. 107. Cynthia Blount was denied shelter in 1993 because she had only an eviction notice but had not yet been physically evicted.
Ms. Shaw testified that if an applicant's reason for homelessness was eviction, OESSS required documentation showing that an eviction had occurred or that a writ had been executed. If an applicant did not have such documentation, OESSS staff would *452 check a daily list of evictions prepared by the Marshal's Service. If an applicant's name appeared on that list, that was

considered sufficient evidence of the reason for homelessness. However, Ms. Shaw did not contradict plaintiffs' fundamental allegations concerning the writ requirement.
3. Birth Certificates
OESSS requires applicants to submit long-form birth certificates in order to verify the relationship between parents and children. If an applicant does not have birth certificates for each adult and child, the applicant must obtain the certificate from the Office of Vital Statistics within DHS. Obtaining a birth certificate is both a time consuming and expensive process, particularly if an applicant or the applicant's children were born out of state. According to the uncontroverted testimony of plaintiffs' witnesses, birth certificates cost $16.00 each in the District of Columbia, plainly a significant expense for a homeless family. Fee waivers are obtainable in some but not all cases.
Significantly, birth certificates are obtained from DHS, the same department that oversees OESSS. Moreover, AFDC recipients typically have submitted birth certificates as part of the AFDC application process, meaning that the birth certificates should appear in their AFDC file.
4. Social Security Cards
OESSS requires applicants to submit Social Security cards or a printout from a Social Security office to demonstrate their eligibility for emergency shelter. For applicants who do not have Social Security cards for themselves or their children, this requirement plainly requires a trip to a Social Security office and could entail a wait. As previously discussed, information on Social Security numbers is provided to DHS by AFDC recipients, and AFDC identification cards contain the recipient's Social Security number.
5. Civil Protection Orders
Plaintiffs contend that OESSS requires a civil protection order as proof of homelessness in instances where applicants are homeless as a result of domestic violence. Witnesses testified that such a requirement places applicants in a potentially difficult and dangerous situation. Pamela Shaw contradicted plaintiff's allegations, stating that OESSS strongly recommends that

victims of domestic violence obtain civil protection orders for their own protection, but that OESSS does not require such an order to establish eligibility for shelter.
D. The Appeals Process
As previously stated, the regulations governing the emergency shelter program provide for administrative review and hearings upon request for applicants who are determined to be ineligible for shelter. The regulations require that a request for a fair hearing must be made within 10 days of receiving actual written notice of the denial. The regulations further state that the Office of Fair Hearings shall render a recommended decision within five days of the hearing, but the regulations do not contain time frames for administrative review, the actual hearing, or issuance of the final hearing decision.
The OESSS utilizes a “Notice of Eligibility Determination for Emergency Overnight Shelter” form to notify applicants of their eligibility (or ineligibility) for shelter. Pl.Exh. 175A. The form states that if an applicant is not satisfied with the decision, she may request an administrative review of her case within 24 hours of receipt of the notice. The form further states that the administrative review decision will be provided within 24 hours of the request for review.
Additionally, the Notice of Eligibility Determination states that applicants who are not satisfied with the decision of their administrative review may, within 10 days of the decision, request a fair hearing. The form states that “a hearing decision will be rendered within 2 business days of your request.”
Plaintiffs established at trial that administrative reviews do not generally occur within 24 hours of a request, nor are decisions rendered within 24 hours thereafter.FN32 Nor *453 are decisions rendered within two days of a request for a fair hearing. The District concedes that the time frames stated on the Notice of Eligibility Determination are not followed, but contends that the time frames are simply erroneous.FN33 The District maintains that there is no legal requirement that administrative reviews occur within 24 hours; rather, that time frame was an internal goal created by OESSS. Moreover, the District insists that applicants who request fair hearings receive such hearings.
FN32. Plaintiffs presented the cases of 9 applicants who did not receive an administrative

review decision within 2 business days of their request for a hearing. The time between the request and the decision in these cases ranged from 5 to 36 days.
FN33. Plaintiffs submitted a 1992 determination by the Chief Hearing Officer stating that the information on the Notice of Eligibility Determination was erroneous, yet OESSS continues to distribute the form containing information known to be incorrect. Notably, Holloway Wooten, the Chief Hearing Examiner for DHS, testified that he was not familiar with the two-day decision requirement on the Notice of Eligibility Determination.
As proof of plaintiffs' claim that the District lacks an

DATE OUTCOME
APPLI OF CANT REQUES
T

Jacqueli 12/2/94 ne E.

Counsel lost contact with client (per 2/27/95 letter).

Sharon 9/23/94 Hearing scheduled

K.

for 2/2/95;

outcome unclear

Vivian 6/30/94 No indication that

W.

hearing was ever

scheduled

Troven 12/5/94 Resolved

M.

informally 12/18

Elizabet 10/27/94 h M.G.

Settled 12/20/94; hearing had been scheduled for 12/16/94

Plaintiffs also submitted a number of case files from the Office of Fair Hearings to illustrate the lack of an effective appeal mechanism for applicants for emergency shelter benefits. The following chart summarizes the cases

effective appeal mechanism, Scott McNeilly, staff attorney for WLCH, testified that in his experience, he was never successful at obtaining a fair hearing on behalf of any of his clients, despite seven or eight requests for such hearings. McNeilly referred to a number of WLCH case files, summarized below.FN34
FN34. Plaintiffs also introduced Pl.Exh. 196AB, a listing of emergency shelter cases before the Office of Fair Hearings. The listing includes both eligibility and expulsion cases, and no effort was made to distinguish between the two. Accordingly, the Court is unable to discern any information of value from the exhibit, and the information contained therein was not considered in connection with this case.
presented FN35: FN35. Four cases appear on both charts, but are

presented nonetheless because the cases stem from two different sets of case files (WLCH and

DATE OUTCOME
APPLI OF CANT REQUES
T

Howard 6/30/94 & Vivian W.

On 7/20/94, Office of Fair Hearings determined that the request was premature because no eligibility determination had been made.

Jacqueli 12/2/94 ne E.

2/27/95 counsel for appellant informed Office of Fair Hearings that counsel had lost contact with client; no hearing held; note in file that Ms. Shaw would resolve the problem

Elizabet 10/27/94 h G.

Informally resolved without a hearing on 12/18/94.

Troven 11/15/94; Informally M. formal resolved on
request 12/18/94 12/5/94

Aurelia 6/5/94 G.

Declared moot on 8/17/94 because the applicant had found housing; no hearing held, no decision.

Erica 3/16/93 Note in file that

the Office of Fair Hearings) and contain, in some cases, different information.

G.

appeal withdrawn

on 4/19/93; no

hearing held, no

decision.

Koya 3/19/93 No hearing held,

H.

no decision.

June H. 4/29/93

Notation in file that appeal withdrawn on 7/27/93; no hearing held, no decision rendered.

Robert 6/4/93 J.

7/7/93 case withdrawn because counsel lost contact with client

Alicia 1/13/93 T.

1/25/93 case withdrawn because counsel lost contact with client

Dionne 2/5/93 T.

Hearing 2/16/93; determined that OESSS failed to consider mitigating circumstances; applicant permitted to reapply

Gregor 1/25/93 y Y. and Teresa C.

Hearing held 2/2/93; settled that day.

Tammy 3/93 Montag ue

Considered withdrawn 4/26/93 when applicant found housing

Mary J- 1/13/93 No hearing or

O

decision

Sharon 7/15/92 K.

Hearing scheduled for 8/4/92 but not held; no decision; outcome unclear from file

Gina D. 12/18/92

12/30/92 counsel informed office that counsel lost contact with client; appeal dismissed on 2/3/93

Lenann 7/23/92 B.

Notation in file that appellant did not show on 9/1; no indication that hearing was ever held or decision rendered

Edna P. 8/5/92

No hearing held; notation in file that case being reviewed by OESSS and appellant to remain in shelter in the interim

Latasha 10/9/92 W.

Withdrawn 11/3/92 after informal resolution (she found shelter)

Johnnie 3/30/92 H.

Hearing scheduled for 6/17/92; postponed because appellant found shelter.

Franzin 4/3/92 Melton

No hearing held; no decision rendered

LaBarb 10/14/92 Settled at pre-

ara C.

hearing on

10/16/92

Mary 10/8/92 Resolved at

B.

hearing on

10/16/92.

*454 The above-listed examples portray an utterly dysfunctional system for appeals. Hearing decisions are literally never issued “within two days of [an applicant's] request.” While some appeals were resolved informally and an occasional hearing was held, many other cases languished due to the delay between the request for an appeal and action on the appeal. Counsel frequently lost contact with their clients in the interim. Also disturbing is the fact that in numerous instances (e.g., Vivian W., Koya H., Mary J-O, Franzin Melton), no hearings were scheduled at all.

Furthermore, the above-listed examples vividly underscore the importance of a functioning fair hearing system. The cases cited above make clear that when hearings actually take place, applicants typically get relief. See, e.g., Dionne T., Gregory Y. and Teresa C., LaBarbara C., Mary B.

II. CONCLUSIONS OF LAW

A. DUE PROCESS

Plaintiffs contend that numerous aspects of the District's emergency family shelter program, such as its documentation requirements and shortcomings in the appeals process, deny applicants due process of law.

[1] In order to establish a violation of due process, plaintiffs must first establish that they have a property interest in emergency shelter sufficient to trigger due process protections. Once plaintiffs establish a property interest, the inquiry turns to whether plaintiffs received the process they were due. Reeve Aleutian Airways, Inc. v. United States, 982 F.2d 594, 598 (D.C.Cir.1993).

1. Plaintiffs Have a Protected Property Interest

[2] The Court has previously held that “plaintiffs have a property interest in overnight shelter sufficient to trigger due process protections.” Mem.Op. and Order (Mar. 27,

1995) at 16. Further elaboration on the basis for and nature of plaintiffs' property interest is set forth below.
[3] In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Supreme Court stated the basis for finding a property interest:
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.... Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Applicable authority plainly supports the notion that applicants for benefits, and not just current recipients, may enjoy due process protections. See Daniels v. Woodbury County, 742 F.2d 1128, 1132 (8th Cir.1984) (applicants for general assistance); Kelly v. Railroad Retirement Bd., 625 F.2d 486, 489 (3d Cir.1980) (applicant for disability annuity under the Railroad Retirement Act); Davis v. Ball Memorial Hospital Ass'n., 640 F.2d 30 (7th Cir.1980) (applicants for medical services under the Hill-Burton Act); Flagstaff Medical Center, Inc. v. Sullivan, 773 F.Supp. 1325, 1346-47 (D.Ariz.1991), aff'd. in part and rev'd. in part on other grounds, 962 F.2d 879 (9th Cir.1992) (same); Karan v. Adams, 807 F.Supp. 900, 910-11 (D.Conn.1992) (applicant for license to practice psychology).
*455 [4] Important to a finding of entitlement is whether the applicable statute and regulations restrict the exercise of official discretion:
Whether a given statutory scheme gives rise to a protected interest depends on whether the authority promulgating the statute or regulation has placed

substantive limits on official discretion, ...i.e., specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow.
Tarpeh-Doe v. United States, 904 F.2d 719, 722-23 (D.C.Cir.1990), cert. denied, 498 U.S. 1083, 111 S.Ct. 955, 112 L.Ed.2d 1043 (1991). The test was presented by the Second Circuit as “whether, absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted.”
Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir.1985); see also Ressler v. Pierce, 692 F.2d 1212 (9th Cir.1982). “[A]pplication of the test must focus primarily on the degree of discretion enjoyed by the [government], not the estimated probability that the [government] will act favorably in a particular case.” RRI Realty Corp. v. Southampton, 870 F.2d 911, 918 (2d Cir.), cert. denied, 493 U.S. 893, 110 S.Ct. 240, 107 L.Ed.2d 191 (1989).
Here, the relevant statute directs that “[t]he Mayor shall provide emergency overnight shelter to an eligible homeless person ...”, D.C.Code Ann. § 3-605(a), and the corresponding regulations state that the Department of Human Services “shall provide an applicant family determined eligible for temporary family housing a written referral to a designated temporary family housing facility.” 29 DCMR Ch. 25 § 2503.12 (1992) (emphasis added). Moreover, it is the policy and practice of OESSS to provide emergency shelter to all eligible families at the time an eligibility determination is made.
The statute and regulations also place substantive limits on official discretion in determining who is eligible for benefits. As described in the Court's Findings of Fact, the statute and regulations define eligibility in terms of an applicant's financial situation and housing opportunities, and documentation of same. D.C.Code Ann. § 3-603(5), 3-605(b); 29 DCMR Ch. 25 § 2502.3 (1992). Thus, the statute and regulations are clear that if the prerequisites are met-the applicant demonstrates a lack of available housing and financial resources-the applicant is eligible for shelter.
The District has consistently argued that plaintiffs cannot establish a property interest due to language in the governing statute and regulations stating that “[n]othing in [the law] shall be construed to create an entitlement in any homeless person or family to emergency shelter or support services.” D.C.Code.Ann. § 3-206.9; see also29

DCMR Ch. 25 § 2500.3 (“Eligibility for temporary housing for families ... does not entitle a homeless person to shelter and support services.”) This language notwithstanding, the District of Columbia's designated corporate representative, Pamela Shaw, unequivocally testified that the District's policy and practice is to provide shelter to all families found eligible, and the record firmly supports her testimony.
The fact that not all applicants meeting the eligibility criteria ultimately receive shelter due to funding constraints affects the nature and contours of plaintiffs' property interest, as described more fully below, but in no way does it eliminate plaintiffs' right to due process in the consideration of their eligibility for shelter. See Davis v. Ball Memorial Hospital Ass'n, 640 F.2d 30 (7th Cir.1980) (applicants for assistance may establish a protected property interest even if all eligible persons do not ultimately receive benefits due to funding constraints). In light of the District's undisputed policy and practice of providing shelter to all families found eligible, the “entitlement” language in the statute and regulations is more a statement of fiscal reality than a statement of legal entitlement.
2. What Process is Due
[5][6][7] Having determined that plaintiffs have a protected property interest, the question turns to whether plaintiffs have received the process they are due. Due process is a “flexible” concept, and “calls for such procedural protections as the particular situation demands.” *456Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In evaluating plaintiffs' claims, the Court balances the private interest affected, the risk of erroneous deprivation of that interest under the present system and the likely value of additional safeguards, and the government's interest. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). At bottom, the due process clause guarantees “an opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at 333, 96 S.Ct. at 902.
Plaintiffs point to several areas in which they contend the District of Columbia deprives plaintiffs due process:
Unduly burdensome documentation requirements;
Lack of coordination between OESSS and other offices within DHS;

Lack of a policy manual and worker training to ensure proper and consistent eligibility determinations;
Lack of eligibility determinations at the time application is made;
Lack of an effective appeals mechanism. Plaintiffs contend that these shortcomings create a substantial risk of erroneous eligibility determinations, and that improved measures can be instituted at little or no expense to defendant. An evaluation of plaintiffs' claims in light of the three factor balancing test set forth in Mathews v. Eldridge follows.
a. Private Interest at Stake
[8] The private interest at stake is this case is shelter for homeless families, one of the most fundamental human needs imaginable. The fact that the affected population approaches the emergency shelter system in an extremely vulnerable state-literally faced with the question of “where is my family going to sleep tonight?”-requires the Court to evaluate the District's requirements with particular sensitivity to the applicants' difficult circumstances. Gray Panthers v. Schweiker, 652 F.2d 146, 166 (D.C.Cir.1980).
The homeless families' interest is tempered somewhat, however, by the fact that not all applicants who meet the eligibility criteria actually receive shelter, due to funding constraints. Thus, the families' interest is strong but not dispositive.
b. Risk of Erroneous Deprivation, Benefit of Additional Safeguards, and Government Interest at Stake
The Court must also evaluate whether the District's policies and procedures concerning eligibility determinations present a significant risk that applicants will erroneously be deprived of shelter, and whether additional safeguards would reduce the risk of erroneous deprivation. This factor, along with the private interest at stake, is balanced against the government's interest in the procedures in question. The analysis is set forth separately for each of plaintiffs' major criticisms of the OESSS program.
1. Documentation Requirements

In evaluating the District's documentation requirements, the Court is mindful of the acutely vulnerable state of the homeless families who embark upon the emergency shelter application process. Outside observers coolly analyzing the system might find clarity and reason where those in a more desperate, chaotic position would not. Accordingly, it is imperative that the process and eligibility requirements be presented in as simple, clear, and accurate terms as possible.
Analysis of the risk of erroneous deprivation caused by the District's documentation requirements is complicated by the fact that the District's policies and procedures have changed substantially over the years.FN36 In evaluating the documentation requirements and their conformity to due process, the Court has determined that it is appropriate to limit the focus to experience under the present waiting list system, which has been in effect since January 1994. Experience under the previous systems, while interesting historically, is of limited probative value in evaluating the current system, which, under mootness doctrine, must be the focus of the inquiry.
FN36. See, e.g., the Court's discussion of denials for failure to assist in the verification process, supra.
Under the District's current policy and practice, applicants are plainly given notice, *457 via the Document Checklist, of the documentation required to establish eligibility for the program. As previously described, families are required to provide (1) Social Security cards for all adults and children; (2) long form birth certificates for all adults and children; (3) picture identification; (4) proof of income; and (5) proof of homelessness, in the form of a statement from a family member, former landlord, or property manager stating that the family can no longer live there, an executed writ of eviction, or a civil protection order.
Unquestionably the District is entitled to verify a family's eligibility for shelter, through documentation or otherwise. The applicable statute and regulations clearly permit-indeed, require-such verification, and it would be irresponsible for the District to do otherwise. The real question presented in this case is whether the District's documentation requirements are so burdensome and so inflexible, considering the population in question, such that they create a real risk that otherwise eligible families will be denied shelter.

[9] The Court is persuaded that two aspects of the documentation requirements are sufficiently burdensome and unjustifiable to create a risk that eligible applicants will be denied shelter or discouraged from pursuing the process altogether. First, the District's failure to define “reasonably available” documentation, and its corresponding lack of a formal policy for addressing situations where documents are not readily obtainable by applicants, present a serious risk of erroneous deprivation. The evidence at trial supported the District's position that families whose waiting list numbers are called but who lack all the requisite documentation are placed in shelter contingent upon providing verification. However, the contingent placement policy is not contained on the forms or explained to applicants. Consequently, there is a real risk that applicants mistakenly believe that if they do not provide all documents within seven days, they will be denied shelter. As a result, there is a significant risk of otherwise eligible applicants abandoning their quest for shelter because of obstacles to obtaining the requisite documents.FN37
FN37. In this regard, the District must also clarify the information on its forms stating that documents must be submitted within seven days. The modified language should conform with the District's policy that while documents should be submitted as soon as possible to facilitate swift eligibility determinations, the applicant's place on the waiting list is secure regardless of whether the documents are submitted within seven days, at the time of placement, or soon thereafter.
Similarly, while the District has legitimate reasons for requiring proof of identity, income, family relationship, and lack of shelter, it is critical that the District have policies for addressing the inevitable situation of applicants who, for one reason or another, are not in a position to obtain the relevant documentation. After all, the applicants in question are homeless. Given their unstable situation, they may well not have the luxury of ready access to complete family records, or an address to which missing documentation could be sent. Accordingly, the District must develop and implement policies which allow flexibility in the documentation requirements in appropriate circumstances, but which still enable the District to satisfy itself of an applicant's eligibility. The policies must be communicated clearly and accurately on the application forms and Document Checklist.
[10] Second, the District's failure to coordinate with other

offices within DHS concerning information required by OESSS but already on file elsewhere in DHS imposes an unreasonable burden upon homeless family applicants and creates a substantial risk that eligible applicants will be erroneously deprived shelter. Given the population involved in this case-homeless parents and their childrenit is critically important that the District streamline its requirements to eliminate unnecessary burdens on shelter applicants. For shelter applicants who present proof, via an identification card or otherwise, that they are AFDC recipients, OESSS must avail itself of information the District already has-e.g., in the AFDC case file or through ACEDS-rather than requiring the applicant to obtain duplicative documentation.
The benefits of such coordination are manifest, and the burdens on the District would *458 be minimal.FN38 At bottom, what is involved is the simple act of a telephone call or facsimile transmission between offices to verify information. Given the simplicity of the task, especially when compared to the paramount importance and benefit to homeless family applicants, it is both perplexing and distressing that such coordination has not yet been implemented. Accordingly, the District shall develop and implement policies to achieve coordination of information concerning eligibility verification between OESSS and other appropriate DHS offices.
FN38. At trial, the District argued that coordination with DHS staff responsible for AFDC would be difficult due to short staffing in the AFDC offices. While staffing considerations might mean that OESSS staff might not be able to obtain immediate information from AFDC workers, it does not mean that coordination is impossible.
Other aspects of the District's documentation requirements challenged by plaintiffs do not offend due process. For example, plaintiffs contend that the District's requirement that all children be present at the time of initial application imposed an undue hardship upon families. However, there is no evidence that this is the District's current practice; accordingly, plaintiffs' claims in this regard are moot.
[11] Another of plaintiffs' criticism concerns the District's requirement that applicants provide proof of actual execution of a writ of eviction if their reason for homelessness is the writ. However, because the purpose of the program is to provide emergency shelter to families

who are homeless, the Court does not find it unreasonable that the District requires actual execution of a writ as proof of homelessness. Prior to actual execution of the writ, circumstances may change that result in the writ being vacated. Plaintiffs' claims on this point are not persuasive.
Plaintiffs contend that OESSS requires applicants whose reason for homelessness is domestic violence to obtain a civil protection order, at great personal risk, as proof of homelessness. The evidence on this point is equivocal, and fails to demonstrate that OESSS actually requires, rather than recommends, that applicants obtain such an order. In any event, the Court expects that the situation faced by victims of domestic violence, and the obstacles to documentation for those in that situation, will be addressed by the District in its policies concerning the meaning of “reasonably available” documentation.
Finally, plaintiffs criticize the District's failure to consider mitigating circumstances at the time of application, which could spare an applicant who received shelter during the previous 12 months from disqualification. Plaintiffs' evidence on this claim is insufficiently compelling to demonstrate a denial of due process. Plainly, a failure to consider mitigating circumstances is a matter which unsuccessful applicants could raise in a fair hearing on appeal. But the evidence presented in this case concerning the failure to consider mitigating circumstances at the outset does not rise to the level of a systemic violation of due process.
2. Policy Manual/Worker Training
[12][13] With regard to plaintiffs' allegations concerning the lack of a policy manual and system of worker training, plaintiffs have not demonstrated, particularly under the present waiting list system, that the absence of a manual or comprehensive system of worker training has resulted in a persistent problem of erroneous deprivation of shelter benefits. While plaintiffs did present evidence of a few situations in which applicants were erroneously denied eligibility, it is well settled that occasional errors by individual employees do not establish a violation of due process. Carter v. District of Columbia, 795 F.2d 116 (D.C.Cir.1986). Rather, plaintiffs must show a “policy or custom” of erroneous deprivation. Id. at 122. This they have not done.
Furthermore, while theoretically a policy manual and additional worker training might well be useful in

documenting procedures and ensuring compliance with the procedures, the evidence established that OESSS workers have considerable guidance in making eligibility determinations. First, the statute and regulations governing the program are quite detailed in describing the eligibility requirements for shelter. Second, *459 Pamela Shaw presented unrebutted testimony that all OESSS employees are provided ongoing training, in addition to an intensive initial orientation period. Finally, the documents provided to homeless family applicants provide considerable information concerning the procedures OESSS follows in determining eligibility and allocating shelter. Thus, particularly in light of the lack of evidence concerning a policy or practice of erroneous determinations, plaintiffs cannot prevail on their policy manual and worker training claims.
3. Fair Hearings
[14] In the Court's view, the most egregious violation of due process in the existing system stems from the District's utter failure to provide timely hearings and decisions to applicants who believe they were wrongly denied eligibility. The problem starts with the fact that the District's notice concerning appeals is erroneous, advising appellants of an incorrect time frame within which decisions will be rendered. That problem is compounded by the fact that many applicants receive either no hearing or a greatly delayed hearing on appeal. In the meantime, contact with the applicant is frequently lost. Not only are applicants denied “the opportunity to be heard at a meaningful time and in a meaningful manner” concerning their eligibility for shelter, but the present system vividly illustrates the adage “justice delayed is justice denied.”
It is imperative that the District develop policies and procedures to assure that hearings take place within a reasonable time of a request and that decisions are rendered promptly thereafter. The Court will not at this juncture dictate a particular time frame within which hearings must be held and decisions rendered. Rather, the District must establish a specific time frame for hearings and decisions, taking into account the critically important benefits in question.FN39 In addition, the time frames must be clearly and accurately communicated to applicants on the Notice of Eligibility Determination.
FN39. The Court observes that the District apparently believed two days was a suitable and workable time frame for a hearing and decision, given that the District included this time frame

on its Notice of Eligibility Determination. Such a time frame, if followed, would comport with due process.
Moreover, while the Court will not micromanage the details of the District's fair hearing process, it would appear, given the need for swift action, that certain measures, such as a court reporter and transcribed hearings, might be dispensed with in favor of quicker and more economical means, such as taped proceedings, which are customarily used, even in criminal proceedings, before the Magistrate Judges of this Court.
[15] Plaintiffs contend that applicants should be given shelter pending an appeal, arguing that the vital nature of the benefits in question requires such a result. The Court disagrees. This is not a case of current recipients of benefits seeking continuation of benefits during termination proceedings. Rather, this case concerns applicants for benefits to which they are only entitled at the point in time they are determined eligible. Moreover, there are two points in time that an applicant could receive a negative Eligibility Determination: (1) at the time of initial application, and (2) at the time the applicant's waiting list number is called. With respect to those applicants who are denied at the point of initial application, it would be patently unfair to place those applicants in shelter prior to applicants whose waiting list numbers were actually called. In sum, shelter during the pendency of a quickly determined appeal is not justified here.
4. Lack of Eligibility Determination at Time of Application
[16] The District's failure to provide eligibility determinations at the time of a family's initial application is criticized by plaintiffs as a violation of due process.FN40
Granted, there is a considerable delay between a family's initial application and its eligibility determination, which does not generally take place until the time the family's waiting list number is called. The District has elected to link the eligibility determination with identification of available shelter for a particular applicant. After careful evaluation of the matter, *460 the Court accepts the District's rationale for delaying eligibility determinations until that time.FN41
FN40. Plaintiffs also contend this practice

violates the Equal Protection clause, as discussed below.
FN41. As the application packet itself states, “eligibility is point-in-time sensitive ... [accordingly,] a formal eligibility determination prior to the day of potential placement is of no value.” Pl.Exh. 175 at 2 ¶ 9.
Plaintiffs argue that applicants would benefit from earlier determinations, contending that even though shelter might not be provided until a later date, other benefits offered by the program to eligible families would be available. The Court is not persuaded that the modest nature of these benefits outweighs the District's interest in delaying eligibility determinations.
The benefits identified by plaintiffs include referrals to other social services, referral to Healthcare for the Homeless, priority on the DPAH waiting list, and case management services. While certainly useful to eligible families, these services certainly do not compare to the primary benefit of the program, which is shelter. Thus, when the nature of the benefits in question is balanced against the District's interest in the present system, the Court is persuaded that deferral of eligibility determinations until the time of possible placement does not deny applicants due process.FN42
FN42. With regard to the particular benefits in question, the Court earlier noted that case management services are not provided by OESSS, but rather by individual shelters. Moreover, the evidence adduced at trial suggests that priority on the DPAH waiting list is given to all homeless families, not just those in emergency shelter. Finally, with regard to referrals to Healthcare for the Homeless, the evidence at trial indicated that the clinic's facilities and staffing are very modest, permitting the staff to provide primarily screening and referrals to other healthcare providers. Applicants who receive AFDC would obtain more comprehensive medical care through Medicaid. Other eligible families might find the clinic's services of benefit, but in the Court's view, that benefit does not outweigh the District's interest.
B. EQUAL PROTECTION

[17][18][19][20][21] Plaintiffs contend that the present system of allocating shelter violates equal protection because it irrationally discriminates between eligible families, some of whom receive eligibility determinations and shelter, and some of whom do not. To pass constitutional muster under the Equal Protection clause, the District must demonstrate that the classification in question is rationally related to a legitimate governmental interest. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Stated differently, classifications which irrationally discriminate between similarly situated individuals violate Equal Protection. “Imperfect” classifications do not violate the Equal Protection Clause. Id. at 485, 90 S.Ct. at 1161. Moreover, “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” Id. At the same time, “[a]lthough states may have great discretion in the area of social welfare, they do not have unbridled discretion. They must still explain why they chose to favor one group of recipients over another.” Ranschburg v. Toan, 709 F.2d 1207, 1211 (8th Cir.1983).
[22] Upon consideration of the evidence produced at trial, the Court is persuaded that the District's system for allocating emergency family shelter satisfies the Equal Protection Clause. All families, except those with obvious eligibility problems, are placed on a waiting list for shelter. Their waiting list numbers are called in order, given family size and other appropriate considerations. Shelter is provided to eligible applicants whose waiting list numbers are called.FN43
FN43. In this regard, the Court is struck by the fact that plaintiffs have criticized all of the District's systems for allocating shelter, including the waiting list system, which leads the Court to wonder how plaintiffs would design a system to allocate shelter that is less than shelter on demand. Plaintiffs' expert, Dr. Rafferty, testified that the waiting list system imposes an undue hardship on homeless families. That same expert, however, testified that deciding how to allocate benefits among competing families would be like playing God, and she would not want to make that determination. She further admitted that a waiting list system would be one way to allocate the benefits.
While the waiting list system is not perfect, and while improvements could readily be made at little effort or expense (e.g., including

on the tape recording those waiting list numbers previously called but not yet claimed), the Court believes the waiting list system is a fair way of allocating scarce benefits among an overabundance of eligible families in need.
*461 Eligibility is not determined until the point in time that a potential shelter space becomes available for an applicant because eligibility is a time sensitive inquiry. An applicant's circumstances can change in the time between the initial application and the final eligibility determination.FN44 Thus, the District's policy of delaying an eligibility determination is entirely rational, and unquestionably satisfies the requirements of the Equal Protection Clause.FN45
FN44. The deposition testimony of Junetta Hill illustrates this point. Ms. Hill's waiting list number was called, but because she had an additional child in her family as compared to the time of her initial application, the accommodations OESSS had identified were no longer of suitable size for her family.
FN45. The fact that other eligible applicants do not receive referrals to Healthcare for the Homeless and other benefits as a result of the current system does not make the District's system irrational. As explained in greater detail in the discussion of due process, the Court views these benefits as fringe benefits as compared to the fundamental purpose of the program, namely shelter.
[23] Similarly, the District has a rational basis for discriminating between eligible families who receive shelter and eligible families who do not-namely, the District lacks the funding to provide shelter to all eligible families. Plaintiffs contend that the District's funding constraints are due in large part to the District's own actions. Consequently, they argue the District should not be permitted to justify its lack of shelter on this basis. Plaintiffs argument is unpersuasive.
Specifically, plaintiffs contend that the District lacks funding for emergency shelter because of mismanagement of its public housing program and its withdrawal from the federal reimbursement program for emergency family shelter. The Court certainly finds the District's withdrawal from the federal reimbursement program to be

irresponsible and short-sighted. It is difficult to fathom why the District would elect to forego federal aid which would enable the District to assist additional homeless families in need. Moreover, at least until the City Council changed the law to make the District's participation discretionary, the District's withdrawal from the federal program violated District law.
Still, however appalled the Court might be by the District's actions in this regard, it is not the province of the Court to second-guess the decisions of city leaders concerning the District's participation, or lack thereof, in a federal program. As the Supreme Court aptly stated in Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1163, 25 L.Ed.2d 491 (1970):
the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court ... [T]he Constitution does not empower this Court to secondguess state officials....
Thus, regardless of the Court's personal views on the matter, the Court certainly is not prepared to say that the District's decision violated the Equal Protection clause.
With regard to the District's alleged mismanagement of public housing, while conceivably better management would help move families from emergency shelter into permanent shelter and open up space in emergency shelter as a result, these allegations are simply too abstract to be considered in connection with this litigation. Moreover, this case is not about the public housing program. The claims in the case relate wholly to the emergency shelter program. No allegations in the complaint concern the public housing program; nor were the relevant officials of the public housing program named as defendants or otherwise involved in this case. Accordingly, the Court rejects plaintiffs' Equal Protection contentions relating to mismanagement of the public housing program and its possible effect on the emergency shelter program.
III. CONCLUSION
Stepping back and reviewing both the allegations and the evidence in this case, it is evident that many of plaintiffs' criticisms stem from the failure of the District's emergency shelter program to measure up to plaintiffs' expectations. Plaintiffs seek an emergency shelter system that essentially provides shelter on demand to those who *462 need it. Toward that end, documentation

requirements should be kept to a minimum, and all efforts should be directed toward swift placement of families in need.
The Court shares plaintiffs' vision as an ideal; presumably so do District officials. But that is not the system at issue in this case. As plaintiffs themselves aptly stated in their post-trial memorandum, presently “there is no emergency shelter available to homeless families in the District,” at least insofar as government-provided shelter is concerned. Memo. at 1. Rather, the District operates a program which provides temporary shelter to a limited number of families in need. Documentation of eligibility is more akin to other social service programs than a truly “emergency” shelter system.
The Court's task in this case has been to evaluate the present system, not to see whether it measures up to plaintiffs' ideal, but rather to see whether it measures up to the Constitution. The waiting list system, in general, is a fair way of dealing with a difficult situation. It is a rational way of allocating scarce resources to an overabundance of families in need. However, due process demands that the District modify its documentation requirements and improve its system for appeals to ensure that homeless family applicants receive all the process to which they are entitled under the Constitution of the United States.
In light of the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that within 60 days of this Memorandum Opinion and Order, the District shall develop and implement policies and procedures to define “reasonably available” documentation in view of the circumstances faced by homeless family applicants, and to provide for relief from certain documentation requirements for applicants for whom the documents are not “reasonably available.” The policies and procedures shall be clearly and accurately described in the application packet and the Document Checklist; it is
FURTHER ORDERED that within 60 days of this Memorandum Opinion and Order, the District shall develop and implement policies and procedures to require coordination between OESSS and other appropriate offices within DHS for the purpose of verifying information contained within DHS (e.g., Social Security cards, birth certificates, income information) for shelter applicants who are AFDC recipients; it is

FURTHER ORDERED that within 60 days of this Memorandum Opinion and Order, the District shall develop and implement policies and procedures to provide prompt hearings and prompt decisions on appeals from adverse eligibility determinations, and to include accurate information on the Notice of Eligibility Determination regarding the time frames for hearings and decisions; and it is
FURTHER ORDERED that plaintiffs shall submit their request for attorneys' fees on or before April 8, 1996. Defendant's opposition shall be filed on or before April 29, 1996; plaintiffs' reply, if any, shall be filed on or before May 13, 1996.
Judgment shall be entered in accordance with this Memorandum Opinion and Order on a separate Judgment issued this date.
IT IS SO ORDERED.
JUDGMENT
Judgment is hereby granted in favor of plaintiffs in part, against plaintiffs in part, in favor of defendant in part, and against defendant in part, in accordance with the accompanying Memorandum Opinion and Order and the Court's Memorandum Opinion and Order of March 27, 1995.
IT IS SO ORDERED.
D.D.C.,1996. Washington Legal Clinic for the Homeless, Inc. v. Barry 918 F.Supp. 440
END OF DOCUMENT

 
 United States District Court, District of Columbia. The WASHINGTON LEGAL CLINIC FOR THE
HOMELESS, et al., Plaintiffs, v.
Sharon Pratt KELLY, in her Official Capacity as Mayor of the District of Columbia, Defendant.
Civ.A. No. 93-0691 (JHG).
April 15, 1994.
MEMORANDUM OPINION AND ORDER
JOYCE HENS GREEN, District Judge. *1 Plaintiffs initiated a six-count complaint against defendant Mayor Sharon Pratt Kelly on April 5, 1993. Three months later, plaintiffs filed a motion for a preliminary injunction on Count One of their complaint. In their motion, plaintiffs requested that the Court, inter alia, enjoin Mayor Kelly from violating federal and District of Columbia laws and regulations governing the District of Columbia's emergency assistance program and order the District of Columbia to obey its regulations. Literally the evening before the preliminary injunction hearing, the defendant filed a supplemental memorandum stating that the case was moot because it had opted out of the family shelter component of its emergency assistance program that was the foundation of the preliminary injunction controversy. The preliminary injunction was denied on July 30th on the basis that the District of Columbia's decision to withdraw family shelter from the federal program rendered the issue moot. In that Memorandum Opinion, the Court premised its finding on the fact that “[i]t appears, although neither counsel made the record clear, that the District no longer operates an emergency family shelter program.”
On July 29th, plaintiffsFN1 filed an amended complaint containing seven counts, the last of which contends that the District of Columbia's failure to apply for federal funding violates District of Columbia law. Presently pending is the defendant's motion to dismiss.FN2For the reasons stated below, that motion is denied in part and granted in part.
BACKGROUND

The following allegations are drawn from plaintiffs' complaint: In a predecessor, related case,FN3 these same parties entered a non-binding Memorandum of Understanding (“MOU”) permitting individuals submitting applications for emergency shelter at the Office of Emergency Shelter and Support Services (“the OESSS”) limited access to advocates. Pursuant to the MOU, that case was dismissed without prejudice. At the conclusion of the period specified in the MOU, because the parties were unable to reach another agreement granting the access demanded by plaintiffs, this case was filed.
As part of its participation in the federal Aid to Families with Dependent Children (“AFDC”) program, the District of Columbia (“the District”) has participated in a federal Emergency Assistance (“EA”) program. Participation in the federal EA program is not mandatory. However, if a state (or the District of Columbia) chooses to participate, that entity must follow the guidelines set forth in the federal regulations. In order to participate, a state must submit a “state plan,” which is defined as
a comprehensive statement submitted by the State agency describing the nature and scope of its program and giving assurance[s] that it will be administered in conformity with the specific requirements stipulated in the pertinent title of the Act, the regulations in Subtitle A and this chapter of this title, and other applicable official issuances....
45 C.F.R. § 201.2 (1992). The state plan must “[s]pecify the eligibility conditions imposed for the receipt of emergency assistance” and “[p]rovide that emergency assistance will be given forthwith.”Id. § 233.120(a).“Each individual wishing to do so shall have the opportunity to apply for assistance under the plan without delay.”Id. § 206.10(a)(1). Under the plan, an applicant may be assisted, if he so desires, by an individual(s) of his choice (who need not be a lawyer) in the various aspects of the application process and the redetermination of eligibility and may be accompanied by such individual(s) in contacts with the agency and when so accompanied may also be represented by them.

Id. § 206.10(a)(1)(iii).
For the past eight years (until July 1993), the District of Columbia has accepted federal funding through the EA program. Part of the District's plan included an emergency shelter family program (“ESFP”) which defined those eligible, and did not list availability of space as an eligibility criterion. See39 D.C. Reg. 470, 472-74 (1992). Through the EA program, the District of Columbia is entitled to receive reimbursement from the federal government of 50% of its expenditures under the plan. Since July 1993, the District has opted out of the family component to the EA program and has received no federal funding for emergency family shelter.
*2 Families seeking temporary or emergency housing apply at the OESSS intake office. The entire family must be present to apply and applicants wait in the OESSS waiting room before they are interviewed by intake workers. Apparently, it can take days before a family receives an interview or is given an individualized eligibility determination. Moreover, plaintiffs allege that the District denies homeless families shelter benefits without making individual eligibility determinations -- families are denied shelter on the basis that the program is full. Plaintiffs contend further that intake workers often discourage families from applying for emergency shelter. As a result of these perceived abuses, a coalition of homeless and housing organizations has implemented an outreach and monitoring program, under which it has homeless advocates visit the OESSS waiting room in order to provide verbal and written information to applicants regarding their rights in the application process. As a general matter, the homeless advocates have not been permitted to assist applicants in the OESSS waiting room.
DISCUSSION
In viewing a motion to dismiss, “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [[[or her] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. Shear v. National Rifle Ass'n of Am., 606 F.2d 1251, 1253

(D.C. Cir. 1979). The plaintiff is entitled to all favorable inferences which may be drawn from those allegations. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
1. Count Seven
Because resolution of Count One turns on the Court's conclusion as to Count Seven, it is necessary to begin the discussion of the defendant's motion to dismiss with Count Seven of the Complaint.
Count Seven is based upon D.C. Code § 3-206.3(a), which states that:
The Mayor is authorized to operate an Emergency Shelter Family Program, which shall claim federal financial participation to the extent allowable by law for housing assistance and services to homeless families with minor children.
The language of the statute is clear. If the Mayor operates an ESFP, the Mayor must claim the maximum federal assistance possible. Thus, the Mayor may chose whether or not to operate such a program, but once she does decide to operate the program, she must request federal assistance.
Relying on the statute, plaintiffs claim that because the District of Columbia operates such a program, it is required by its own law to participate in the federal EA program. The Court agrees. Although this argument was raised at the preliminary injunction hearing, the preliminary injunction was denied, in large part, because it was not clear whether the District was still conducting an ESFP or whether services were being provided through another type of program. Now, however, the District does not contest its operation of an ESFP.FN4Rather, it disputes plaintiffs' interpretation of the above statute. The District of Columbia's arguments are unpersuasive.
*3 Statutory interpretation “begins with the language of the statute itself.” Pennsylvania Dep't of Pub. Welfare v. Davenport, 495 U.S. 552, 557-58 (1990). Where “the statute's language is plain, ‘the sole function of the courts is to enforce it according to its terms.”’United States v. Ron Pair Enters., Inc., 498 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). In light of the

unambiguous language of § 3-206.3(a), the legislative history highlighted by defendants cannot prevail. See United States Nat'l Bank v. Independent Ins. Agents of Am., Inc., 113 S. Ct. 2173, 2186 n. 11 (1993); see also West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991) (where the text of a statute “contains a phrase that is unambiguous -- that has a clearly accepted meaning in both legislative and judicial practice,” the meaning cannot “be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process.”). Because the EA program permits reimbursement as long as a state (or the District of Columbia) has submitted a state plan, the District of Columbia is required by its own statute to seek reimbursement through the EA program if it operates an ESFP.FN5Count Seven will not be dismissed.
2. Count One
A. Mootness
Even though the District no longer operates an EA plan, plaintiffs' allegations in Count One are not moot and the Court must reach the question of whether plaintiffs may invoke 42 U.S.C. § 1983 to redress alleged violations of federal law.
A case is moot when the issues presented are no longer “live.” Powell v. McCormack, 395 U.S. 486, 496 (1968). An intervening event renders a case moot if that event has eradicated the effects of the alleged violation and there is no reasonable expectation that the alleged violation will recur. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Seller v. Bureau of Prisons, 959 F.2d 307, 310 (D.C. Cir. 1992). However, in cases, such as the instant case, in which the defendant has voluntarily taken action that results in a cessation of the challenged conduct, a court may nonetheless decide the case. See United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (“voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case....”). A controversy remains because
[t]he defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.

Id. (footnote omitted).
The case is only moot if the defendant can demonstrate that “there is no reasonable expectation that the wrong will be repeated.”Id. (citation omitted). A profession by the defendant that it will no longer engage in the challenged activity is not sufficient to render a case moot. Id. at 633.In this case, because current law in the District of Columbia requires the District, if it operates an ESFP, to receive federal reimbursement to the fullest extent possible, the District's withdrawal from the federal EA program and its statement that it will no longer accept federal funding are insufficient to carry its heavy burden to show it will no longer engage in the challenged activity. Assuming arguendo, as the Court must do at this stage of proceedings, that the District of Columbia does continue to operate a ESFP signifies that in the future, this Court may require the District to participate in the EA program and submit a plan for approval. Because of D.C. Code § 3206.3(a), there remains a “cognizable danger of recurrent violation.” See W.T. Grant Co., 345 U.S. at 633; In re Ctr. for Auto Safety, 793 F.2d 1346, 1353 (D.C. Cir. 1986).
B. 42 U.S.C. § 1983
*4 Plaintiffs allege that the District has violated, under color of state law, federal regulations governing the District's participation in the EA program under Title IV-A of the Social Security Act, codified at 42 U.S.C. § 602et seq. Thus, plaintiffs contend they can sue the District pursuant to 42 U.S.C. § 1983 for the alleged violation of federal law.
In Maine v. Thibotot, 448 U.S. 1 (1980), the Supreme Court recognized that § 1983 could be utilized to redress violations of federal statutory rights. A decade later, in Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990), the Supreme Court synthesized its earlier caselaw and provided a useful analytical framework within which to determine when a private right of action exists under § 1983. To summarize Wilder, a court must determine: (1) whether the provision in dispute was intended to benefit the plaintiff; (2) if so, whether the provision reflects merely a “congressional preference” for a certain kind of conduct or a “binding obligation” on a government unit; and, (3) whether the interest

asserted is nonetheless “too vague and amorphous” that it is “beyond the competence of the judiciary to enforce.”Id. at 509 (citations omitted). If an individual can survive these three criteria, the right asserted is enforceable unless Congress has foreclosed such enforcement through a comprehensive enforcement mechanism.FN6Id. (citing Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 423 (1987)).
The Wilder framework has become less easy to apply since the Supreme Court issued Suter v. Artist M., 112 S. Ct. 1360 (1992). Understanding how that framework must now be applied requires a brief examination of Wilder and Suter.In Wilder, a health care provider initiated a § 1983 action challenging the methods by which Virginia reimbursed health care providers under the Medicaid Act. Wilder, 496 U.S. at 501. Under the Medicaid Act, the federal government provides financial assistance to states which furnish medical care to needy individuals. 42 U.S.C. § 1396. Although participation in the program is voluntary, if a state chooses to participate, it must submit to the Secretary of Health and Human Services, for approval, a plan for medical assistance. Id. § 1396(a). Among other things, the plan must contain a scheme for reimbursing health care providers. In the plan, the state must provide reimbursement rates and make findings and assurances that these rates are “reasonable and adequate” to satisfy the provider's costs. When determining the rates, the statute requires a state to consider three enumerated factors. Id. § 1396a(a)(13)(A). In Wilder, Virginia's state plan was approved by the Secretary and the plan did indeed contain a reimbursement plan as required by the statute. Nonetheless, the plaintiff sued the state on the ground that the rates it calculated were not reasonable and adequate.
Concluding that a § 1983 cause of action could be brought against the state by the health care provider, the Supreme Court held, as a preliminary matter, that health care providers were intended beneficiaries of the statutory provision. 496 U.S. at 510. Second, the Court concluded that a binding obligation was imposed on the states because the language of the provision was couched in mandatory terms, such as “must,” and the provision of federal funds was expressly conditioned on compliance with the plan. Id. at 512.Moreover, the plan required the state to

make findings and assurances to the Secretary that the rates were reasonable and adequate. Id. The Court rejected Virginia's argument that Congress left the determination that the state's rates were based on accurate findings to the Secretary, not to the courts, concluding that because the Secretary could reject a state plan, “a state is on notice that it cannot adopt any rates it chooses....”Id. at 513-14.“[R]equiring a state to find that its rates are reasonable and adequate” obliges the state to adopt reasonable and adequate rates. Id.
*5 Like Wilder, Suter involved a federal statute which provided federal reimbursement to states opting to participate and submit a state plan for approval to the Secretary of Health and Human Services. The statutory provision in question listed sixteen items to be included in the state plan in order to gain approval. 112 S. Ct. at 1364. The statute required the plan to be in effect in the state and to provide that “reasonable efforts” be made, prior to placing a child in foster care, to eliminate the need to remove the child from the home. Invoking this provision, the plaintiffs filed a class action claiming, inter alia, that the state failed to make reasonable efforts to prevent removal of children from their homes.
Unlike Wilder, the Court in Suter did not permit the plaintiffs to sue the state pursuant to § 1983. In Suter, the Court noted that, although the words of the Act requiring reasonable efforts were mandatory, the focus is “exactly what is required of states by the Act.”Id. at 1367.Because the statutory provision required only that the state have a plan approved by the Secretary to be eligible for reimbursement, the Court concluded that this was the only requirement placed on a participating state. Id. Distinguishing Wilder, the Court explained that “[w]e relied in part on the fact that the statute and regulations set forth in some detail the factors to be considered in determining the methods for calculating rates.”Id. at 1368.Then, the Court noted that the phrase “reasonable efforts” was not explained further in the statute and there was no guidance as to how to measure reasonable efforts.Id. Because the only directive to the state was the phrase “reasonable efforts,” and what would constitute reasonable efforts would vary depending on the circumstances, the details of compliance were left to the state. Discussing the statute's implementing regulations, the

Court commented that they “are not specific, and do not provide notice to the states that failure to do anything but submit a plan with the requisite features, to be approved by the Secretary, is a further condition on the receipt of funds from the Federal Government.”Id. at 1369.
Although the Court in Suter did not expressly apply the framework adopted in Wilder, Wilder and its framework were not overruled by Suter.Thus, most courts examining private rights of action under § 1983 have taken the Wilder framework and added to it the teachings of Suter. See, e.g., Albiston v. Maine Comm'r of Human Services, 7 F.3d 258, 263 (1st Cir. 1993); Procopio v. Johnson, 994 F.2d 325, 331 n. 9 (7th Cir. 1993); Howe v. Ellenbecker, 8 F.3d 1258, 1262 n.5 (8th Cir. 1993).But see Lampkin v. District of Columbia, No. 92-0910, 1992 WL 151813, at *5 (D.D.C. June 9, 1992). This Court agrees that the Wilder test still applies, albeit with the engraftment of Suter.Specifically, the second criteria in the threepart Wilder test -- whether the provision in question is a “binding obligation” or merely a “congressional preference” -- deserves heightened consideration.
*6 There is little dispute that these plaintiffs are the intended beneficiaries of the EA program. The thrust of defendant's argument is that the statute and regulations are not specific and do not provide notice to the District that failure to do anything but submit a plan with the requisite features is a further condition of federal funding. Thus, applying Wilder and Suter, whether plaintiffs may invoke § 1983 turns on whether the provisions plaintiffs invoke are binding obligations on the District and whether the interests they assert are within the competence of the judiciary to enforce.
In the instant case, plaintiffs allege that the defendant has violated federal regulations that: (1) “specify the eligibility requirements imposed,” allow all those wishing to apply for benefits to do so without delay, see45 C.F.R. §§ 233.120(a), 206.10(a)(1), and comply with the requirements imposed, see id. §201.6(a); (2) allow an applicant to be “assisted if he so desires, by an individual(s) of his choice ... and ... be accompanied by such individual(s) in contacts with the agency...,”see id.§ 206.10(a)(1)(iii), and, (3)“provide that emergency assistance will be given forthwith, see id.§ 233.120(a)(5).

Factually, the structure of the statute and regulations involved in the instant case is almost exactly that involved in Suter.Both cases involve federal programs under which a state can opt to join. Of most importance is the fact that the statute and regulations in both cases merely list particular components that the state must include in its plan. Like in Suter, in this case, no statutory provision and no regulation require the state to do anything more than submit a state plan. As the First Circuit noted:
Suter instructs that, when a provision in a statute fails to impose a direct obligation on the States, instead placing the onus of compliance with the statute's substantive provisions on the federal government, no cause of action cognizable under section 1983 can flourish.
Stowell v. Ives, 976 F.2d 65, 70 (1st Cir. 1992). Here, aside from submission of a state plan with certain specified components, there is no direct and binding obligation imposed on the District of Columbia. Moreover, the regulations permit only the Secretary of Health and Human Services to decrease or terminate funding upon a determination that the state is failing to comply with the statute or regulations. The onus of compliance has unequivocally and firmly been placed upon the shoulders of the federal government. Except for submission of a plan with specified components, no other binding obligation is imposed upon the states. Thus, these plaintiffs may not invoke § 1983. Count One is dismissed.
3. Count Two
Count Two is captioned “Violation of District of Columbia Law and Municipal Regulations”FN7 and contends, inter alia, that the District has refused to evaluate eligible applicants' need for social and health services and has not provided written or oral notice of denials of shelter in direct violation of District of Columbia regulations. Because, however, D.C. Code § 3-606(d) and § 1-1510 provide that the District of Columbia Court of Appeals has “exclusive” authority to review adverse emergency shelter decisions, Count Two of the complaint must be dismissed. This Court cannot resolve purely local matters expressly reserved for a different court.
4. Counts Three and Five

*7 Both Counts Three and Five involve alleged violations of plaintiffs' First Amendment rights.FN8The parties agree that whether plaintiffs' rights have been unconstitutionally abridged turns on whether the OESSS waiting room can be considered a public forum and even if not, whether the restrictions on speech imposed are reasonable.FN9The parties disagree whether these issues may be resolved at this stage of the proceedings.
Because public forum issues generally require factual development, plaintiffs' First Amendment claims will not be dismissed. See Stewart v. District of Columbia Armory Bd., 863 F.2d 1013, 1016-19 (D.C. Cir. 1988) (dismissal of First Amendment public forum claim inappropriate due to necessity of factual development).
5. Counts Four and Six
Counts Four and Six involve due process and equal protection challenges to the distribution of District of Columbia benefits. Plaintiffs allege that the District distributes its benefits in an arbitrary and capricious manner.FN10
To determine whether plaintiffs' due process rights have been violated, it is first necessary to determine whether they had a protected liberty or property interest. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Tarpeh-Doe v. United States, 904 F.2d 719, 722-23 (D.C. Cir. 1990), cert. denied, 498 U.S. 1083 (1991). Although the Supreme Court has not yet ruled whether an applicant, as opposed to a recipient, of public benefits can present a due process claim, others courts have held that applicants can present constitutional claims. See Ressler v. Pierce, 692 F.2d 1212, 1214 (9th Cir. 1982); Kelly v. Railroad Retirement Bd., 625 F.2d 486, 489-90 (3d Cir. 1980).But see Hill v. Group Three Housing Development Corp., 799 F.2d 385, 391 (8th Cir. 1986); Eidson v. Pierce, 745 F.2d 453, 461 (7th Cir. 1984). However, clearly not all applicants for all public benefits can make a due process claim. The statutes and regulations concerning the benefit in issue must give the individual “a legitimate claim of entitlement” to the benefit, see Board of Regents v. Roth, 408 U.S. 564, 577 (1972), or the statutes and regulations must restrict the exercise of discretion, placing “substantive limits on official discretion.”

See Tarpeh-Doe, 904 F.2d at 722. According to the amended complaint, plaintiffs are entitled to receive benefits if they meet the requirements established under District of Columbia law and regulations. Moreover, as stated supra, if the District operates an ESFP, it must accept federal funding and must abide by a plan. Therefore, construing liberally plaintiffs' factual allegations, plaintiffs have stated a claim upon which relief may be granted.
Plaintiffs have also stated an equal protection claim sufficient to withstand the defendant's motion to dismiss. Equal protection is not violated if the challenged classification is rationally related to a legitimate government purpose. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58 (1988). Plaintiffs contend that the District lacks a rational system to distribute emergency shelter benefits, resulting in unequal treatment of eligible beneficiaries. Accepting as true plaintiffs' allegations, as the Court must at this stage of proceedings, eligible families are treated dissimilarly. Whether there is actually disparate treatment and if so, whether that disparate treatment is rationally related to a legitimate government interest still remain to be determined.
CONCLUSION
*8 For the reasons stated above, it is hereby
ORDERED that the Family Plaintiffs' Motion for Class Certification is granted. Franzin Melton and Tammy Montague are class representatives for “Homeless families seeking eligibility determinations after November 1, 1991, under the District of Columbia state plan for Emergency Assistance which provides for emergency shelter.”; it is
FURTHER ORDERED that Defendant Mayor Kelly's Motion to DismissFN11 Plaintiff's First Amended Complaint is denied as to Counts Three, Four, Five, Six and Seven. That motion is granted as to Counts One and Two. Counts One and Two are dismissed from this case; and, it is
FURTHER ORDERED that there shall be a status conference on May 13, 1994 at 9:45 a.m. to discuss the future progress of this case.

IT IS SO ORDERED.
FN1. There are four classes of plaintiffs: The Washington Legal Clinic for the Homeless; The Father McKenna Center of St. Aloysius Church; Frank Trinity, Lisa Goode, Patricia Kennedy, Diann Hammer, and Sunny Kim (“the Advocates”); and, Franzin Melton, Angelina Easter, Tomikio Hall, Koya Harleston, Debra King, and Tammy Montague (“the Family Plaintiffs”).
FN2. Also pending is the Family Plaintiffs' unopposed motion for class certification pursuant to Federal Rule of Civil Procedure 23. The proposed class consists of:
Homeless families seeking eligibility determinations after November 1, 1991, under the District of Columbia state plan for Emergency Assistance which provides for emergency shelter.
Franzin Melton and Tammy Montague are the proposed class representatives. Because the proposed class meets the requirements of Rule 23(a) --numerosity, commonality of questions of law and fact, typicality of claims or defenses between the proposed representatives and the class, and adequacy of representation by the proposed representatives -- and in light of the lack of opposition to the Family Plaintiffs' Motion for Class Certification, the above described class is certified pursuant to Rule 23(b)(2).
FN3.CA No. 92-1894.
FN4. On a motion to dismiss the Court must accept as true all of plaintiffs' factual allegations. At a later date in this litigation, the District may, if appropriate, contest the existence of an ESFP.
FN5.Section 3-206.3(a) does not conflict with § 3-602. A plain reading of § 3206.3(a) does not require the District of Columbia to provide overnight shelter for all families. It permits the Mayor to operate a

program, but provides no limitations on that program. Nor does the federal EA program require mandatory overnight shelter. The District can choose to operate a limited emergency family shelter program, strictly limiting the circumstances under which a family may be entitled to shelter. For example, one of the eligibility criteria for acceptance in an ESFP could be as the District's space and resources allow. Such a program would comply both with § 3206.3(a), the federal EA program, and not be inconsistent with § 3-602 (or any other District of Columbia law cited for this Court's review).
FN6. In the instant case, Congress has not foreclosed enforcement of the provision through the use of § 1983.
FN7. Plaintiffs' opposition to defendant's motion to dismiss contends this Court can review the matters complained of because
this lawsuit challenges defendant's failure to follow Constitutional requirements, and local and federal rules for administering the EA program which result in defendant's deprivation of plaintiffs' rights.
Plaintiffs' Opposition to Defendant's Motion to Dismiss the First Amended Complaint, at 51 (emphasis added). They add that constitutional claims do not always require exhaustion of administrative remedies. Id. Count Two contains no constitutional component. Thus, plaintiffs cannot now amend their amended complaint to add a constitutional claim to Count Two. Moreover, plaintiffs have already challenged the constitutionality of the District's action in Counts Three through Six.
FN8. The Court will not extend Younger v. Harris, 401 U.S. 37 (1971) (assuming arguendo Younger applies to the District of Columbia), to the constitutional arguments presented by plaintiffs. As this Circuit has noted:

The need or wisdom of extending Younger to all constitutional claims that might be adjudicated in state as well as federal courts ... is far more problematical. This extension would make federal courts cinderellas to their sister state courts in adjudicating federal constitutional rights, their native area of competence and jurisdiction. And it would prevent plaintiffs from exercising their traditional choice of bringing constitutional claims in either forum....
Family Div. Trial Lawyers of the Superior Court v. Moultrie, 725 F.2d 695, 702 (D.C. Cir. 1984).
Nor will the Court accept defendant's contentions that the issues are moot and that these plaintiffs do not have standing to raise constitutional challenges. First, the fact that the District is willing to abide by the concessions it made in the earlier operating MOU cannot render plaintiffs' First Amendment claims moot -- the MOU is no longer in effect. Second, plaintiffs allege personal injury, fairly traceable to the defendant's actions, which is likely to be redressed by the requested relief should that relief be awarded. See Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992). Standing also exists.
FN9. Whether plaintiffs have been unconstitutionally deprived of access to the courts cannot be resolved on this motion to dismiss.
FN10. Because no suspect class or fundamental right is at stake, heightened scrutiny need not be applied.
FN11. So that there is no confusion, any other motions to dismiss earlier filed are denied as moot.
D.D.C. 1994 Washington Legal Clinic for Homeless v. Kelly Not Reported in F.Supp., 1994 WL 823564 (D.D.C.)

END OF DOCUMENT

 
 United States District Court, District of Columbia. The WASHINGTON LEGAL CLINIC for the HOMELESS, INC., et al., Plaintiffs, v.
Marion BARRY, in his Official Capacity as Mayor of the District of Columbia, Defendant. Civ. A. No. 93-0691(JHG).
July 23, 1996.
ORDER
JOYCE HENS GREEN, District Judge. *1 In its February 1996 Memorandum Opinion and Order, the Court required the District of Columbia FN1 to make certain modifications in documentation requirements imposed upon applicants for emergency family shelter, directed the District to implement measures to improve the exchange of information regarding eligibility between government agencies, and ordered the District to develop and implement policies and procedures to ensure prompt hearings and decisions on appeal for unsuccessful applicants for emergency shelter. The District was ordered to report to the Court within 60 days on actions taken in response to the Court's Order.
FN1. Because Marion Barry is sued in his official capacity as Mayor of the District of Columbia, this Order refers to the District of Columbia as the defendant.
The District timely filed a report to the Court. The report described actions taken by the District to ease documentation requirements on shelter applicants and to improve coordination of documentation between various offices within the Department of Human Services. With regard to the Court's order to improve the time frames for hearings and decisions on appeals, however, the District's report contends that it is bound by the time frames contained in the general statutory provisions governing fair hearings for public assistance programs, codified at D.C.Code § 3-210.1et seq. That provision requires applicants to file a notice of appeal within 90 days of an adverse determination, requires hearings to take place within 45 days of a request, and generally requires final decisions to be issued within 60 days of the request.

The District contends that these provisions, which were not brought to the Court's attention by either side during trial or in post-trial submissions FN2, trump the statutory provisions and regulations governing the emergency shelter program.
FN2. The statute was included in plaintiffs' Notice of Filing of Applicable Laws and Regulations, as part of an 82-page chapter on “Public Assistance,” the provisions of which concern “Old Age Assistance,” Aid to Families with Dependent Children, General Public Assistance, and numerous other public assistance programs, as well as the emergency shelter provisions. Regrettably, the statutory provisions were not discussed by witnesses or highlighted by counsel for either side during trial; rather, the testimony and argument focused on the regulations governing the emergency shelter program.
Plaintiffs criticize the District's actions as deficient in numerous respects. Plaintiffs dispute the District's claim that it cannot modify the fair hearing process in light of D.C.Code § 3-210.1, urging the Court to find that the statute governing the emergency shelter program specifically authorizes the Mayor to promulgate regulations on fair hearings for the program. In addition to making specific recommendations for further improvements, plaintiffs ask the Court to order the District to take further action to improve the documentation requirements and the fair hearing process.
The District has appealed from the Judgment issued in conjunction with the Court's Memorandum Opinion and Order, but it has not requested or been granted a stay of the Court's Order pending appeal. While the case is on appeal, the Court retains jurisdiction to enforce or modify its injunction, if appropriate, to preserve the status quo during the pendency of an appeal. Fed.R.Civ.P. 62(c); see also Sierra Club v. Cedar Point Oil, 73 F.2d 546, 578 (5th Cir.1996) (“district court's power to alter an injunction pending appeal is limited to maintaining the status quo' ”); McClatchy Newspapers v. Central Valley Typo. Union, 686 F.2d 731, 734 (9th Cir.), cert. denied, 459 U.S. 1071 (1982) (same). However,

the Court does not have jurisdiction to revisit the underlying merits.
*2 The Court's directives to the District and the District's responses are discussed in turn below.
1. Modification of Documentation Requirements
The Court ordered the District to develop and implement policies and procedures to define “reasonably available” documentation and to provide relief from the requirements for applicants for whom the documents are not “reasonably available.” Washington Legal Clinic for the Homeless v. Barry, 918 F.Supp. 440, 462 (D.D.C.1996).
Pursuant to an April 23, 1996 memorandum from Annie Goodson, Acting Commissioner of the Department of Human Services, applicants are required to provide reasonably available documentation of their eligibility. “Reasonably available” is defined as “documents in the possession of the applicant or readily obtainable by the applicant.” Furthermore, “if the applicant can show that documents are not reasonably available despite reasonably diligent efforts to obtain them, the Department [of Human Services] may waive the requirement to produce the document.” Def.Exh.A.
Plaintiffs contend that the District's policy should be that “the only documents which are required are those documents currently in the possession of the applicant.” Response at 3. Plaintiffs' position misconstrues the Court's Memorandum Opinion and Order. The Court did not mandate that the District's requirements be so limited, but rather required the District to develop and implement policies to ease the documentation requirements in certain circumstances, recognizing the situation faced by many homeless family applicants who might not have ready access to the desired documentation.
The Court is concerned, however, that the definition of “reasonably available” lacks clarity and precision. Complicating matters is the fact that the policy grants total discretion as to whether to waive the documentation requirements. The District's policy states only that the District “may” waive a requirement if the applicant can show that the document is not “reasonably available.”

Accordingly, supplementation of the policy is necessary to further define “reasonably available” as well as to provide more concrete standards for waiving the documentation requirements. In preparing such supplementation, the District must bear in mind the Court's earlier Order that the District's policy should “provide for relief from certain documentation requirements for applicants for whom the documents are not ‘reasonably available.’ ” 918 F.Supp. at 462. Accordingly, if the documents are not “reasonably available,” the applicant should be relieved of the documentation requirement, and the matter should not be left to the discretion of an intake worker.
Finally, while the Court recognizes that the District's overall policy cannot address all possible scenarios in which documents are not available, the Court is confident, given the District's experience with the program, that it can provide greater guidance on the meaning of the term “reasonably available.” In this regard, the Court does not object to the District's general definition: “in the possession of the applicant or readily obtainable,” but believes that further elaboration on the meaning of “readily obtainable” for applicants who are homeless and lack resources and transportation, is necessary to effectuate the directives earlier issued by the Court.
*3 The District's supplementation must be provided by September 6, 1996. At that time, the District must also explain why the Document Checklist continues to request that documents be provided within seven days, when the District does not utilize the documents for an eligibility determination until such time that an applicant's waiting list number is called, typically far more than seven days after the date of application. See 918 F.Supp. at 457 n. 37.FN3
FN3. With regard to the waiting list, the Court observes that the modified information sheet concerning the waiting list states that applicants who fail to appear at the OESSS office on the day their waiting list number is called “may ” have their space held for three days. However, the testimony at trial suggested that an applicant's space was retained for 14 days. The District must explain this apparent discrepancy in its supplemental submission.

2. Document Coordination
As previously stated, the Court required the District to develop and implement policies and procedures to ensure greater coordination between various offices within the Department of Human Services, so that applicants for family shelter would not be required to provide documentation already in the possession of the Department. According to the revised Document Checklist (Def.Exh.B), “For applicants currently receiving benefits from the Department of Human Services and former applicants FN4 whose information is still contained in the data base for the agency, documents already in the possession of said Department will not have to be provided by applicants.” Assuming that “data base” refers both to computer data bases as well as hard copies of information, this policy complies with the Court's Order.
FN4. It is unclear whether the District intended to refer to “recipients” rather than “applicants”. If so, the appropriate change should be made in the form.
However, the Court is troubled by statements in the Goodson memorandum which appear to dilute the plain statement on the Document Checklist. According to the Goodson memorandum, the shelter program will “attempt to verify eligibility from information in the Department's database” before requiring it from the applicant. The memorandum does not describe what sort of “attempt” will be made prior to requesting the documents from the applicant. In its supplemental submission, the District shall clarify this matter and shall describe the specific procedures its personnel will employ to obtain information from the Department's files. The District shall also clarify that “data base” includes both computer records as well as hard copies of documents from files.
3. Appeals Procedures
The Court previously found that the District's system for appeals from adverse eligibility determinations violated due process, and the Court ordered the District to develop and implement policies and procedures to provide prompt hearings and decisions on appeals. The Court stated that it would not dictate

a particular time frame within which hearings and decisions must take place, but rather directed the District to “establish a specific time frame for hearings and decisions, taking into account the critically important benefits in question.” 918 F.Supp. at 459.
As previously mentioned, the District responded by stating that it lacked authority to modify the time frames for fair hearings because the time frame for appeals from emergency shelter determinations was governed by the general statutory provisions concerning fair hearings for all public assistance programs. Consequently, the District modified the time frames on its Notice of Eligibility Determination (Def.Exh.D) to comport with D.C.Code § 3-210.1et seq. Thus, the revised notice states that unsuccessful applicants for emergency shelter have 90 days within which to request a fair hearing, that a hearing shall take place within 45 days of the request, and that a decision regarding emergency shelter will be issued within 60 days of the request for a hearing. By contrast, the District's previous form stated that decisions would be rendered within two days of an appeal.
*4 In addition, in its revised Notice of Eligibility Determination, the District lengthened the time frames for informal administrative reviews. While the initial form stated that requests for administrative review must be made within 24 hours and a decision rendered within 24 hours of the request, the modified form states that requests must be made within 10 days and a decision made within seven days of the request, although efforts would be made to reach a decision in one to three days.
Neither during the entire trial of this case nor during post-trial submissions did the District (or plaintiffs) raise this argument or bring the general statutory provisions to the attention of the Court. The Court therefore issued its Memorandum Opinion and Order and corresponding Judgment based on the information contained in the forms utilized by the District, the District's regulations on the emergency shelter program, the statute governing the emergency shelter program, and the arguments of counsel. Thus, the District cannot be heard to argue at this late date about potential conflicts between the general fair hearing statute and the fair hearing time frames at issue in this case.

Nor does the Court believe the overall fair hearing statute necessarily conflicts with the provisions in the emergency shelter statute. The general fair hearing provisions set outer limits on the time frames for fair hearings, but do not appear to prohibit shorter time frames. The emergency shelter statute specifically authorizes the Mayor to promulgate regulations to implement the emergency shelter program, including hearings on decisions affecting the receipt of benefits. D.C.Code § 3-206.3. Indeed, the Mayor has already utilized this authority and promulgated regulations which contain time frames different from those contained in the general fair hearing statute. 29 DCMR 2511-2512. Accordingly, the District must modify its time frames for fair hearings for emergency shelter, and restore its prior time frames for administrative reviews, in accordance with the Court's Memorandum Opinion and Order. In its supplemental submission, due September 6, 1996, the District must describe the specific measures it has taken to develop and implement the revised time frames, including regulatory changes if necessary. No extension of the date for the supplemental submission is envisioned.
No stay will be granted by this Court during the pendency of the District's appeal, due to the emergency nature of the benefits in question, as reflected in the Court's Memorandum Opinion and Order of February 23, 1996 and this Order. However, resolution of plaintiffs' request for attorneys' fees will await the final decision of the Court of Appeals on the pending appeal.
IT IS SO ORDERED.
D.D.C.,1996. Washington Legal Clinic for Homeless, Inc. v. Barry Not Reported in F.Supp., 1996 WL 422494 (D.D.C.)
END OF DOCUMENT

 
 Washington Legal Clinic for the Homeless v. Barry

http://www.nclsplp.org/cases/51731.htm

Homeless Not Entitled to Emergency Shelter in District of Columbia
Washington Legal Clinic for the Homeless v. Barry , No. 96-7066 (D.C. Cir. Mar. 4, 1997) Clearinghouse No. 51,731
The District of Columbia (DC) Circuit Court of Appeals has reversed the district court ruling that DC law created a constitutionally protected entitlement to emergency shelter. In 1984 DC voters passed the Right to Overnight Shelter Act (ROSA), which guaranteed all persons the right to adequate shelter. The city council later enacted a law creating a temporary shelter program for eligible families. Citing an "explosion" in costs, the city council amended both acts to state that neither created an entitlement to overnight shelter. Because the city lacked space to accommodate all families seeking shelter and because the ROSA and its regulations did not direct the shelter office how to allocate shelter, the shelter office developed a system for allotting space to eligible families. Plaintiff appellee legal clinic for the homeless alleged that defendant appellant violated due process and equal protection guarantees by imposing unnecessary and burdensome documentation requirements and by failing to afford timely hearings for disappointed shelter applicants. The court held that although DC law established objective eligibility criteria for families seeking shelter, the homeless lacked an expectation of shelter sufficient to create a property right. The court reasoned that city could not provide enough shelter to meet the needs of all those eligible, and the allocation of limited space was left to the unfettered discretion of city administrators. The court, however, held that city's policy limiting advocate visits to a shelter office waiting room violated the First Amendment because city did not offer tenable reasons for restricting access, and its rationale for guarding against overcrowding was not reasonable.
Documents Available: 51,731A Opinion
To order documents, click here.

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323 U.S.App.D.C. 219

WASHINGTON LEGAL CLINIC FOR THE HOMELESS, et al., Appellees v.
Marion S. BARRY, Jr., Mayor of the District of Columbia, Appellant.

No. 96-7066.

United States Court of Appeals,District of Columbia Circuit.

Argued Nov. 8, 1996. Decided March 4, 1997. Rehearing Denied June 12, 1997.*

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 [323 U.S.App.D.C. 220] 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:

1

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.

2

* 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

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« uph3-o2u0s6in.3g(aas).sistance and services to homeless families with minor children." Id. §

3

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.)).

4

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 [323 U.S.App.D.C. 221] 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.

5

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."

6

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.

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7 « uprevHieowmwelietshsinfatmheiliSehserlutelerdOifnfiecleig, iDb.lCe .foMruenm. eRreggesn.ctyits. h2e9l,t§er2m51a2y.1o,botraainhaedamriningisbterfaotriveethe 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.

8

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.

9

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).

10

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. [323 U.S.App.D.C. 222] 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.

11

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.

Barry, Civ. No. 93-0691, slip op. at 20, 23 (D.D.C. Mar. 27, 1995) ("WLCH I"). However,

concluding that the District "reasonably determined that it cannot accommodate

innumerable additional individuals in [the Shelter Office waiting room]," the court

sustained the limit to one unsolicited advocate at a time. Id. at 22.

12

Next, the district court ruled that by opting out of federal funding for the city's

emergency shelter services, the Mayor had violated D.C.CODE ANN. § 3-206.3(a).

Washington Legal Clinic for the Homeless, Inc. v. Barry, Civ. No. 93-0691 (D.D.C. Apr. 12,

1995) ("WLCH II"). The court reached this result even though, again acting through

emergency legislation, the District amended section 3-206.3(a) and related code

provisions to make the city's participation in federal emergency assistance programs

discretionary, rather than mandatory. Id. at 1-2. "The fact remains," the district court

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«

upcAopnrcillu11d,e1d9,9"5th[wathfernomthJeucliyty1,c1h9a9n3g[ewdhtehne

the city opted out of the statute], defendant was

federal program] in violation of §

until

3-206.3(a) of the District of Columbia Code." Id. at 2.

13

Third, the district court ruled that plaintiffs had a constitutionally protected right to

emergency shelter. WLCH I at 16-17. Following a bench trial, the court held that two

aspects of the District's documentation requirements--the city's failure to define

"reasonably available" documentation and to coordinate with other DHS offices to

assemble documentation--violated plaintiffs' due process rights. Washington Legal Clinic

for the Homeless, Inc. v. Barry, 918 F.Supp. 440, 457 (D.D.C.1996) ("WLCH III"). The

court also ordered the city to develop swifter appeal procedures. Id. at 459. Finally,

finding no discrimination in the wait-list system for allocating emergency shelter, the

court entered judgment for the District on plaintiffs' equal protection claim. Id. at 461.

14

Only the city, challenging the district court's due process and First Amendment

rulings, has appealed. Because the district court's rulings are either conclusions reached

on summary judgment or conclusions of law following trial, our review is de novo. SEC v.

Life Partners, Inc., 87 F.3d 536, 541 (D.C.Cir.1996) (questions of law reviewed de novo );

Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994) (de novo review on summary judgment).

II

15

Before addressing the district court's due process ruling, we emphasize what is at stake

in this case and what is not. The quantity of emergency shelter available to homeless

families is not at issue. The District does not attempt to supply shelter to all eligible

families, nor does the Clinic seek the creation of additional shelter space. Because the

city's emergency family shelters operate at capacity, a fact counsel for the District

confirmed at oral argument, this case is not about available beds going empty while

homeless families pursue Kafkaesque application procedures. Nor is this case about

discrimination in the shelter allocation process; the district court found that the city's

current procedures satisfy the Fifth Amendment's equal protection guarantee, a decision

the Clinic does not appeal. The sole question before us is whether D.C. laws and

regulations governing the city's emergency family shelter program create a

constitutionally protected property interest in shelter, which in turn would require that

the District's allocation and appeal procedures satisfy due process standards.

16

[323 U.S.App.D.C. 223] We begin with familiar principles. The Fifth Amendment's Due

Process Clause prohibits the District of Columbia from depriving persons of "property,

without due process of law." U.S. CONST. amend. V. Individuals are entitled to due

process, however, only if they have a constitutionally protected property interest. Brock

v. Roadway Express, Inc., 481 U.S. 252, 260, 107 S.Ct. 1740, 1746-47, 95 L.Ed.2d 239

(1987); Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548

(1972). To have a property interest in a government benefit, "a person clearly must have

more than an abstract need or desire for [the benefit]. He must have more than a

unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."

Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Entitlements derive from "an independent source

such as state law," i.e., statutes or regulations "that secure certain benefits and that

support claims of entitlement to those benefits." Id.

17

To determine whether a particular statute creates a constitutionally protected property

interest, we ask whether the statute or implementing regulations place "substantive

limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741,

1747, 75 L.Ed.2d 813 (1983); Tarpeh-Doe v. United States, 904 F.2d 719, 722

(D.C.Cir.1990). Statutes or regulations limit official discretion if they contain " 'explicitly

mandatory language,' i.e., specific directives to the decisionmaker that if the regulations'

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upsCuobrsretacntitoivnes

predicates are present, v. Thompson, 490 U.S.

a particular outcome must follow." Kentucky Dep't 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506

of

(1989) (quoting Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871-72, 74 L.Ed.2d

675 (1983)). In Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d 287

(1970), for example, the Supreme Court held that because persons meeting state AFDC

eligibility standards automatically qualified for benefits, eligible individuals had a

protected property interest in the receipt of the benefits. Where, however, the legislature

leaves final determination of which eligible individuals receive benefits to the "unfettered

discretion" of administrators, no constitutionally protected property interest exists.

Roth, 408 U.S. at 567, 92 S.Ct. at 2704; see Eidson v. Pierce, 745 F.2d 453, 462 (7th

Cir.1984) (where landlord participating in federal housing subsidy program has discretion

to judge whether an eligible applicant is "otherwise acceptable," no property interest in

housing subsidy).

18

Applying these principles, we ask whether homeless families meeting the statutory

qualifications for shelter are entitled to receive it. If so, as in Goldberg, eligible families

would have a constitutionally protected property interest in shelter. 397 U.S. at 262, 90

S.Ct. at 1017-18. But if not entitled to shelter because administrators have discretion to

choose among otherwise eligible families, they would have no constitutionally protected

interest. See Eidson, 745 F.2d at 464.

19

As the Clinic observes, the eligibility standards set forth in the Overnight Shelter Act

and its regulations are "fact based, objective criteria .... [which] do not involve intangible

assessments or discretionary factors." Appellees' Br. at 20. If all families meeting these

criteria received shelter, we would agree with the district court and our dissenting

colleague that applicants have a constitutionally protected entitlement to shelter. But

that is not this case.

20

All parties agree and the City Council has recognized that the District has insufficient

resources to provide shelter for all eligible families. Indeed, the supply of emergency

shelter has dropped precipitously, from 495 spaces in late 1994 to only 139 in May 1995.

WLCH III, 918 F.Supp. at 447. Moreover, neither District statutes nor implementing

regulations set forth standards or procedures for allocating scarce shelter space among

eligible families. The city has left that matter to the discretion of the Shelter Office. When

appellants filed this lawsuit, for example, the Shelter Office used a first-come, first-served

system for allocating emergency shelter. Homeless families camped out overnight outside

the Shelter Office attempting, often fruitlessly, to secure priority in the application

process. WLCH III, 918 F.Supp. at 446. Families found eligible for shelter on one day but

turned away for lack of space [323 U.S.App.D.C. 224] returned to square one the next

morning, competing for priority with other rejected families as well as with families

entirely new to the process. Id. Under this system, not all eligible families received

shelter. As in Thompson, although the "substantive predicates" conferring eligibility

might be present, a "particular outcome" might not follow. 490 U.S. at 463, 109 S.Ct. at

1910.

21

In early 1994, the Shelter Office abandoned the first-come, first-served system,

replacing it with the wait-list procedures currently in effect. Now, all eligible families

remaining on the waiting list eventually receive shelter. If this procedure were mandated

by statute or regulation, eligible homeless families might well have a constitutionally

protected entitlement to shelter, even though delay between application and shelter

would almost always occur.

22

But D.C. law does not mandate the wait-list system. Like the pre-1994, first-come, first-

served system, the wait-list procedures are informal office policy, WLCH III, 918 F.Supp.

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«

upaOtff4i4ce5

& n. 13, and nothing from again changing

in governing statutes or regulations prohibits the Shelter its allocation procedures. The Shelter Office could return

to

the first-come, first-served daily system; it could give priority to families with infants or

disabled children; or it could select applicant families at random from a rolling eligibility

list. See Appellant's Reply Br. at 13-14. Under the first and third options, some eligible

families--those whose names were not called--would never receive shelter, at least as long

as shelter supplies remain limited. Under the second option, families having neither

infant nor disabled children might or might not receive shelter. As these examples

illustrate, the Shelter Office is free to adopt an allocation system under which not all

eligible families receive emergency shelter. Indeed, the District candidly acknowledges its

"indifferen[ce] to which families, among those eligible for shelter, actually receive it."

Appellant's Br. at 35. Under these circumstances, we hold that eligible homeless families

lack the "legitimate claim of entitlement" necessary to create a constitutionally protected

property right. Roth, 408 U.S. at 577, 92 S.Ct. at 2709.

23

Relying on traditional property law and citing for illustration contingent remainders,

vested remainders subject to defeasance, and executory interests, the dissent argues that

a property right can exist even though eligible families might not receive shelter. Dissent

op. at 227-28. In the realm of real property law, it is certainly true that improbability of

vesting will not defeat a contingent future interest in property. See id. at 227-28 nn.2-4.

The question in this case, however, is not whether eligible families have a legally

enforceable future interest in emergency shelter, but whether they have a constitutionally

enforceable property right to emergency shelter. The common law of real property, where

uncertainty of future vesting merely reduces the value of property, does not answer that

question. Instead, we must look to principles of due process, where the uncertainty of

shelter due to the exercise of administrative discretion prevents the creation of a

constitutionally protected entitlement. The Supreme Court recognized a constitutionally

protected property right in Goldberg because administrators had no discretion in the

allocation of AFDC benefits--all statutorily eligible individuals automatically received

benefits. 397 U.S. at 262, 90 S.Ct. at 1017. By comparison, relying on Olim, 461 U.S. at

249, 103 S.Ct. at 1747-48, we held in Tarpeh-Doe that the regulations at issue there

"fail[ed] to restrict sufficiently the decisionmaker's discretion to generate a protected

[liberty or property] interest implicating the due process clause." 904 F.2d at 723.

24

Pointing to procedures available to eligible families denied shelter, the dissent argues

that the Shelter Office has insufficient discretion to defeat a constitutionally protected

property right. Dissent op. at 228-29. Acting on behalf of its clients, the Clinic regularly

uses those procedures, often successfully, to challenge administrative determinations of

ineligibility. See supra, dissenting op. at p. 228. Such procedures, however, do not restrict

the discretion the City Council has left to administrators to select the method of

allocating scarce shelter space among eligible families, and it is the presence of that

discretion which precludes a finding of an entitlement [323 U.S.App.D.C. 225] to

emergency shelter. That eligible families reaching the top of the wait-list now receive

shelter is of no constitutional significance because the Shelter Office can change its

procedures tomorrow. See White v. Office of Personnel Management, 787 F.2d 660, 666

(D.C.Cir.1986) (disappointed applicant for administrative law judge position had no

property interest in spot at top of selection register; government could change its

procedures without prior notice and hearing). The dissent views this as an "extreme

notion," Dissent at 232, but the notion is not ours. The District has chosen to leave just

this kind of discretion in the hands of its administrators.

25

We agree with the dissent that in certain circumstances property rights may arise from

administrative "rules or understandings." Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Perry v.

Sindermann, 408 U.S. 593, 599-601, 92 S.Ct. 2694, 2698-2700, 33 L.Ed.2d 570 (1972);

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upspereopDeirstsyenritgahtts23w0h-e3r2e.

Equally clearly, however, administrative that result would "contravene the intent

actions may not create of the legislature."

Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). Here, the City Council's intent is

plain: "Nothing in this chapter shall be construed to create an entitlement in any

homeless person or family to emergency shelter...." D.C.Code § 3-206.9(a); see also id. §

3-609 (same). While we doubt that blanket "no-entitlement" disclaimers can by

themselves strip entitlements from individuals in the face of statutes or regulations

unequivocally conferring them, the District's "no-entitlement" disclaimer reinforces our

conclusion that District of Columbia law, by leaving allocation of limited shelter among

eligible families to administrative discretion, creates no constitutionally protected

entitlement to emergency shelter. Moreover, outside the employment context, we have

found no decision of the Supreme Court or of this Circuit holding that administrative

rules or understandings existing wholly apart from legislation or regulations may create a

property interest. We are not surprised by the lack of such decisions. In the absence of

special circumstances neither alleged nor present in this case, such as where reliance on

administrative action creates contractual responsibilities, obligations enforceable against

the public fisc, i.e., entitlements, may arise only from the people acting through their

legislators, not from administrative fiat. See Carducci, 714 F.2d at 176-77.

III

26

We turn next to the district court's ruling invalidating the city's policy allowing

unsolicited advocates to visit the Shelter Office waiting room only during certain hours of

the week. The Clinic does not challenge the district court's finding that the Shelter Office

is a nonpublic forum, nor its ruling sustaining the limit to one unsolicited volunteer at a

time.

27

In a non-public forum, restrictions on First Amendment activity " 'need only be

reasonable.' " United States v. Kokinda, 497 U.S. 720, 730, 110 S.Ct. 3115, 3121-22, 111

L.Ed.2d 571 (1990) (plurality opinion) (emphasis omitted) (quoting Cornelius v. NAACP

Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 808, 105 S.Ct. 3439, 3452, 87 L.Ed.2d

567 (1985)); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct.

948, 955-56, 74 L.Ed.2d 794 (1983). According to the District, limiting unsolicited

advocates' access to the Shelter Office waiting room prevents overcrowding there and

protects vulnerable families from disruptive solicitation by advocates for the homeless.

We think neither rationale supports the policy. Sustained by the district court and

unappealed by the Clinic, the policy limiting unsolicited volunteers to one at a time in the

waiting room completely guards against overcrowding. And unless applicants for shelter

are somehow less vulnerable on Wednesday mornings and Tuesday and Friday

afternoons, we fail to see how barring access during the rest of the week enhances client

protection. If the Shelter Office is so concerned about overcrowding and client

vulnerability, moreover, we do not understand [323 U.S.App.D.C. 226] why it does not

enforce the challenged policy; according to the record, the Office currently allows

unsolicited advocates in the waiting room whenever the Office is open. Appellant's Br. at

28 n.7. Because the District has offered no tenable reasons for restricting access to the

Shelter Office waiting room to only three periods per week, we agree with the district

court that the restriction violates the First Amendment.

28

As an alternative justification for its policy, the District argues that because the

Supreme Court has sustained total bans on financial solicitation in airports and outside

post offices, see International Soc. for Krishna Consciousness, Inc. (ISKCON) v. Lee, 505

U.S. 672, 683-84, 112 S.Ct. 2701, 2708-09, 120 L.Ed.2d 541 (1992); Kokinda, 497 U.S. at

734, 110 S.Ct. at 3123-24, its partial ban on access to the waiting room likewise satisfies

constitutional standards. Although we doubt the validity of this argument--it disregards

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« uptfahme oilbievsi-o-uwsednieffeedrennocteabdedtrweesesnits.oWlichietitnhgermpoanretiyalaonrdtooftfaelr,ilnimg iatsastiisotnasnocentFoirhsotmeless Amendment activity in a nonpublic forum must be reasonable. Kokinda, 497 U.S. at 730, 110 S.Ct. at 3121-22. The District offers no justification at all for a total ban and, as we have held, its reasons for the partial ban are unconvincing.

IV

29

In a footnote to the "Conclusion" section of its brief, the District makes one final

request: that we vacate the district court's declaratory judgment that the city violated

D.C.CODE ANN. § 3-206.3(a), requiring it to "claim federal financial participation to the

extent allowable by law for housing assistance and services," from July 1, 1993, until April

11, 1995. Contrary to FED.R.CIV.P. 28(a)(3) and D.C.CIR. R. 28(a)(1)(B), however, the

District did not include this argument in its statement of issues under review. Appellant's

Br. at 2. Moreover, the District offers only bare-bones arguments to support its request.

Id. at 40-41 n. 10. Appellees responded to the District's footnote with a terse footnote of

their own on the last page of their brief. Appellees' Br. at 38 n.11. The District's reply brief

is silent on the issue. Because the District raises this issue in "such a cursory fashion," we

decline to resolve it. Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 697

(D.C.Cir.1991) (when appellant "content[s] itself with conclusory assertions" and

appellees "d[o] not address the merits of the claim at all," court normally will not address

claim); see also Railway Labor Executives' Ass'n v. United States R.R. Retirement Bd., 749

F.2d 856, 859 n. 6 (D.C.Cir.1984) (declining to resolve issue "on the basis of briefing

which consisted of only three sentences ... and no discussion of the relevant statutory

text, legislative history, or relevant case law").

V

30

We reverse the district court's ruling that District law creates a property interest in

emergency family shelter and remand for further proceedings in accordance with this

opinion. We affirm the district court's conclusion that the policy limiting unsolicited

advocates' access to the Shelter Office waiting room to certain times of the week violates

the First Amendment.

31

So ordered.

WALD, Circuit Judge, dissenting in part:

32

I part from the majority on the issue of whether families eligible for emergency shelter

under the District's laws and regulations have a "property interest" which triggers some

form of procedural protection under the Fifth Amendment Due Process Clause. I agree

with the district court that families who meet the threshold eligibility requirements of the

statute and whose place on the waiting list has been reached are entitled to some

modicum of procedural due process by virtue of the statutory mandate of the program,

and the Shelter Office's policy and practice in the administration of the program. Thus I

respectfully dissent from that [323 U.S.App.D.C. 227] portion of the majority opinion

finding no entitlement worthy of procedural protection.

33

In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the

Supreme Court defined the parameters of Fifth Amendment "property interests" to

incorporate the fundamental tenets of the "ancient institution of property." Id. at 577, 92

S.Ct. at 2709. According to these enduring principles, a person has no "property" interest

in a thing simply because he has an "abstract need or desire for it," or a "unilateral

expectation of it." Id. Rather, he must have a "legitimate claim of entitlement to it," id. at

577, 92 S.Ct. at 2709; a claim based on some "rule[ ] or understanding[ ]" that "secure[s]"

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uptghroeubnednetfhitatfoarstthaetuctleaidmeacnlatrainngdtshuaptppoerotpslheims celeatimingocfeernttaiitnleemliegnibti.liItdy.cTrhituesriiat

is common will receive

a government benefit secures the benefit for those people, just as a blanket of common

law rules secures more traditional forms of private property for individuals. Id. (citing

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). And correlatively

the fact that only those who meet specified criteria are entitled to the benefit does not

mean that due process doesn't enter the picture until eligibility has been conclusively

proved, since this approach would deny the very procedures needed to demonstrate that

a property interest exists in the first place. See id. ("[T]he welfare recipients in Goldberg

v. Kelly ... had not yet shown that they were, in fact, within the statutory terms of

eligibility. But we held that they had a right to a hearing at which they might attempt to

do so."); see also Griffeth v. Detrich, 603 F.2d 118 (9th Cir.1979) (applicants for public

assistance have a property interest in the benefit).1

34

The Roth Court's distinction between "abstract need[s] or desire[s]" or "unilateral

expectation[s]," on the one hand, and "legitimate claim[s] of entitlement" on the other,

mirrors the old common law distinction between "bare expectancies," which are not

recognized as legitimate property, and future interests, which are. See LEWIS M. SIMES

& ALLAN F. SMITH, THE LAW OF FUTURE INTERESTS § 391 (2d ed.1956)

(distinguishing future interests from "bare expectancies"); 1 AMERICAN LAW OF

PROPERTY § 4.1 (A. James Casner ed., 1st ed.1952) (same); see also Gregory S.

Alexander, The Concept of Property in Private and Constitutional Law: The Ideology of

the Scientific Turn in Legal Analysis, 82 COLUM. L.REV. 1545, 1570-71 (1982). The

clearest example of the former is an apparent or presumptive heir who has a "unilateral

expectation" of inheriting; this bare expectancy is like a fish that one hopes to catch, or a

bird in the bush--it is not property. The concept of property exists to "protect those

claims upon which people rely in their daily lives," Roth, 408 U.S. at 577, 92 S.Ct. at 2709,

not to enable people to claim "ownership" of whatever they think they deserve. On the

other hand traditional property law readily acknowledges that, if there is some formal

statement or understanding establishing that a person can expect a benefit in the future

provided that specified contingencies are satisfied, that person does have a property

interest--specifically, a future interest--in the benefit, even if the specified contingencies

may never occur. Although the privilege of possession or enjoyment is deferred for the

holder of a future interest, it is "of the essence" that such an interest "is property which

now exists." See 1 AMERICAN LAW OF PROPERTY § 4.1, at 405. Examples of such future

interests are contingent remainders,2 vested remainders subject to complete

defeasance[323 U.S.App.D.C. 228] ,3 and most executory interests4 where the right of

actual possession is subject to conditions which may or may not occur. See id. Although

the holder of such a future interest may realistically have a smaller probability of ever

gaining possession of the benefit than the holder of a "bare expectancy," the former's

interest receives higher priority in the eyes of the law because unlike the latter's it is not

merely subjective or "unilateral," but the product of a joint agreement with the present

owner.

35

Applying these bedrock principles of property law to the facts of this dispute,5 I find

myself in disagreement with the majority's unequivocal statement that "eligible homeless

families lack the 'legitimate claim of entitlement' necessary to create a constitutionally

protected property right." Majority opinion at 37 (quoting Roth, 408 U.S. at 577, 92 S.Ct.

at 2709) (citation omitted). I believe that under the Family Shelter Act as implemented by

the Shelter Office, eligible homeless families6 have precisely the sort of future interest in

emergency shelter that our legal traditions have long regarded as a legitimate property

interest. The statute and regulations defining the program and specifying the criteria for

eligibility secure the benefit for eligible families, even though they include a contingency

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« upwemhiecrhgeisnncyotshceerlttearintotomoecectutrhienirthneeecdas. eToofpaunrysuinedtihveidaunaalleylsigisibalebiftafmuirltyh--etrh:eIfa,vinaialagbiivlietny of year, the District were to fund the emergency shelter program fully enough to reach all eligible families, then no one suggests that each eligible family would not receive emergency shelter regardless of the degree of discretion accorded to the Shelter Office over the intake procedure. In short, the administering agency does not have discretion to deny emergency shelter to eligible families. If, as is the case now, the amount of shelter available regularly falls short of the need, many statutorily-eligible families must wait until their interests ripen into rights of present possession, just as holders of other future interests wait for specified contingencies to occur such that they may take possession of more traditional forms of property. As with almost any government largesse or "new property," see Goldberg, 397 U.S. at 262 n. 8, 90 S.Ct. at 1017 n. 8, there is the additional understanding that the government may by legislation eliminate the benefit program entirely in the interim. In Goldberg, however, the Supreme Court implicitly held that this inherent power of government to repeal or modify legislative programs does not preclude a potential government benefit from constituting an entitlement [323 U.S.App.D.C. 229] that triggers due process protections while the program is in effect. See Goldberg, 397 U.S. at 262, 90 S.Ct. at 1017 ("[welfare benefits] are a matter of statutory entitlement for persons qualified to receive them.") (citing Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964)).

36

It is extremely important, then, in any due process entitlement analysis to distinguish

between the uncertainty of public shelter stock, which makes the eligible families' interest

in the shelter a contingent future interest, and whatever discretion has been delegated to

the Shelter Office to decide the priority in which individual eligible families will be

assigned available shelter. The majority suggests that the Shelter Office's discretion in

determining the intake priority for eligible families is utterly unconstrained, such that

intake workers may simply choose their favorite eligible family whenever a unit becomes

available. But the majority's premise that the Shelter Office enjoys such "unfettered

discretion," majority opinion at 220, is in fact impossible to reconcile with the regulations

governing the administration of the shelter program. These regulations set out in detail

the eligibility criteria, see D.C. Mun. Regs. tit. 29, § 2502, and specify that these criteria

shall constitute the grounds for the denial of shelter. See id. § 2510.1. Other than those

denied shelter based on the unavailability of housing resulting from funding limitations,

see id. § 2511.2, any applicant family denied shelter is entitled to notice, "both oral[ ] and

in writing," of the reasons for the denial--"including reference to the law or regulations

supporting the action." Id. § 2511.4. The applicant family may request a "Fair Hearing,"

and may include in the request information that may be pertinent to the denial. See id. §

2511.7. At the hearing, the applicant family is entitled to present testimony, witnesses or

other evidence, to cross-examine the District's witnesses, and to be represented by

counsel. See id. § 2511.10. When the hearing examiner issues a decision, she must put it

in writing, being careful to include findings of fact "based exclusively on evidence

presented at the hearing," and conclusions of law supported by appropriate citations. Id.

§ 2511.11. Families that fail to secure a favorable result from the Fair Hearing may appeal

the final adverse decision to the District of Columbia Court of Appeals. See id. § 2513.1.7

If, as the majority postulates, an eligible family that reached the top of the waitlist could

be passed over for the next available unit pursuant to the Shelter Office's inscrutable

whim or "unfettered discretion," this extensive set of procedures would be the cruellest

of shams. If the Shelter Office had no "law or regulations" to cite in support of its decision

to deny them shelter, what earthly purpose would the "Fair Hearing" procedures and

review by the District of Columbia Court of Appeals serve? In short, it is beyond my ken

that the District painstakingly drafted the blueprints for such an intricate [323

U.S.App.D.C. 230] structure of procedural protections built atop the quicksand of

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« up"unfettered discretion."8

37

Even if the Shelter Office does have some degree of discretion to determine what

system of intake priorities it will use, that sort of administrative discretion is

fundamentally and qualitatively different from "unfettered discretion" to determine

whether eligible families will receive shelter regardless of its availability. I do not read the

statute and regulations to accord the Shelter Office any, let alone "unfettered," discretion

of the latter type. Other courts have identified this distinction as relevant in determining

the existence of entitlements to due process procedures. In Eidson v. Pierce, 745 F.2d

453 (7th Cir.1984), the Seventh Circuit ruled that holders of federal housing subsidies

had no property interest in particular private housing units because the owners of those

units had complete discretion to turn away individual subsidy-holders for any reason or

for no reason at all, even when the subsidy-holders had stellar credit and references and

an apartment stood empty. See Eidson, 745 F.2d at 461. The Shelter Office, in our case,

has no such absolute power to turn away eligible applicants. While the Office presumably

could change (and has in fact changed) from a first-come-first-served to a waitlist system,

and perhaps could change again to give priority to different specific characteristics of

needy families, the fact remains that if at any point in time there is an available unit for an

eligible family, the Shelter Office is without authority to turn that family away. See D.C.

Mun. Regs. tit. 29, § 2503 (1992) ("At the time of initial application for ... temporary

family housing services ... the Department shall inform the applicant that he or she is

required to provide documentation of eligibility ... The Department shall verify that an

applicant is homeless ... The Department shall provide an applicant family determined

eligible for temporary family housing a written referral to a designated temporary family

housing facility.").

38

Indeed, Eidson specifically noted the quintessential difference between programs that

distribute scarce benefits according to unfettered discretion and programs whereunder

such benefits are distributed according to preset eligibility criteria. Referring to their

earlier decision in Davis v. Ball Memorial Hospital Ass'n, 640 F.2d 30 (7th Cir.1980), the

Eidson court distinguished the indigent hospital care program at issue in Davis by

observing that "[i]f the patient established facts showing his or her eligibility, and if the

hospital had not yet met its financial obligations for the year, then the patient was

entitled to the benefits" under the hospital's first-come-first-served intake system.

Eidson, 745 F.2d at 462 (emphasis added). Thus "a hearing in Davis could establish

entitlement," while a hearing for subsidy-holders turned away by private landlords could

not. See id. Similarly in our case, if shelter is available and under the existing allocation

system no other eligible applicant family has a higher priority, some form of due process

procedure would have the practical consequence of ensuring that an eligible applicant

family would receive the shelter.

39

The unfortunate reality that the number of eligible families currently exceeds the

number of available shelter units does indeed prevent many eligible families from

receiving shelter, but by itself the improbability that a future interest in property will ever

vest has never turned cognizable property interests into noncognizable "bare

expectations." For example, the holder of a future interest which trails behind a series of

prior life interests may, as a practical matter, have scant chance of ever coming into

possession of the property, but he nonetheless holds a legally recognizable interest in the

property. Similarly, individual eligible families may have little chance of receiving shelter,

but this is essentially a function of the project's limited funding. One need only conjure

up a situation in which available shelter units outnumber eligible applicants to realize

that the Shelter Office's discretionary allocative power is not of the sort that removes the

applicants' [323 U.S.App.D.C. 231] claims from the realm of property interests. See supra

notes 40-41 and accompanying text; see also Eidson, 745 F.2d at 462; cf. Ressler v. Pierce,

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«

up6fr9o2mFa.2rden12t 1s2ub(9stidhyCpirr.o19gr8a2m) (hpaevrseoanpsrwoiptehrintytihnete"rcelasstsinofthinedsiuvibdsuidayls)";

intended to benefit Vandermark v.

Housing Auth. of York, 663 F.2d 436 (3rd Cir.1981) (applicants for housing subsidy

"certificates" have a property interest in the certificates); Baker v. Cincinnati Metro.

Hous. Auth., 675 F.2d 836 (6th Cir.1982) (same).

40

Accordingly, because the interests of eligible families fall squarely within the realm of

interests traditionally recognized under the common law of property, families have a

right to some due process protection in the intake procedure which determines their

eligibility; that right is "triggered" by the nature of the District's shelter program itself,

and by the regulations implementing the program.

41

Furthermore, the Supreme Court recognized in Perry v. Sindermann, 408 U.S. 593, 92

S.Ct. 2694, 33 L.Ed.2d 570 (1972), overruled on other grounds by Rust v. Sullivan, 500

U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), that traditional notions of property do not,

by excluding "mere subjective 'expectanc[ies]'," id., 408 U.S. at 603, 92 S.Ct. at 2700,

preclude individuals from claiming a property interest in a benefit based on the "policies

and practices" of the institution controlling the distribution of the benefit. Id.; see also

Tarpeh-Doe v. United States, 904 F.2d 719, 724 (1990); Sherrill v. Knight, 569 F.2d 124,

131 n. 22 (D.C.Cir.1977). Institutional "policies and practices" that may create procedural

entitlements need not be enshrined in any statute, rule, or regulation; in fact they need

not even be written down. See Perry, 408 U.S. at 602, 92 S.Ct. at 2700 ("[T]here may be

an unwritten 'common law' in a particular university that certain employees shall have

the equivalent of tenure."). But in fact, the Waiting List policy is "written down"; it is

incorporated into a form that the Shelter Office distributes to all applicant families who

have passed a preliminary eligibility determination, that tells them where they are on the

waiting list. See Exhibits Volume 1 at 3065 (form bearing the heading "FAMILY SHELTER

WAITING LIST IDENTIFICATION FORM," with a space for the applicant family's

"Waiting List number"). What a travesty it would be if the Shelter Office could distribute

such Waiting List placements and then blatantly ignore them in handing out shelter to

the most impoverished segment of our community. No one has suggested that such a

practice would comply with the statute and regulations governing the administration of

the shelter program.

42

Nor can I agree that the Shelter Office's current Waitlist Policy is incapable of giving

rise to an entitlement because "the Shelter Office can change its procedures tomorrow."

Majority opinion at 225. The same of course could have been said of the alleged "common

law" tenure system at issue in Perry, which the Court thought might well be entrenched

enough to create reasonable expectations deserving of due process protection.9

Institutional policies or patterns of official action may spawn entitlements while they are

in effect; it is their pervasive penetration into the day-to-day practice of an institution

and the expectations these practices raise in affected constituencies which is

determinative.10

43

[323 U.S.App.D.C. 232] When an alleged property interest is based in an institution's

policy or practice, rather than in a statute or regulation, a claim of entitlement may

sometimes depend on the individual's own status with regard to the relevant policy or

practice. For example, the teacher claiming an entitlement to tenure in Perry premised

his claim both on the "common law" tenure system that he alleged had been followed by

the university and on the fact that he had been teaching in the institution long enough for

his tenure interest to have "vested" under that unwritten system. See Perry, 408 U.S. at

602, 92 S.Ct. at 2700 ("A teacher, like the respondent, who has held his position for a

number of years, might be able to show from the circumstances of this service--and from

other relevant facts--that he has a legitimate claim of entitlement to job tenure.")

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«

up(weamitplihstaspioslaicdydceudr)r.eSnimtlyilianrleyf,feitcmt digohets

be argued that any entitlement created by the not "vest" until a family has reached a certain

status vis-a-vis the waitlist such that specific shelter is available to them if they meet

eligibility requirements. But even if that were true, eligible families would minimally have

a property interest of the Perry variety which "vests" at the point that they reach the top

of the waitlist and a unit becomes available for their occupancy. Because the Shelter

Office's current policy and practice is to conduct a final eligibility determination for a

family only when a unit becomes available and that family is at the top of the waitlist,

seemajority opinion at 222, families that have ascended to that pinnacle and can

demonstrate their eligibility clearly have a "legitimate claim of entitlement" to the

available unit. See Perry, 408 U.S. at 602, 92 S.Ct. at 2700. Indeed the existence of an

appeal procedure to control denials of shelter following such determinations attests to

the District's acknowledgment that such families have a reasonable expectation of

shelter. See D.C. Mun. Regs. tit. 29, § 2511.1 (1992) ("Any applicant ... who is aggrieved by

the Department's decision to deny ... temporary family housing ... has a right to a fair

hearing from the Department's Office of Fair Hearings, except [if the denial is based on

the unavailability of shelter resulting from funding limitations].").11

44

Finally, it is useful to reiterate that the "entitlement" we are debating here is a far cry

from any right to emergency shelter "on demand"; it is nothing more than an interest in

shelter which I find sufficiently substantial to implicate the constitutional requirement of

regularized procedures in the allocation of what shelter is available to eligible families.

The majority seems peculiarly taken with what I regard as an extreme notion--that the

statute and implementing regulations [323 U.S.App.D.C. 233] permit the Shelter Office

on a whim or caprice to disclaim all statements it has made to applicant families

regarding their priority for receiving shelter pursuant to an intake system that has been

in place for months, and perhaps even years, and either announce with no notice or

formal procedure a new "allocation scheme for the day" or just choose their favorite

families to receive the available shelter units. Nothing I can find in the relevant

legislation, regulations, or public statements put out by the Shelter Office suggests the

existence of any such "unfettered discretion." In fact, the regulations mandate the

opposite conclusion, explicitly requiring the Shelter Office to deny shelter only to those

found ineligible under the law or those for whom no shelter is available.

45

Because I believe that families at the head of the waiting list who are found eligible for

emergency shelter have a constitutionally-protected property interest in available shelter

which is deserving of procedural due process protection, I would proceed to the issue of

whether the District's present intake procedures satisfy these strictures.12 On this due

process issue, I respectfully dissent from the majority opinion.

* Circuit Judge Wald would grant the petition
1 After articulating these principles, the Court applied them to deny a professor at a state university any "property" interest in continued employment at the university, because the terms of his appointment specifically provided that his employment would terminate on a fixed date, and made no mention of renewal. Roth, 408 U.S. at 578, 92 S.Ct. at 2709-10
2 Contingent remainders are remainders (future interests in someone other than the transferor or his successor in interest that take effect at the termination of a prior estate) that are subject to some condition precedent other than the termination of all prior estates. See AMERICAN LAW OF PROPERTY §§ 4.25, 4.36. Thus if A conveys property "to B for life, and if C survives B and lives to attain the age of twenty-one, then to C and his heirs," C has a contingent remainder. See id. at § 4.36

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« up

3 Vested remainders subject to complete defeasance are remainders that are vested (i.e., that become a present estate whenever and however the preceding estates terminate) and that are subject to termination on conditions that may occur before, at, or after the termination of the prior estates. See id. § 4.35. If O conveys property "to A for life, remainder to B and his heirs, but if B die without leaving any children him surviving, then to C and his heirs," B has a vested remainder subject to complete defeasance. See id

4 Executory interests are future interests in a transferee that cut off another's vested interest immediately upon the occurrence of a specified condition or event. See id. § 4.53. If A conveys property "to B and his heirs, but if B die without leaving children him surviving, then to C and his heirs," C has an executory interest. See id. § 4.55

5 The majority makes the unsupported assertion that these principles, however forceful they may be "[i]n the realm of real property law," have no place in the inquiry into whether a "property interest" protected by the Constitution exits. Majority opinion at 224. But the Constitution extends due process protection to deprivations of "property," an institution which is, and always has been, defined and given substance by real property law. The Supreme Court recognized this in Roth, explicitly incorporating "the ancient institution of property" into its discussion of the parameters of protected "property" interests. Roth, 408 U.S. at 577, 92 S.Ct. at 2709

6 To be eligible under the applicable statutory and regulatory provisions, families must be homeless, must be willing to pay for shelter if able or to accept vocational training or perform community services in exchange for shelter if unable, must not have occupied emergency family shelter within the previous twelve months, 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 without good cause, or for nonpayment of rent. See majority opinion at 220-21

7 The procedures articulated by these regulations are fundamentally unlike those that this court found insufficiently constraining to create a protected interest in Tarpeh-Doe v. United States, 904 F.2d 719 (D.C.Cir.1990). Cf. majority opinion at 224. In Tarpeh-Doe we reviewed the denial of a claim brought under the Federal Tort Claims Act, which authorized but did not require the heads of federal agencies to adjudicate the relevant claims. See id. at 721-22. The agency had in fact issued regulations providing for the adjudication of such claims, but had incorporated neither substantive criteria nor a requirement of any explanation or statement of reasons for denials--a fact which this court singled out as "[s]ignificant[ ]." Id. at 722. In this case, the regulations require a written decision based on evidence and conclusions of law supported by citations, and specify only the eligibility criteria listed in the statute and regulations as reasons for denial. In rejecting the claim to a protected interest made in Tarpeh-Doe, this court moreover explicitly noted that no evidence regarding the agency's "past practice" in dealing with such claims had been presented, and strongly suggested that such evidence might have required a contrary holding. Id. at 724 ("It bears emphasis that we hold only that the language of the statutes and regulations at issue does not, without more, support the district court's ruling [that a protected interest existed].... It is possible, of course, for a legitimate expectation to arise based upon the consistent practice of a decisional body--even in the absence of express regulatory language or in the face of ostensibly contradictory agency policy statements.") (emphasis in original) (citing Perry, 408 U.S. at 601-03, 92 S.Ct. at 2699-2700). There is, of course, extensive record evidence in this case regarding the Shelter Office's recent "consistent practice" of distributing shelter according to a "waiting list" system

8 Thus I obviously disagree with the majority's assertion that the intake procedures which the Shelter Office institutes exist "wholly apart" from any law or regulation. Majority opinion at 225. Far from being "wholly apart" from the regulations, the implementation of an intake procedure constraining "unfettered discretion" is the linchpin without which these regulations would be rendered completely ineffectual

9 The Court affirmed the appeals court's remand, to give the respondent "an opportunity to prove the legitimacy of his claim of such entitlement in light of 'the policies and practices of the institution.' " Perry, 408 U.S. at 603, 92 S.Ct. at 2700 (citation omitted)

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« up 10 Although the factual scenario in White v. Office of Personnel Management, 787 F.2d 660
(D.C.Cir.1986), was somewhat similar to this case, I do not think the White decision's cursory rejection of a due process claim which the plaintiff raised only in his reply brief bars us from finding a property interest in this case. Cf. majority opinion at 225 (citing White). In White, the plaintiff's last-ditch argument apparently was based on his allegation that the elimination of a selection register on which his name had been entered deprived him of his property interest in his place on the selection register. See White, 787 F.2d at 665 ("In his reply brief and at oral argument, White changed his strategy somewhat and asserted that he had been deprived of a protected property interest. He argues that his spot on the selection register constituted such an interest.") (emphasis added). Here eligible homeless families are not asserting a property interest in their places on the waiting list, but rather a defeasible interest in the shelter itself. As I pointed out earlier, this interest is capable of vesting as long as the allocation system remains in place. No one suggests the agency cannot change that system through regularized procedures, just as OPM did in the White case. But no such system change has taken place here, and the mere possibility that it could does not divest the applicant family at the top of the list of its property interest
11 I do agree with the majority that the statute's disclaimer, "[n]othing in this chapter shall be construed to create an entitlement in any homeless person or family to emergency shelter...." D.C. CODE ANN. § 3-609, does not by itself control the due process determination. See majority opinion at 225. To the extent that this provision could be read as the City Council's attempt to require this court to construe the Fifth Amendment in a particular way, it is of course without effect. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."). Rather, the disclaimer is more naturally read as the District's answer to an applicant family's argument that the failure to provide enough shelter to reach all eligible families violates the terms of the statute. This is the construction that the District itself has placed upon this provision, by implementing it in the form of a regulation stating that "[e]ligibility for temporary housing ... does not entitle a homeless person to shelter...." D.C. Mun. Regs. tit. 29, § 2500.3 (1992). (Because I concede that the statute does not require the District to provide a quantity of shelter sufficient to reach all eligible families, I am certainly not suggesting that eligible families hold an "obligation[ ] enforceable against the public fisc." Majority opinion at 225.) Furthermore, a Perry-type entitlement would not violate the terms of the statutory disclaimer, because such entitlements spring from institutional policies and practices, rather than from the statute alone. The disclaimer only seeks to prevent anything "in th[e] chapter" from being construed as creating an entitlement to shelter
12 In brief, I would affirm the district court's holding that the failure to define criteria establishing which documents are to be considered "reasonably available," and the essentially arbitrary nature of the appeals process, violate the requirements of due process. See Washington Legal Clinic for the Homeless v. Barry, 918 F.Supp. 440, 456-59 (D.D.C.1996)

CC∅ | TRANSFORMED BY PUBLIC.RESOURCE.ORG

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 Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 1 of 25
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:93−cv−00691−JHG

TYPE−E

WASH. LEGAL CLINIC, et al v. BARRY, et al Assigned to: Joyce Hens Green Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff
WASHINGTON LEGAL CLINIC FOR THE HOMELESS, THE

Date Filed: 04/05/1993 Date Terminated: 02/26/1996 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Mark Douglas Wegener HOWREY, LLP 1299 Pennsylvania Avenue, NW Washington , DC 20004 (202) 783−0800 Email: wegenerm@howrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff HOWREY LLP 1299 Pennsylvania Avenue, NW Washington , DC 20004−2420 (202) 383−6593 Fax: (202) 383−6610 Email: cunniffm@howrey.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske BAKER &HOSTETLER, L.L.P. 1050 Connecticut Avenue, NW Suite 1100 Washington , DC 20036 (202) 861−1763 Fax: 202−861−1783 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens FEDERAL TRADE COMMISSION 600 Pennsylvania Avenue, NW Room H−238 Washington , DC 20580 (202) 326−2330 Email: givens@ftc.gov TERMINATED: 09/16/1994

Jill A Tuennerman ADVANCE DIRECTIVES 2000 L Street, NW Suite 200 Washington , DC 20036 (202) 416−1845

Joanne E. Caruso HOWREY, LLP 550 South Hope Street Suite 1100 Los Angeles , CA 90071

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 2 of 25

(213) 892−1800 Fax: (213) 892−2300 Email: carusoj@howrey.com

Katherine Dwyer McManus U.S. GOVERNMENT State Department 7209 Warbler Lane McLean , VA 22101 (202) 647−5613

Plaintiff
FATHER MCKENNA CENTER OF ST. ALOYSIUS CHURCH

represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Joanne E. Caruso (See above for address)

Katherine Dwyer McManus (See above for address)

Plaintiff FRANK TRINITY

represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 3 of 25

Plaintiff LISA GOODE
Plaintiff PATRICIA KENNEDY

Joanne E. Caruso (See above for address)
Katherine Dwyer McManus (See above for address)
represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994
Jill A Tuennerman (See above for address)
Joanne E. Caruso (See above for address)
Katherine Dwyer McManus (See above for address)
represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994
Jill A Tuennerman (See above for address)
Joanne E. Caruso (See above for address)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 4 of 25

Katherine Dwyer McManus (See above for address)

Plaintiff DIANN HAMMER

represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Joanne E. Caruso (See above for address)

Katherine Dwyer McManus (See above for address)

Plaintiff SUNNY KIM

represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Joanne E. Caruso (See above for address)

Katherine Dwyer McManus (See above for address)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 5 of 25

Plaintiff FRANZIN MELTON

represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Joanne E. Caruso (See above for address)

Katherine Dwyer McManus (See above for address)

Plaintiff ANGELINA EASTER

represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Joanne E. Caruso (See above for address)

Katherine Dwyer McManus (See above for address)

Plaintiff TOMIKIO HALL

represented by Mark Douglas Wegener (See above for address)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 6 of 25

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Joanne E. Caruso (See above for address)

Katherine Dwyer McManus (See above for address)

Plaintiff KOYA HARLESTON

represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Joanne E. Caruso (See above for address)

Katherine Dwyer McManus (See above for address)

Plaintiff DEBRA KING

represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 7 of 25

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Joanne E. Caruso (See above for address)

Katherine Dwyer McManus (See above for address)

Plaintiff
TAMMY MONTAGUE Homeless

represented by Mark Douglas Wegener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin F. Cunniff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peder A. Garske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary Lester Ivens (See above for address) TERMINATED: 09/16/1994

Jill A Tuennerman (See above for address)

Joanne E. Caruso (See above for address) ATTORNEY TO BE NOTICED

Katherine Dwyer McManus (See above for address)

V.
Defendant
SHARON PRATT KELLY in her official capacity as Mayor of Washington, District of Columbia TERMINATED: 03/27/1995

represented by Jesse P. Goode DEPARTMENT OF HUMAN SERVICES Office of General Counsel−St. Elizabeths 2700 Martin Luther King Avenue, SE 801 East Building Room 206

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 8 of 25

Washington , DC 20032 (202) 279−6112 TERMINATED: 02/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

George C. Valentine OFFICE OF THE ATTORNEY GENERAL 441 Fourth Street, NW 6th Floor South Washington , DC 20002 (202) 724−6150 ATTORNEY TO BE NOTICED

Defendant
MARION BARRY Jr.

represented by Donna M. Murasky OFFICE OF CORPORATION COUNSEL, D.C. 441 Fourth Street, NW Sixth Floor Washington , DC 20001−4600 (202) 727−6252 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Schwab OFFICE OF CORPORATION COUNSEL, D.C. 441 Fourth Street, NW Room 6S105 Washington , DC 20001−4600 (202) 727−6252 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jesse P. Goode (See above for address) TERMINATED: 02/13/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

George C. Valentine (See above for address)

Date Filed 04/05/1993 04/05/1993 04/05/1993 04/05/1993 04/05/1993 04/06/1993

# Docket Text
1 COMPLAINT filed (ted) (Entered: 04/06/1993)
SUMMONS issued for defendant SHARON PRATT KELLY (ted) (Entered: 04/06/1993)
2 RULE 109 Certificate of disclosure of corporate affiliations and financial interests by plaintiff(s) WASH. LEGAL CLINIC (ted) (Entered: 04/06/1993)
3 REQUEST by plaintiff(s) to defendant SHARON PRATT KELLY for production of documents (ted) (Entered: 04/06/1993)
4 INTERROGATORIES filed by plaintiff(s) to defendant SHARON PRATT KELLY (ted) (Entered: 04/06/1993)
5 ATTORNEY APPEARANCE for all plaintiffs by Gary Lester Ivens (kk) (Entered: 04/07/1993)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 9 of 25

04/06/1993 04/22/1993 04/26/1993 05/10/1993 05/10/1993
05/12/1993
05/12/1993 05/13/1993 05/20/1993 05/21/1993 05/24/1993 06/03/1993 06/07/1993
06/08/1993 06/09/1993 06/09/1993 06/10/1993
06/15/1993

6 NOTICE by plaintiffs of current address for counsel Gary Lester Ivens and Mark Douglas Wegener: HOWREY &SIMON, 1299 Pennsylvania Avenue, N.W., Washington, DC 20004, (202) 783−0800. (kk) (Entered: 04/07/1993)
7 MOTION filed by defendant SHARON PRATT KELLY to extend time to 5/10/93 to answer the complaint , or to extend time to 5/10/93 to file a dispositive motion (kk) (Entered: 04/23/1993)
8 ORDER by Judge Joyce H. Green : granting motion to extend time to 5/10/93 to file a dispositive motion [7−2] by PRATT KELLY; answer due 5/10/93 (N) (jaw) (Entered: 04/27/1993)
9 MOTION filed by defendant SHARON PRATT KELLY for a stay of all proceedings, including discovery, pending a ruling on defendant's motion to dismiss (kk) (Entered: 05/11/1993)
10 MOTION filed by defendant SHARON PRATT KELLY for leave to file a memorandum of points and authorities in support of defendant's motion to dismiss in excess of the page limitation ; EXHIBIT (DEFENDANT'S MOTION TO DISMISS) (kk) (Entered: 05/11/1993)
11 ORDER by Judge Joyce H. Green : granting motion for leave to file a memorandum of points and authorities in support defendant's motion to dismiss in excess of the page limitation [10−1] by SHARON PRATT KELLY (N) (jaw) (Entered: 05/12/1993)
12 MOTION filed by defendant SHARON PRATT KELLY to dismiss ; Attachment (kk) (Entered: 05/13/1993)
13 RETURN OF SERVICE of summons and complaint executed upon defendant SHARON PRATT KELLY (received by Greg Holmes, Assistant to Mayor) on 4/5/93 by process server (kk) (Entered: 05/13/1993)
14 MOTION filed by plaintiff to extend time to 6/8/93 to respond to defendant's motion to dismiss (kk) (Entered: 05/21/1993)
15 ORDER by Judge Joyce H. Green : granting motion to extend time to 6/8/93 to respond to defendant's motion to dismiss [14−1] by plaintiff(s); response to motion by pltf. to motion of deft. to dismiss due by 6/8/93 ; (N) (jaw) (Entered: 05/21/1993)
16 MEMORANDUM by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY for a stay of all proceedings, including discovery, pending a ruling on defendant's motion to dismiss [9−1]; Exhibits (2) (kk) (Entered: 05/25/1993)
17 UNOPPOSED MOTION filed by defendant SHARON PRATT KELLY to extend time to 6/10/93 to reply to plaintiffs' opposition to defendant's motion to stay all proceedings (kk) (Entered: 06/04/1993)
18 ORDER by Judge Joyce H. Green : granting motion to extend time to 6/10/93 to reply to plaintiffs' opposition to defendant's motion to stay all proceedings [17−1] by SHARON PRATT KELLY; reply by deft. to opposition of pltf. to motion of deft. to stay all proceedings due by 6/10/93 (N) (jaw) (Entered: 06/08/1993)
19 RESPONSE by plaintiffs in opposition to motion to dismiss [12−1] by defendant SHARON PRATT KELLY; Exhibit (kk) (Entered: 06/08/1993)
20 ATTORNEY APPEARANCE for plaintiffs by Jill A. Tuennerman (kk) (Entered: 06/10/1993)
21 ATTORNEY APPEARANCE for plaintiffs by Katherine Dwyer McManus (kk) (Entered: 06/10/1993)
22 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's motion for a stay of all proceedings, including discovery, pending a ruling on defendant's motion to dismiss [9−1]; Exhibit (kk) (Entered: 06/11/1993)
23 MOTION filed by defendant SHARON PRATT KELLY to extend time to 6/22/93 to reply to plaintiffs' opposition to defendant's motion to dismiss (kk) (Entered: 06/15/1993)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 10 of 25

06/16/1993
06/17/1993
06/17/1993 06/22/1993 06/30/1993
07/01/1993 07/06/1993 07/13/1993 07/14/1993 07/16/1993 07/16/1993 07/19/1993 07/20/1993
07/20/1993 07/22/1993 07/22/1993 07/26/1993 07/27/1993

24 ORDER by Judge Joyce H. Green : denying motion for a stay of all proceedings, including discovery, pending a ruling defendant's motion to dismiss [9−1] by SHARON PRATT KELLY; and deft. to respond to all of pltfs' outstanding discovery reqests within 20−days of the date of this order (N) (jaw) (Entered: 06/16/1993)
25 ORDER by Judge Joyce H. Green : granting motion to extend time to 6/22/93 to reply to plaintiffs' opposition to defendant's motion to dismiss [23−1] by SHARON PRATT KELLY; response to dispositive motions due by 6/22/93 ; (N) (jaw) (Entered: 06/17/1993)
26 RESPONSE by plaintiffs in opposition to defendant's motion to extend time to 6/22/93 to reply to plaintiffs' opposition to defendant's motion to dismiss [23−1] (kk) (Entered: 06/17/1993)
27 REPLY by defendant SHARON PRATT KELLY to response to motion to dismiss [12−1] by SHARON PRATT KELLY (sm) (Entered: 06/23/1993)
28 MOTION filed by plaintiffs WASH. LEGAL CLINIC, FATHER MCKENNA CTR., FRANZIN MELTON, ANGELINA EASTER, TOMIKIO HALL, KOYA HARLESTON, DEBRA KING and TAMMY MONTAGUE for class certification ; Exhibits (2) (kk) (Entered: 07/01/1993)
29 MOTION filed by plaintiffs for preliminary injunction ; Exhibits (10), Attachments (11) (kk) (Entered: 07/02/1993)
30 ORDER by Judge Joyce H. Green : response by deft. to motion of pltf. for preliminary injunction due 7/14/93 ; reply to motion due 7/16/93 ; motion hearing set for 1:30 7/20/93 (20−minutes per side) (N) (jaw) (Entered: 07/06/1993)
31 RESPONSE by defendant SHARON PRATT KELLY to plaintiffs' motion for class certification [28−1] (kk) (Entered: 07/14/1993)
32 RESPONSE by defendant SHARON PRATT KELLY in opposition to motion for preliminary injunction [29−1] by plaintiffs; Exhibits (4) (kk) (Entered: 07/15/1993)
33 REPLY by plaintiffs in support of their motion for a preliminary injunction [29−1]; Exhibits (2), Attachments (3) (kk) (Entered: 07/20/1993)
34 MOTION filed by defendant SHARON PRATT KELLY to extend time to 7/19/93 to respond to plaintiffs' discovery (kk) (Entered: 07/20/1993)
35 SUPPLEMENTAL MEMORANDUM by defendant SHARON PRATT KELLY in support of her opposition to plaintiffs' motion for a preliminary injunction; Exhibit (kk) (Entered: 07/20/1993)
MOTION HEARING before Judge Joyce H. Green by plaintiff(s) motion for preliminary [29−1] taken under advisement; dispositive motions due 7/27/93 ; response to dispositive motions due 8/16/93 ; reply to dispositive motions due 8/27/93 ; Reporter: Gordon Slodysko (jaw) (Entered: 07/20/1993)
36 SUPPLEMENTAL REPLY by plaintiffs in support of their motion for a preliminary injunction [29−1] (kk) (Entered: 07/21/1993)
37 ORDER by Judge Joyce H. Green : For non−filing of discovery and directing discovery materials shall not be filed except by leave of court (N) (jaw) (Entered: 07/22/1993)
38 NOTICE OF FILING by defendant SHARON PRATT KELLY of legislative history of DC Code Sec. 3−206.1 et seq. and Sec. 3−601 et seq., pursuant to Court's request; Attachment (kk) (Entered: 07/22/1993)
39 NOTICE OF FILING by plaintiffs of supplemental affidavit of Tony Russo; Exhibit (kk) (Entered: 07/27/1993)
40 MOTION filed by defendant SHARON PRATT KELLY for leave to file a supplemental memorandum in support of defendant's motion to dismiss, in excess of 45 pages ; EXHIBIT (DEFENDANT MAYOR KELLY'S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS)(kk) Modified on 07/28/1993 (Entered: 07/28/1993)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 11 of 25

07/28/1993 07/28/1993 07/29/1993 07/30/1993 08/11/1993 08/12/1993 08/13/1993 08/16/1993 08/19/1993 08/19/1993
08/19/1993
08/27/1993
08/31/1993 09/01/1993
09/01/1993 09/08/1993 09/16/1993
09/16/1993

41 RESPONSE by defendant SHARON PRATT KELLY to plaintiffs' submission of supplemental affidavit of Tony Russo [39−1] (kk) (Entered: 07/29/1993)
42 NOTICE OF FILING by plaintiffs of supplemental legislative history; Exhibit (kk) (Entered: 07/29/1993)
43 FIRST AMENDED COMPLAINT by plaintiffs for Declaratory, Injunctive and Mandatory relief; amending complaint [1−1] (kk) (Entered: 07/30/1993)
44 MEMORANDUM OPINION AND ORDER by Judge Joyce H. Green : finding motion for preliminary injunction by plaintiff(s) [29−1] moot; and directing deft. to timely answer the amended complaint. (N) (jaw) (Entered: 07/30/1993)
45 MOTION filed by plaintiffs for leave to file a memorandum of points and authorities in support of their opposition to defendant's motion to dismiss in excess of the 45 page limitation (kk) (Entered: 08/12/1993)
46 TRANSCRIPT of hearing on motion for preliminary injunction before Judge Joyce Green filed for date of 7/20/93. Reporter: G. Slodysko (kk) (Entered: 08/12/1993)
47 MOTION filed by defendant SHARON PRATT KELLY to extend time to 8/27/93 to answer plaintiffs' amended complaint (kk) (Entered: 08/16/1993)
48 RESPONSE by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY to dismiss [12−1]; Exhibit (kk) (Entered: 08/17/1993)
49 RESPONSE by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY to extend time to 8/27/93 to answer plaintiffs' amended complaint [47−1] (kk) (Entered: 08/19/1993)
50 ORDER by Judge Joyce H. Green : granting motion by defendant SHARON PRATT KELLY to extend time to 8/27/93 to answer plaintiffs' amended complaint [47−1]; defendant's answer to plaintiffs' amended complaint due 8/27/93 (N) (kk) (Entered: 08/19/1993)
51 ORDER by Judge Joyce H. Green : granting plaintiffs' motion for leave to file a memorandum of points and authorities in support their opposition to defendant's motion to dismiss in excess of the 45 page limitation [45−1] (N) (kk) (Entered: 08/19/1993)
52 MOTION filed by defendant SHARON PRATT KELLY for leave to file a memorandum in support of defendant's motion to dismiss the first amended complaint in excess of the 45 page limitation ; EXHIBIT (DEFENDANT KELLY'S MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT) (kk) Modified on 08/30/1993 (Entered: 08/30/1993)
53 REPLY by defendant SHARON PRATT KELLY to plaintiffs' opposition to defendant's supplemental memorandum in support of defendant's motion to dismiss [48−1] (kk) (Entered: 09/01/1993)
54 ORDER by Judge Charles R. Richey : granting motion by defendant SHARON PRATT KELLY for leave to file a memorandum in support of defendant's motion to dismiss the first amended complaint in excess of the 45 page limitation [52−1] (N) (kk) (Entered: 09/01/1993)
55 MOTION filed by defendant SHARON PRATT KELLY to dismiss plaintiffs' first amended complaint ; Exhibits (7) (kk) (Entered: 09/01/1993)
56 MOTION filed by plaintiff(s) for leave to file excess pages limitation for memorandum in opposition to motion to dismiss the first amended complaint (sm) (Entered: 09/09/1993)
57 ORDER by Judge Joyce H. Green : granting motion for leave to file excess pages limitation for memorandum in to motion to dismiss the first amended complaint [56−1] by plaintiff(s); and directing that in the future, both parties must confine their arguments to 45−pages. (N) (jaw) (Entered: 09/17/1993)
59 RESPONSE by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY to dismiss plaintiffs' first amended complaint [55−1]; Exhibit (kk) (Entered: 09/21/1993)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 12 of 25

09/20/1993 09/24/1993 09/30/1993 10/01/1993 10/04/1993
10/04/1993
10/12/1993 10/15/1993 10/19/1993 10/19/1993 10/22/1993 10/22/1993 10/25/1993 10/26/1993 10/29/1993 10/29/1993 10/29/1993 11/01/1993

58 MOTION filed by defendant SHARON PRATT KELLY to extend time to 9/30/93 to reply to plaintiffs' opposition to defendant's motion to dismiss the first amended complaint (kk) (Entered: 09/21/1993)
CASE REFERRED to Mag. Judge Deborah A. Robinson for discovery (mbd) (Entered: 09/24/1993)
60 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's motion to dismiss plaintiffs' first amended complaint [55−1]; Exhibits (2) (kk) (Entered: 09/30/1993)
61 NOTICE OF FILING by plaintiffs of additional authority in support of their opposition to defendant's motion to dismiss plaintiffs' first amended complaint [59−1]; Exhibit (kk) Modified on 10/04/1993 (Entered: 10/04/1993)
62 ORDER by Judge Joyce H. Green : granting motion by defendant SHARON PRATT KELLY to extend time, nunc pro tunc, to 9/30/93 to reply to plaintiffs' opposition to defendant's motion to dismiss the first amended complaint [58−1]; defendant's reply to plaintiffs' opposition to defendant's motion to dismiss the first amended complaint due 9/30/93 (N) (kk) (Entered: 10/04/1993)
63 NOTICE OF FILING by plaintiffs of additional authority (Civil No. 90−262−P−C, "Albiston v. Commissioner, Maine Department of Human Services") in support of their opposition to defendant's motion to dismiss plaintiffs' first amended complaint; Exhibit (kk) (Entered: 10/04/1993)
64 MOTION filed by plaintiff(s) to compel the production of documents and answers to interrogatories ; Exhibits (6) (sm) (Entered: 10/13/1993)
65 MOTION filed by defendant SHARON PRATT KELLY for protective order to preclude plaintiffs from taking the deposition of Vincent C. Gray ; Attachment (sm) (Entered: 10/15/1993)
66 MOTION filed by plaintiffs for leave to videotape depositions and REQUEST for expedited consideration (kk) (Entered: 10/19/1993)
67 MOTION filed by plaintiffs for leave to file a surreply ; EXHIBIT (PLAINTIFF'S SURREPLY IN RESPONSE TO THE DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS) (kk) (Entered: 10/19/1993)
68 ORDER by Judge Joyce H. Green : granting motion for leave to file a surreply [67−1] by plaintiffs (N) (jaw) (Entered: 10/22/1993)
69 SURREPLY by plaintiffs in response to reply by defendant SHARON PRATT KELLY in support of her motion to dismiss plaintiffs' first amended complaint [60−1]; Exhibit (kk) Modified on 10/25/1993 (Entered: 10/25/1993)
70 PRELIMINARY RESPONSE by defendant SHARON PRATT KELLY to plaintiffs' motion for leave to videotape depositions [66−1] and request for expedited consideration (kk) (Entered: 10/26/1993)
71 MOTION filed by defendant SHARON PRATT KELLY to extend time to 11/12/93 to oppose plaintiffs' motion to compel (kk) (Entered: 10/27/1993)
72 MOTION filed by defendant SHARON PRATT KELLY to extend time to 10/3/93 to file an opposition to plaintiffs' motion for leave to videotape depositions (kk) (Entered: 11/01/1993)
73 RESPONSE by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY for protective order to preclude plaintiffs from taking the deposition of Vincent C. Gray [65−1]; Exhibit (kk) Modified on 11/01/1993 (Entered: 11/01/1993)
74 NOTICE OF FILING by plaintiffs of an Eighth Circuit Court of Appeals decision in support of plaintiffs' opposition to defendant's motion to dismiss the first amended complaint [55−1]; Exhibit (kk) (Entered: 11/01/1993)
75 ERRATUM by defendant SHARON PRATT KELLY noting incorrect extension date of 10/3/93 in defendant's motion for extension of time to oppose plaintiffs' motion for leave to videotape depositions [72−1], filed 10/29/93 (kk) Modified on 11/02/1993 (Entered: 11/02/1993)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 13 of 25

11/03/1993 11/04/1993 11/08/1993 11/10/1993 11/10/1993 11/10/1993 11/10/1993 11/12/1993 11/12/1993 11/15/1993 11/17/1993
11/18/1993 11/18/1993 11/19/1993 11/19/1993 11/24/1993 11/29/1993 11/29/1993 11/29/1993

76 MOTION filed by defendant SHARON PRATT KELLY to extend time to 11/4/93 to oppose plaintiffs' motion for leave to videotape depositions and for expedited consideration (kk) (Entered: 11/04/1993)
77 RESPONSE by defendant SHARON PRATT KELLY in opposition to plaintiffs' motion for leave to videotape depositions [66−1] and request for expedited consideration (kk) (Entered: 11/05/1993)
78 SURRESPONSE by defendant SHARON PRATT KELLY to plaintiffs' surreply to defendant's reply in support of defendant's motion to dismiss plaintiffs' first amended complaint [69−1]; Attachment (kk) (Entered: 11/09/1993)
79 MOTION filed by plaintiff(s) for order regarding the deposition of Ms. Helen Keys , and for expedited consideration ; Exhibits (19) (sm) (Entered: 11/12/1993)
80 MOTION filed by defendant SHARON PRATT KELLY to extend time to 11/19/93 to reply to opposition to motion for protective order to preclude plaintiffs from taking the deposition of Vincent C. Gray (sm) (Entered: 11/12/1993)
81 MOTION filed by defendant SHARON PRATT KELLY for entry of protective order ; Attachment (Stipulation) (sm) (Entered: 11/12/1993)
85 ORDER by Mag. Judge Deborah A. Robinson : granting motion to extend time to 11/12/93 to oppose plaintiffs' motion to compel [71−1] by SHARON PRATT KELLY response to motion(s) due by 11/15/93 ; (N) (bh) (Entered: 11/17/1993)
82 REPLY by plaintiff(s) to response to motion for leave to videotape depositions [66−1] by plaintiff(s) (sm) (Entered: 11/12/1993)
83 RESPONSE by defendant SHARON PRATT KELLY in opposition to plaintiffs' motion to compel the production of documents and answers to interrogatories [64−1]; Exhibits (2) (kk) (Entered: 11/15/1993)
84 SUPPLEMENTAL OPPOSITION by defendant SHARON PRATT KELLY to plaintiffs' motion to compel the production of documents and answers to interrogatories [64−1]; Attachments (kk) (Entered: 11/16/1993)
86 RESPONSE by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY to extend time to 11/19/93 to reply to plaintiffs' opposition to defendant's motion for protective order to preclude plaintiffs from taking the deposition of Vincent C. Gray [80−1] (kk) (Entered: 11/18/1993)
87 PROTECTIVE ORDER (consent) by Mag. Judge Deborah A. Robinson setting forth procedures for handling confidential material; allowing designated material to be filed under seal (N) (bh) (Entered: 11/18/1993)
SCHEDULING NOTICE: discovery status hearing set for 11:00 11/30/93 before Mag. Judge Robinson ; (bh) (Entered: 11/22/1993)
88 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's motion for protective order to preclude plaintiffs from taking the deposition of Vincent C. Gray [65−1]; Exhibit (kk) (Entered: 11/22/1993)
89 MOTION filed by plaintiffs for leave to file reply by 11/26/93 to defendant's opposition to plaintiffs' motion to compel production of documents and answers to interrogatories [83−1] (kk) (Entered: 11/22/1993)
90 REPLY by plaintiffs to response by defendant in opposition to plaintiffs' motion to compel the production of documents and answers to interrogatories [64−1]; Exhibits (9) (kk) (Entered: 11/26/1993)
91 EMERGENCY CONSENT MOTION filed by defendant SHARON PRATT KELLY to continue the discovery status conference (kk) (Entered: 11/30/1993)
95 ORDER by Mag. Judge Deborah A. Robinson : granting motion to continue the discovery status conference to 12/2/93, 11:30 a.m. [91−1] by SHARON PRATT KELLY (N) (bh) (Entered: 12/08/1993)
96 ORDER by Mag. Judge Deborah A. Robinson : granting motion for leave to file reply by 11/26/93 to defendant's opposition to plaintiffs' motion to compel production

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 14 of 25

12/01/1993 12/01/1993 12/02/1993 12/03/1993 12/10/1993
12/14/1993 12/17/1993 12/20/1993 12/21/1993 12/23/1993 01/07/1994 01/11/1994
01/21/1994 01/24/1994 01/24/1994

of documents and answers to interrogatories [83−1] [89−1] by plaintiff(s) (N) (bh) (Entered: 12/08/1993)
92 SECOND SUPPLEMENTAL RESPONSE by defendant SHARON PRATT KELLY in opposition to plaintiffs' motion to compel the production of documents and answers to interrogatories [64−1] (kk) (Entered: 12/02/1993)
93 SUPPLEMENTAL MEMORANDUM by defendant SHARON PRATT KELLY in support of her motion to dismiss plaintiffs' first amended complaint [55−1]; Exhibit (kk) (Entered: 12/02/1993)
DISCOVERY STATUS HEARING before Mag. Judge Deborah A. Robinson : Reporter: ERO (bh) (Entered: 12/08/1993)
94 NOTICE by plaintiff(s) of withdrawal of motion for an order regarding the deposition of Ms. Helen Keys; Exhibits (1) "Let this be filed" ROBINSON, D., MAG. J. (sm) Modified on 12/06/1993 (Entered: 12/06/1993)
97 ORDER by Mag. Judge Deborah A. Robinson : granting motion for entry of protective order [81−1] by SHARON PRATT KELLY, granting motion for leave to videotape depositions [66−1] by plaintiff(s) , granting in part, denying in part motion to compel the production of documents and answers to interrogatories [64−1]; denying motion of plaintiffs for costs;directing defendants to produce or make available for inspection by 12/17/93 certain documents. (N) (mon) (Entered: 12/10/1993)
98 MOTION filed by plaintiffs for reconsideration by Magistrate Judge Robinson of part of the 12/10/93 Order [97−1] and for expedited consideration of the motion for reconsideration ; Exhibit (kk) Modified on 12/15/1993 (Entered: 12/15/1993)
99 RESPONSE by defendant SHARON PRATT KELLY in opposition to motion for reconsideration by Magistrate Judge Robinson of part of the 12/10/93 Order [97−1] [98−1] by plaintiff(s), motion for expedited of the motion for reconsideration [98−2] by plaintiff(s) (sm) (Entered: 12/17/1993)
100 ORDER by Mag. Judge Deborah A. Robinson : denying motion for reconsideration by Magistrate Judge Robinson of part of the 12/10/93 Order [97−1] [98−1] by plaintiff(s)ssssssssssss (N) (bh) (Entered: 12/20/1993)
101 NOTICE OF FILING by plaintiffs of first request to defendant SHARON PRATT KELLY for entry and inspection of premises (kk) (Entered: 12/22/1993)
102 ATTORNEY APPEARANCE for plaintiff(s) by Joanne E. Caruso (sm) (Entered: 12/27/1993)
103 MOTION filed by defendant SHARON PRATT KELLY to extend discovery to 3/1/94 (sm) (Entered: 01/10/1994)
104 MODIFIED NOTICE TO TAKE DEPOSITION of Tommy Montague on 1/19/94 at 9:30 A.M., Debra King on n1/19/94 at 1:30 P.M., Koya Harleston on 1/24/94 at 9:30 A.M., Tomikio Hall on 1/24/94 at 1:30 P.M., Angelina Easter on 1/28/94 at 9:30 A.M., Franzin Melton on 1/28/94 at 1:30 P.M., Sunny Kim on 1/31/94 at 9:30 A.M., Diann Hammer on 1/31/94 at 9;30 A.M., Father McKenna Center on 2/11/94 at 9:30 A.M., Lisa Goode on 2/11/94 at 1:30 P.M., Frank Trinity on 2/15/94 at 9:30 A.M., Washington Legal Clinic on 2/15/94 at 1:30 P.M., Patricia Kennedy on 2/17/94 at 9:30 A.M. by defendant SHARON PRATT KELLY . (mlp) (Entered: 01/13/1994)
105 NOTICE OF FILING by plaintiffs of additional authority in opposition to defendant's motion to dismiss the first amended complaint [55−1]; Attachment (kk) Modified on 01/24/1994 (Entered: 01/24/1994)
106 ORDER by Judge Joyce H. Green : granting motion to extend discovery to 3/1/94 [103−1] by SHARON PRATT KELLY; discovery extended to 3/1/94 ; (N) (jaw) (Entered: 01/25/1994)
107 MOTION filed by defendant SHARON PRATT KELLY to extend time nunc pro tunc to 1/28/94 to respond to plaintiffs' second set of interrogatories, second request for production of documents and request for admissions (kk) (Entered: 01/25/1994)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 15 of 25

01/31/1994
02/03/1994
02/08/1994 02/10/1994
02/14/1994 02/18/1994 02/18/1994 02/22/1994 02/22/1994 02/22/1994 02/22/1994 02/22/1994
02/22/1994 02/23/1994 02/24/1994 02/25/1994
02/28/1994

108 NOTICE OF CHANGE OF ADDRESS by Jesse P. Goode representing defendant SHARON PRATT KELLY. New address: DEPARTMENT OF HUMAN SERVICES, 2700 Martin Luther King Avenue, S.E., 801 East Building, Suite 2000, Washington, DC 20024, (202) 279−6117. (kk) (Entered: 01/31/1994)
120 ORDER by Mag. Judge Deborah A. Robinson : granting motion to extend time nunc pro tunc to 1/28/94 to respond to plaintiffs' second set of interrogatories, second request for production of documents and request for admissions [107−1] by SHARON PRATT KELLY (N) (bh) (Entered: 02/24/1994)
109 EMERGENCY MOTION filed by defendant SHARON PRATT KELLY to quash subpoenas and for a protective order (kk) (Entered: 02/09/1994)
110 EMERGENCY MOTION filed by defendant SHARON PRATT KELLY for protective order regarding pending depositions of plaintiff LISA GOODE, plaintiff FRANK TRINITY and the corporate plaintiffs ; Exhibits (5) (kk) (Entered: 02/14/1994)
111 MOTION filed by defendant SHARON PRATT KELLY for a protective order governing the copying of plaintiffs' documents (kk) (Entered: 02/15/1994)
112 CONSENT MOTION filed by plaintiffs for entry of protective order ; Stipulation (kk) (Entered: 02/22/1994)
122 PROTECTIVE ORDER (consented to) by Mag. Judge Deborah A. Robinson setting forth procedures for handling confidential material; allowing designated material to be filed under seal (N) (mlp) (Entered: 02/25/1994)
113 REQUEST by plaintiffs for status conference to set trial date (kk) (Entered: 02/23/1994)
114 NOTICE OF FILING by plaintiffs regarding change in proposed class representatives (kk) (Entered: 02/23/1994)
115 EMERGENCY MOTION filed by defendant SHARON PRATT KELLY for protective order regarding deposition of Pamela Shaw and the District's Rule 30(B)(6) designee ; Exhibits (4) (kk) (Entered: 02/23/1994)
116 RESPONSE by plaintiffs in opposition to defendant SHARON PRATT KELLY'S motion for a protective order governing the copying of plaintiffs' documents [111−1] (kk) (Entered: 02/23/1994)
117 RESPONSE by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY for protective order regarding pending depositions of plaintiff LISA GOODE, plaintiff FRANK TRINITY and the corporate plaintiffs [110−1]; Exhibits (7) (kk) (Entered: 02/23/1994)
118 RESPONSE by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY to quash subpoenas [109−1] and for a protective order [109−2]; Exhibits (4) (kk) (Entered: 02/23/1994)
119 CONSENT PROTECTIVE ORDER by Judge Joyce H. Green setting forth procedures for handling confidential material; allowing designated material to be filed under seal (N) (jaw) (Entered: 02/24/1994)
121 MOTION filed by defendant SHARON PRATT KELLY to quash subpoena and for a protective order regarding deposition of Helen Keys ; Exhibits (4) (kk) (Entered: 02/25/1994)
123 MOTION filed by defendant SHARON PRATT KELLY to compel plaintiffs' supplemental responses to defendant's interrogatories and request for production of documents, plaintiffs' appearance for their depositions and plaintiffs' submission of an index identifying all documents withheld or redacted and the basis for withholding said information ; Exhibits (5) (kk) (Entered: 02/28/1994)
124 MOTION filed by defendant SHARON PRATT KELLY to extend the deadline from 3/1/94 to 4/15/94 for the parties to conclude discovery (kk) (Entered: 02/28/1994)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 16 of 25

02/28/1994 02/28/1994 03/01/1994
03/01/1994 03/02/1994
03/02/1994 03/03/1994 03/04/1994
03/07/1994 03/08/1994 03/08/1994 03/11/1994 03/14/1994 03/16/1994 03/16/1994
03/17/1994

125 REQUEST by defendant SHARON PRATT KELLY for a discovery status conference (kk) (Entered: 02/28/1994)
126 RESPONSE by defendant SHARON PRATT KELLY to plaintiffs' request for status conference to set trial date [113−1] (kk) (Entered: 02/28/1994)
127 MOTION filed by defendant SHARON PRATT KELLY to extend time to 3/4/94 to file a reply to plaintiffs' opposition to defendant's motion for a protective order regarding the depositions of LISA GOODE, FRANK TRINITY and the Corporate Plaintiffs and for a protective order governing the copying of plaintiffs' documents (kk) (Entered: 03/02/1994)
128 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's emergency motion to quash subpoenas [109−1] and for a protective order [109−2] (kk) (Entered: 03/02/1994)
129 ORDER by Mag. Judge Deborah A. Robinson : granting motion to extend time to 3/4/94 to file a reply to plaintiffs' opposition to defendant's motion for a protective order regarding the depositions of LISA GOODE, FRANK TRINITY and the Corporate Plaintiffs and for a protective order governing the copying of plaintiffs' documents [127−1] by SHARON PRATT KELLY (N) (bh) (Entered: 03/02/1994)
130 MOTION filed by plaintiffs for sanctions for failure to cooperate in discovery ; Exhibit (kk) (Entered: 03/03/1994)
131 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's motion for a protective order governing the copying of plaintiffs' documents [111−1]; Attachment (kk) (Entered: 03/03/1994)
132 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendants' motion for protective order regarding pending depositions of plaintiff LISA GOODE, plaintiff FRANK TRINITY and the corporate plaintiffs [110−1] (kk) (Entered: 03/07/1994)
133 MOTION filed by plaintiffs to extend time to 3/16/94 to respond to defendant's motion to compel (kk) (Entered: 03/07/1994)
134 RESPONSE by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY to quash subpoena [121−1] and for a protective order regarding the deposition of Helen Keys [121−2] (kk) (Entered: 03/09/1994)
135 RESPONSE by plaintiffs in opposition to motion by defendant SHARON PRATT KELLY for protective order regarding deposition of Pamela Shaw and the District's Rule 30(B)(6) designee [115−1]; Exhibits (2) (kk) (Entered: 03/09/1994)
136 ORDER by Judge Joyce H. Green : denying motion for a discovery status conference [125−1] by SHARON PRATT KELLY; vacating this Court's protective order signed 2/23/94 (N) (jaw) (Entered: 03/11/1994)
137 ORDER by Mag. Judge Deborah A. Robinson: granting motion to extend time to 3/16/94 to respond to defendant's motion to compel [133−1] by plaintiffs. (N) (mlp) (Entered: 03/16/1994)
138 RESPONSE by defendant SHARON PRATT KELLY in opposition to plaintiffs' motion for sanctions for failure to cooperate in discovery [130−1] (kk) (Entered: 03/17/1994)
139 RESPONSE by plaintiffs in opposition to defendant's motion to compel plaintiffs' supplemental responses to defendant's interrogatories and request for production of documents, plaintiffs' appearance for their depositions and plaintiffs' submission of an index identifying all documents withheld or redacted and the basis for withholding said information [123−1]; Exhibits (8) (kk) (Entered: 03/17/1994)
140 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's emergency motion for protective order regarding deposition of Pamela Shaw and the District's Rule 30(B)(6) corporate designee [115−1] and to defendant's motion to quash subpoena [121−1] and for a protective order regarding deposition of Helen Keys [121−2] (kk) (Entered: 03/18/1994)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 17 of 25

03/24/1994 03/25/1994 03/28/1994 03/28/1994 03/29/1994
03/31/1994 04/01/1994
04/01/1994
04/01/1994 04/04/1994 04/05/1994 04/07/1994 04/14/1994

141 ORDER by Mag. Judge Deborah A. Robinson : granting motion to extend the deadline from 3/1/94 to 4/15/94 for the parties to conclude discovery [124−1] by SHARON PRATT KELLY (N) (bh) (Entered: 03/24/1994)
142 RESPONSE by plaintiffs in opposition to defendant's motion to extend the deadline from 3/1/94 to 4/15/94 for the parties to conclude discovery [124−1] (kk) (Entered: 03/28/1994)
143 EMERGENCY MOTION filed by defendant SHARON PRATT KELLY to strike plaintiffs' experts , for a protective order regarding defendant's naming of her experts and to shorten plaintiffs' time to oppose this motion ; Attachment (kk) (Entered: 03/29/1994)
144 REPLY by plaintiffs in support of their motion for sanctions for failure to cooperate in discovery [130−1] (kk) (Entered: 03/29/1994)
145 ORDER by Mag. Judge Deborah A. Robinson : granting motion to shorten plaintiffs' time to oppose this motion [143−3] by SHARON PRATT KELLY plaintiffs opp to motion to strike plaintiffs' expert statement due by 4:00 p.m., 4/1/94 ; defendant's reply due by 4:00 p.m., 4/5/94. (N) motion due 4:00 4/5/94 ; (N) (bh) (Entered: 03/29/1994)
146 SUPPLEMENTAL MEMORANDUM by defendant SHARON PRATT KELLY in support of her emergency motion for protective order regarding deposition of Pamela Shaw and the District's Rule 30(B)(6) designee [115−1] (kk) (Entered: 03/31/1994)
147 SUPPLEMENT by defendant SHARON PRATT KELLY to her motion to compel plaintiffs' supplemental responses to defendant's interrogatories and request for production of documents, plaintiffs' appearance for their depositions, and plaintiffs' submission of an index identifying all documents withheld or redacted and the basis for withholding said information [123−1]; Attachment (kk) Modified on 04/04/1994 (Entered: 04/04/1994)
148 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to her motion to compel plaintiffs' supplemental responses to defendant's interrogatories and request for production of documents, plaintiffs' appearance for their depositions and plaintiffs' submission of an index identifying all documents withheld or redacted and the basis for withholding said information [123−1]; Attachment (kk) (Entered: 04/04/1994)
149 RESPONSE by plaintiffs in opposition to emergency motion to strike plaintiffs' experts [143−1] by defendant SHARON PRATT KELLY; Exhibits (6) (kk) (Entered: 04/04/1994)
150 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's motion to extend the deadline from 3/1/94 to 4/15/94 for the parties to conclude discovery [124−1] (kk) (Entered: 04/05/1994)
151 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's motion to strike plaintiffs' experts [143−1]; Attachments (kk) (Entered: 04/06/1994)
DISCOVERY STATUS HEARING before Mag. Judge Deborah A. Robinson : Reporter: ERO (bh) (Entered: 04/12/1994)
154 ORDER by Magistrate Judge Deborah Robinson : denying motion to strike plaintiffs' experts [143−1] by SHARON PRATT KELLY, denying motion for a protective order regarding defendant's naming of her experts [143−2] by SHARON PRATT KELLY, denying for sanctions for failure to cooperate in discovery [130−1] by plaintiff(s)ssssssssssss, denying motion to compel plaintiffs' supplemental responses to defendant's interrogatories and request for production of documents, plaintiffs' appearance for their depositions and plaintiffs' submission of an index identifying all documents withheld or redacted and the basis for withholding said information [123−1] by SHARON PRATT KELLY, denying motion to quash subpoena [121−1] by SHARON PRATT KELLY, denying motion for a protective order regarding deposition of Helen Keys [121−2] by SHARON PRATT KELLY, denying motion for protective order regarding deposition of Pamela Shaw and the District's Rule 30(B)(6) designee [115−1] by SHARON PRATT KELLY, denying motion for a

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 18 of 25

04/15/1994
04/21/1994
05/13/1994 05/13/1994
05/17/1994 05/20/1994 06/01/1994 06/03/1994 06/03/1994 06/07/1994 06/14/1994 06/14/1994
06/16/1994 06/20/1994 06/20/1994

protective order governing the copying of plaintiffs' documents [111−1] by SHARON PRATT KELLY, granting motion for protective order regarding pending depositions of plaintiff LISA GOODE, plaintiff FRANK TRINITY and the corporate plaintiffs [110−1] by SHARON PRATT KELLY, said depositions to be completed by 4/15/94; denying motion to quash subpoenas [109−1] by SHARON PRATT KELLY; denying oral motion of defendant for protective order to preclude plaintiff from taking depositions of 6 homeless families; denying all implied requests for extension of discovery; counsel are expected to resolve scheduling conflicts wihout furthe intervention of the Court. (N) (mon) Modified on 05/02/1994 (Entered: 04/22/1994)
152 MEMORANDUM OPINION AND ORDER by Judge Joyce H. Green : granting motion for class certification [28−1]; granting in part as to Counts 1 &2, denying in part as to Counts 3,4,5, &6 as to motion to dismiss plaintiffs' first amended complaint [55−1], and Counts 1 &2 stand dismissed; status hearing set for 9:45 5/13/94 (N) (jaw) (Entered: 04/15/1994)
153 ORDER by Mag. Judge Deborah A. Robinson :denying oral motion of plaintiffs' made during 4/14/94 teleconference to permit filing of supplemental opinions of expert witnesses after close of discovery on 4/15/94. (N) (mon) Modified on 04/22/1994 (Entered: 04/22/1994)
STATUS HEARING before Judge Joyce H. Green : Reporter: Carrie Gansle (jaw) (Entered: 05/13/1994)
155 ORDER by Judge Joyce H. Green : deft. to file its answer to amended complaint by 5/17/94 ; deft. to provide the supplemental documents alluded to at the status conference by 5/18/94; cross motions for summary judgment due 6/3/94 ; response to cross motions due 6/30/94 reply to cross motions due 6/27/94; there shall be NO extension of these dates (N) (jaw) (Entered: 05/13/1994)
156 ANSWER TO AMENDED COMPLAINT [43−1] by defendant SHARON PRATT KELLY (kk) (Entered: 05/18/1994)
CASE referral ended Mag. Judge Deborah A. Robinson (fs) (Entered: 05/20/1994)
157 MOTION filed by plaintiffs for sanctions for discovery abuses ; Exhibits (7) (kk) (Entered: 06/02/1994)
158 MOTION filed by defendant SHARON PRATT KELLY for summary judgment ; Exhibits (8) (kk) (Entered: 06/10/1994)
159 MOTION filed by plaintiffs for summary judgment on Counts V and VII of the amended complaint ; Exhibits (19) (kk) (Entered: 06/10/1994)
CASE REFERRED to Mag. Judge Deborah A. Robinson for extension of discovery (mbd) (Entered: 06/07/1994)
160 CONSENT MOTION filed by defendant SHARON PRATT KELLY to extend time to 6/16/94 for filing an opposition to plaintiffs' motion for sanctions for discovery abuses regarding the video deposition of James D. Butts (kk) (Entered: 06/15/1994)
161 ORDER by Mag. Judge Deborah A. Robinson : granting defendant's motion to extend time to 6/16/94 for filing opposition to plaintiffs' motion for sanctions for discovery abuses regarding the video deposition of James D. Butts [160−1] (N) (bh) (Entered: 06/16/1994)
162 RESPONSE by defendant SHARON PRATT KELLY in opposition to plaintiffs' motion for sanctions for discovery abuses [157−1]; Exhibits (4) (kk) (Entered: 06/17/1994)
163 TRANSCRIPT of status call before Judge Joyce Green filed for date of 5/13/94. Reporter: C. Gansle (kk) (Entered: 06/21/1994)
164 MEMORANDUM by defendant SHARON PRATT KELLY in opposition to plaintiffs' motion for summary judgment on Counts V and VII of the amended complaint [159−1]; Exhibits (13) (kk) Modified on 06/21/1994 (Entered: 06/21/1994)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 19 of 25

06/20/1994 06/23/1994 06/27/1994 06/27/1994 07/15/1994 07/25/1994 07/27/1994
07/29/1994 08/01/1994 08/01/1994
08/04/1994 08/05/1994 08/15/1994 08/18/1994
08/23/1994
08/29/1994 09/07/1994 09/16/1994

165 RESPONSE by plaintiffs in opposition to motion for summary judgment [158−1] by defendant SHARON PRATT KELLY; Exhibits (25), Attachment (kk) (Entered: 06/21/1994)
166 REPLY by plaintiffs to defendant's opposition to motion for sanctions for discovery abuses [157−1] by plaintiffs; Exhibits (6) (dbw) (Entered: 06/24/1994)
167 REPLY by plaintiffs to response by defendant in opposition to plaintiffs' motion for summary judgment on Counts V and VII of the amended complaint [159−1]; Exhibits (8), Attachments (2) (kk) (Entered: 06/29/1994)
168 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's motion for summary judgment [158−1]; Exhibits (2) (kk) (Entered: 06/29/1994)
169 RESPONSE by defendant SHARON PRATT KELLY to plaintiffs' comments concerning the D.C. Initiative as set forth in plaintiffs' opposition to defendant's motion for summary judgment [165−1]; Attachments (kk) (Entered: 07/15/1994)
170 MOTION filed by plaintiffs to strike defendant's response to plaintiffs' comments concerning the D.C. Initiative as set forth in plaintiffs' opposition to defendant's motion for summary judgment [169−1] (kk) (Entered: 07/26/1994)
171 RESPONSE by defendant SHARON PRATT KELLY in opposition to plaintiffs' motion to strike defendant's response to plaintiffs' comments concerning the D.C. Initiative as set forth in plaintiffs' opposition to defendant's motion for summary judgment [170−1] (kk) (Entered: 07/28/1994)
172 NOTICE OF FILING by defendant SHARON PRATT KELLY of executed declaration of Helen Keys; Attachment (kk) (Entered: 08/01/1994)
173 MOTION filed by plaintiffs for reconsideration of Court's Memorandum Opinion and Order dismissing Count I of the amended complaint [152−1], [152−2] ; Exhibits (2) (kk) (Entered: 08/02/1994)
174 REPLY by plaintiffs in support of their motion to strike defendant's response to plaintiffs' comments concerning the D.C. Initiative as set forth in plaintiffs' opposition to defendant's motion for summary judgment [169−1] [170−1] (kk) (Entered: 08/02/1994)
CASE referral ended Mag. Judge Deborah A. Robinson (bh) (Entered: 09/27/1994)
175 ORDER by Mag. Judge Deborah A. Robinson : denying motion for sanctions for discovery abuses [157−1] by plaintiff(s) (N) (pao) (Entered: 08/05/1994)
176 MOTION filed by defendant SHARON PRATT KELLY to extend time to 8/29/94 to oppose plaintiffs' motion for reconsideration of the order dismissing Count I of the amended complaint (kk) (Entered: 08/16/1994)
177 RESPONSE by plaintiff(s) in opposition to motion to extend time to 8/29/94 to oppose plaintiffs' motion for reconsideration of the order dismissing Count I of the amended complaint [176−1] by SHARON PRATT KELLY. (dbw) (Entered: 08/19/1994)
178 ORDER by Judge Stanley S. Harris : granting motion by defendant SHARON PRATT KELLY to extend time to oppose plaintiffs' motion for reconsideration of the order dismissing Count I of the amended complaint [176−1]; there shall be no further extensions for this purpose (N) (kk) (Entered: 08/29/1994)
179 RESPONSE by defendant SHARON PRATT KELLY in opposition to plaintiffs' motion for reconsideration of Court's Memorandum Opinion and Order dismissing Count I of the amended complaint [173−1] (kk) (Entered: 08/30/1994)
180 REPLY by plaintiffs in support of their motion for reconsideration of the Court's Memorandum Opinion and Order dismissing Count I of the amended complaint [173−1] (kk) (Entered: 09/08/1994)
181 WITHDRAWAL OF APPEARANCE by plaintiff(s) of attorney Gary L. Ivens. (dbw) (Entered: 09/16/1994)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 20 of 25

11/02/1994 11/02/1994 11/21/1994 11/28/1994 12/05/1994
12/05/1994 03/27/1995
04/11/1995 04/12/1995 04/12/1995 04/12/1995
04/19/1995

182 NOTICE OF FILING by plaintiffs of additional authority in support of their motion for reconsideration of the Court's Memorandum Opinion and Order dismissing Count I of the amended complaint [173−1]; Exhibits (2) (kk) Modified on 11/04/1994 (Entered: 11/04/1994)
183 MOTION filed by plaintiffs to compel payment of expert fees ; Exhibits (5) (kk) (Entered: 11/04/1994)
184 RESPONSE by defendant SHARON PRATT KELLY in opposition to motion to compel payment of expert fees [183−1] by plaintiffs (mlp) (Entered: 11/23/1994)
185 REPLY by plaintiffs in support of their motion to compel payment of expert fees [183−1] (kk) (Entered: 11/29/1994)
186 ORDER by Judge Joyce H. Green : granting motion to compel payment of expert fees [183−1] by plaintiffs; and directing that the deft. shall issue a payment of $1,029.75 representing pltfs' expert fees and costs, payable to the firm of Howrey &Simon, within 45−days of the filing date of this order. (N) (jaw) (Entered: 12/06/1994)
187 RESPONSE by defendant SHARON PRATT KELLY to notice of filing of additional authority in support of plaintiffs' motion for reconsideration [182−1] by plaintiffs (ks) (Entered: 12/06/1994)
188 MEMORANDUM OPINION AND ORDER by Judge Joyce H. Green : denying motion for reconsideration of Court's Memorandum Opinion Order dismissing Count I of the amended complaint [152−1], [152−2] [173−1] by plaintiffs; granting in part, denying in part motion for summary judgment on Count V and granting as to Count VII of the amended complaint [159−1]; granting as to Count III, denying as to Count IV, granting in part, denying in part as to Count V, and denying as to Counts VI &VII as to motion for summary judgment by defendant [158−1]; status hearing set for 9:15 4/12/95 (N) (jaw) (Entered: 03/28/1995)
189 NOTICE OF FILING by defendant SHARON PRATT KELLY of emergency legislation approved by the District of Columbia City Council on 3/4/95; Exhibits (3) (kk) (Entered: 04/12/1995)
STATUS HEARING before Judge Joyce H. Green : Reporter: Gordon Slodysko (jaw) (Entered: 04/12/1995)
190 NOTICE OF FILING by defendant SHARON PRATT KELLY of a copy of the Memorandum of Understanding between the District of Columbia, the U.S. Department of Housing and Urban Development and the Community Partnership for the Prevention of Homelessness; Attachments (2) (kk) (Entered: 04/13/1995)
191 DECLARATORY JUDGMENT by Judge Joyce H. Green : declaring that the deft. has violated DC Code 3−206.3(a) by failing to claim federal financial assistance for homeless families through the federal emergency assistance (EA) program from 7/1/93 through 4/10/95 ; and denying as moot, without prejudice to renew at a later date if appropriate, the request of pltf. for writ of mandamus directing deft. to reenter the federal program. (N) (jaw) (Entered: 04/13/1995)
192 ORDER by Judge Joyce H. Green : directing that on or before 4/24/95, defendant shall stipulate that the testimony of Pamela Shaw concerning the intake policies and practices of the District of Columbia at the Office of Emergency Shelter Support Services (OESSS), and t hetestimony of James Butts concerning funding for the emergency shelter program remain unchanged as of April 24, 1995 from the testimony given in their deposition; parties shall consult as soon as possible after 5/1/95, to determine whether any or all of the remaining claims in this case are moot in light of any changes in intake policies and procedures; status hearing set for 9:00 5/10/95; parties shall hand−serve on opposing counsel and file with the Court Witness lists on or before 5/8/95; stipulations of facts on or before 5/11/95; responses on or before 5/18/95; designations of deposition excerpts to be relied upon at trial on or before 5/10/95, and counter−designations or or before 5/17/95; exhibit lists on or before 5/12/95; motion in limine shall be filed and hand−served on or before 5/11/95, and oppositions on or before 5/16/95 (N) (jwd) (Entered: 04/19/1995)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 21 of 25

04/26/1995 04/26/1995 05/08/1995 05/08/1995 05/10/1995 05/10/1995 05/10/1995 05/11/1995
05/11/1995 05/11/1995
05/11/1995 05/12/1995 05/12/1995 05/16/1995
05/16/1995
05/17/1995
05/17/1995
05/17/1995 05/18/1995 05/18/1995
05/18/1995

193 ATTORNEY APPEARANCE for plaintiffs by Peder A. Garske (bjsp) (Entered: 04/27/1995)
194 ATTORNEY APPEARANCE for plaintiffs by Martin F. Cunniff (bjsp) (Entered: 04/27/1995)
195 WITNESS LIST by defendant SHARON PRATT KELLY (kk) (Entered: 05/09/1995)
196 WITNESS LIST by plaintiffs (kk) (Entered: 05/09/1995)
197 NOTICE OF FILING by defendant SHARON PRATT KELLY of designation of deposition testimony (kk) (Entered: 05/11/1995)
198 NOTICE OF FILING by plaintiffs of Memorandum of Agreement signed by the District of Columbia and the Community Partnership (kk) (Entered: 05/11/1995)
199 NOTICE OF FILING by plaintiffs of deposition designations (kk) (Entered: 05/11/1995)
200 MOTION filed by defendant SHARON PRATT KELLY in limine to exclude evidence and witnesses to be called by plaintiffs at trial ; Exhibits (5) (kk) (Entered: 05/12/1995)
201 NOTICE OF FILING by defendant SHARON PRATT KELLY of proposed stipulations of fact (kk) (Entered: 05/12/1995)
202 MOTION filed by plaintiffs in limine for order that case files produced by defendant are authentic, are admissible as public records and that exhibits summarizing contents of case files are admissible under Federal Rule of Evidence 1006 ; Exhibits (8) (kk) (Entered: 05/12/1995)
203 NOTICE OF FILING by plaintiffs of proposed stipulation of facts; Exhibits (2) (kk) (Entered: 05/12/1995)
204 EXHIBIT LIST by defendant SHARON PRATT KELLY (kk) (Entered: 05/15/1995)
205 PLAINTIFFS' EXHIBIT LIST (FILED UNDER SEAL IN ROOM 1800) (kk) (Entered: 05/15/1995)
206 RESPONSE by plaintiffs in opposition to motion in limine by defendant SHARON PRATT KELLY to exclude evidence and witnesses to be called by plaintiffs at trial [200−1]; Exhibits (2) (kk) (Entered: 05/17/1995)
207 RESPONSE by defendant SHARON PRATT KELLY in opposition to plaintiffs' motion in limine for order that case files produced by defendant are authentic, are admissible as public records and that exhibits summarizing contents of case files are admissible under Federal Rule of Evidence 1006 [202−1]; Attachment (kk) (Entered: 05/17/1995)
208 EMERGENCY MOTION filed by defendant SHARON PRATT KELLY to quash subpoena of plaintiffs seeking new documents not requested during discovery and for an expedited briefing schedule ; Attachments (kk) (Entered: 05/18/1995)
209 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's motion in limine to exclude evidence and witnesses to be called by plaintiffs at trial [200−1] (kk) (Entered: 05/18/1995)
210 NOTICE OF FILING by plaintiffs of their counter designations to defendant's deposition designations (kk) (Entered: 05/18/1995)
212 RESPONSE by plaintiffs to proposed stipulations of fact [201−1] by defendant SHARON PRATT KELLY (kk) (Entered: 05/19/1995)
213 RESPONSE by plaintiffs in opposition to emergency motion by defendant SHARON PRATT KELLY to quash subpoena of plaintiffs seeking new documents not requested during discovery [208−1]; Exhibits (2) (kk) (Entered: 05/19/1995)
214 SUPPLEMENT by defendant SHARON PRATT KELLY to defendant's emergency motion to quash subpoena of plaintiffs seeking new documents not requested during

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 22 of 25

05/18/1995
05/18/1995 05/19/1995 05/19/1995 05/19/1995
05/22/1995 05/23/1995 05/24/1995 05/25/1995
06/20/1995 06/20/1995 06/20/1995 06/20/1995 06/29/1995 07/10/1995
07/21/1995 08/11/1995

discovery [208−1], and for an expedited briefing schedule [208−2] (kk) (Entered: 05/19/1995)
215 REPLY by defendant SHARON PRATT KELLY to response by plaintiffs in opposition to defendant's emergency motion to quash subpoena of plaintiffs seeking new documents not requested during discovery [208−1] [213−1] (kk) Modified on 05/19/1995 (Entered: 05/19/1995)
216 NOTICE OF FILING by defendant SHARON PRATT KELLY of responses to plaintiffs' proposed stipulation of facts; Attachment (kk) Modified on 05/19/1995 (Entered: 05/19/1995)
211 ORDER by Judge Joyce H. Green : granting in part, denying in part motion to quash subpoena of plaintiffs seeking new documents not requested during discovery [208−1] (N) (jaw) (Entered: 05/19/1995)
217 NOTICE OF FILING by defendant SHARON PRATT KELLY of ADDITIONAL OBJECTIONS to plaintiffs' exhibits [205−1]; Attachment (kk) (Entered: 05/22/1995)
218 ORDER by Judge Joyce H. Green : directing that witnesses who are available &within the subpoena power of the Court must testify in person at trial; that any party proffering the testimony of an expert witness must produce at that time the Rule 26(b)(4) statement of that witness ; any stipulations shall be hand delivered or transmitted by facsimile to this Court's chambers by 8:00 PM on 5/22/95, signed at 5:25 PM. (N) (jaw) (Entered: 05/22/1995)
NON−JURY TRIAL before Judge Joyce H. Green begun and respited to 10:00 AM on 5/23/95. Reporter: Gordon Slodysko (jaw) (Entered: 05/23/1995)
NON−JURY TRIAL before Judge Joyce H. Green resumed and continued to 10:00 5/24/95 reporter: Gordon Slodysko (jwd) (Entered: 05/23/1995)
NON−JURY TRIAL before Judge Joyce H. Green resumed and respited to 9:30 AM on 5/25/95. Reporter: Gordon Slodysko (jaw) (Entered: 05/25/1995)
NON−JURY TRIAL before Judge Joyce H. Green resumed, concluded, and taken under advisement. Parties to submit findings of fact and conclusions of law by 4:00 PM on 7/7/95, along with copies of all DC regulations that they are relying upon, with NO extension of this date. Reporter: Gordon Slodysko (jaw) (Entered: 05/25/1995)
219 TRANSCRIPT of trial by Court before Judge Joyce Green filed for date of 5/22/95. Reporter: Gordon A. Slodysko; Volume (I) (bjsp) (Entered: 06/21/1995)
220 TRANSCRIPT of trial by Court before Judge Joyce Green filed for date of 5/23/95. Reporter: Gordon A. Slodysko; Volume (II) (bjsp) (Entered: 06/21/1995)
221 TRANSCRIPT of Trial by Court before Judge Joyce Green filed for date of 5/24/95. Reporter: Gordon A. Slodysko; Volume (III) (bjsp) (Entered: 06/21/1995)
222 TRANSCRIPT of trial by Court before Judge Joyce Green filed for date of 5/25/95. Reporter: Gordon A. Slodysko; Volume (IV) (bjsp) (Entered: 06/21/1995)
223 MOTION filed by defendant SHARON PRATT KELLY to extend the deadline for filing post−trial proposed findings of fact and conclusions of law and for an expedited briefing schedule to 8/11/95 (bjsp) (Entered: 06/30/1995)
224 ORDER by Judge Joyce H. Green : granting motion to extend the deadline for filing post−trial proposed findings of and conclusions of law and for an expedited briefing schedule to 8/11/95 [223−1] by SHARON PRATT KELLY proposed findings of fact and conclusions of law of the parties are due by 8/11/95 (N) (jaw) (Entered: 07/10/1995)
225 NOTICE OF CHANGE OF ADDRESS by Joanne E. Caruso representing plaintiff. New address: HOWREY &SIMON 550 South Hope Street, Suite 1400, Los Angeles, CA 90071, (213) 892−1800. (bjsp) (Entered: 07/24/1995)
226 PROPOSED POST−TRIAL FINDINGS OF FACT and Conclusions of Law by defendant MARION S. BARRY, Jr. (bjsp) (Entered: 08/14/1995)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 23 of 25

08/11/1995 08/11/1995 08/11/1995 08/22/1995 08/22/1995 08/24/1995 02/13/1996 02/23/1996
02/23/1996 03/14/1996 03/25/1996
03/26/1996 04/02/1996 04/08/1996 04/08/1996 04/23/1996 04/29/1996 05/02/1996

227 PROPOSED FINDINGS OF FACT and Conclusions of Law by plaintiffs' (bjsp) (Entered: 08/14/1995)
228 POST−TRIAL MEMORANDUM by plaintiffs' (bjsp) (Entered: 08/14/1995)
229 NOTICE OF FILING by plaintiffs' to the Court of Applicable Laws and Regulations ; exhibits (4) (bjsp) (Entered: 08/14/1995)
230 OBJECTIONS by defendant SHARON PRATT KELLY to plaintiffs' proposed findings of facts and conclusions of law [227−1] (bjsp) (Entered: 08/23/1995)
231 MOTION filed by defendant SHARON PRATT KELLY for leave to file defendant's supplemental proposed findings of fact and conclusions of law EXHIBIT (defendant's proposed findings of fact and conclusions of law) (bjsp) (Entered: 08/23/1995)
232 ORDER by Judge Joyce H. Green : denying motion for leave to file defendant's supplemental proposed findings of fact and conclusions of law [231−1] by SHARON PRATT KELLY (N) (jaw) (Entered: 08/24/1995)
233 NOTICE OF WITHDRAWAL of attorney Jesse P. Goode for MARION BARRY. (tw) (Entered: 02/14/1996)
234 MEMORANDUM OPINION AND ORDER by Judge Joyce H. Green : directing that within 60−days of this Memorandum Opinion &Order, the District shall develop &implement policies and procedures to define "reasonabley available" documentation; to require coordination between OESSS and other approprite offices within DHS for the purpose of verifying information contained with DHS; to provide prompt hearings and prompt decisions on appeals from adverse eligibility determinations, and to include accurate information on the Notice of Eligibility Determination regarding the time frames for hearings and decisions ; pltfs. to submit their request for attorneys' fees by 4/8/96 ; response due 4/29/96 ; and replies due 5/13/96 (N) (jaw) (Entered: 02/26/1996)
235 JUDGMENT by Judge Joyce H. Green in favor of plaintiffs in part and against the pltfs. in part; and in favor of deft. MARION BARRY in part and against the deft. in partagainst defendant (N) (jaw) (Entered: 02/26/1996)
236 BILL OF COSTS by plaintiffs; attachments (38) (tw) Modified on 03/15/1996 (Entered: 03/15/1996)
237 NOTICE OF APPEAL by defendant MARION BARRY from judgment order [235−1] , entered on: 2/23/96. No fee paid D.C. Government; copies mailed to Joanne E. Caruso, Martin F. Cunniff, Peder A. Garske, and Mark Douglas Wegener (tw) Modified on 03/26/1996 (Entered: 03/26/1996)
TRANSMITTED PRELIMINARY RECORD on appeal [237−1] by MARION BARRY to U.S. Court of Appeals (tw) (Entered: 03/26/1996)
USCA # 96−7066 assigned for appeal [237−1] by MARION BARRY (tw) (Entered: 04/03/1996)
238 MOTION filed by plaintiff for attorney fee against MARION BARRY ; exhibits (9) (tw) (Entered: 04/09/1996)
239 RESPONSE by defendant MARION BARRY to plaintiffs filing of their bill of costs [236−1] (tw) (Entered: 04/09/1996)
240 STATUS REPORT by defendant MARION BARRY regarding implementation of the court's February 23, 1996 memorandum opinion and order; exhibits (5) (tw) (Entered: 04/24/1996)
241 (CONSENT) MOTION filed by defendant MARION BARRY to extend time to 5/6/96 for filing his opposition to plaintiffs' petition for attorney's fees (tw) (Entered: 04/30/1996)
242 ORDER by Judge Joyce H. Green : granting motion to extend time to 5/6/96 for filing his opposition to plaintiffs' petition for attorney's fees [241−1] by MARION BARRY; response to petition due by 5/6/96 ; and reply due 5/20/96 (N) (jaw) (Entered: 05/02/1996)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 24 of 25

05/06/1996 05/06/1996 05/14/1996 05/17/1996 05/17/1996 05/20/1996 07/23/1996
07/26/1996
07/29/1996 08/01/1996 09/06/1996 09/13/1996 09/20/1996 10/31/1996
11/18/1996 12/04/1996 12/05/1996

243 MEMORANDUM by defendant MARION BARRY in opposition to plaintiffs' motion for attorneys' fees [238−1] (tw) (Entered: 05/07/1996)
244 RESPONSE by plaintiffs to defendant's status report to the court [240−1] (tw) (Entered: 05/07/1996)
245 MOTION filed by defendant MARION BARRY to extend time to 5/16/96 for filing his reply to plaintiff's response to defendant's status report (tw) (Entered: 05/15/1996)
246 REPLY by defendant MARION BARRY to plaintiffs' response to defendant's status report to the court [240−1]. (tw) (Entered: 05/20/1996)
247 ORDER by Judge Joyce H. Green : granting motion to extend time to 5/16/96 for filing his reply to plaintiff's to defendant's status report [245−1] by MARION BARRY; response due by 5/16/96 (N) (jaw) (Entered: 05/20/1996)
248 REPLY by plaintiff's to defendant's oppositon to plaintiff's petition for attorney's fees [238−1] (tw) (Entered: 05/21/1996)
249 ORDER by Judge Joyce H. Green : directing that no stay will be granted by this Court during the pendency of the appeal by deft.; and that resolution of pltfs' request for attorneys' fees will await the final decision of the USCA (N) (jaw) (Entered: 07/24/1996)
250 NOTICE OF INTERLOCUTORY APPEAL by defendant MARION BARRY [249−1], order [249−2] , entered on: July 23, 1996. No fee paid D.C. Government; Copies mailed to Joanne E. Caruso, Edward Schwab, Martin F. Cunniff, Peder A. Garske and Mark Douglas Wegener (tw) Modified on 07/29/1996 (Entered: 07/29/1996)
TRANSMITTED PRELIMINARY RECORD on appeal [250−1] by MARION BARRY to U.S. Court of Appeals (tw) (Entered: 07/29/1996)
USCA # 96−7165 assigned for appeal [250−1] by MARION BARRY (tw) (Entered: 08/01/1996)
251 RESPONSE by defendant MARION BARRY to order of July 23, 1996 [249−1], order [249−2] (tw) (Entered: 09/09/1996)
252 RESPONSE by defendant MARION BARRY to order of July 23, 1995 USCA [249−1], order [249−2]; attachment (1) (tw) (Entered: 09/16/1996)
253 RESPONSE by plaintiffs to the District Court's September 6, 1996 report to the court. [249−1], order [249−2] (tw) (Entered: 09/23/1996)
254 ORDER by Judge Joyce H. Green : that the defendant shall submit a comprehensive memorandum on or before 11/218/96, precisely detailing its position asto what due process requires for appropriate time frames and administrative reviews, fair hearings, and final decision in the context of vitally important benefits such as emeergency housing for homeless families. As part of its memorandum, defendant will compare the District's administrative review and fair hearing time frames as set forth in its 4/23/96, and 9//96, reports with those of other, similar state and federal program; plaintiff shall file an opposition, providing the same precise detail and inter−program comparisons, on or before 12/4/96; should the District wish to reply, it must do so by written memorandum on or before 12/17,96; the parties are advised to set forth their memoranda arguments sufficient to enable the Court to rule upon these issues based solely upon the parties submissions; it is not likely that the Court will schedule oral argument on this issue; in addition, the parties are further advised that there will be no extensions of the deadlines herein (N) (jwd) (Entered: 11/01/1996)
255 MEMORANDUM by defendant MARION BARRY on the due process rights of homeless applicants in repsonse to the court's order of October 31, 1996; attachment (1) (tw) (Entered: 11/19/1996)
256 RESPONSE by plaintiffs' to the Court's 10/31/96 order on the due process rights of homeless families [254−1]; exhibits (4) (bjsp) (Entered: 12/05/1996)
257 SUPPLEMENTAL filing by defendant MARION BARRY to the Court RE: data from Fiscal Year 1996. ; attachment (bjsp) (Entered: 12/09/1996)

Case: 1:93-cv-691 As of: 12/17/2008 01:26 PM EST 25 of 25

12/17/1996 07/14/1997 10/28/1997 10/30/1997 11/14/1997 11/14/1997 11/17/1997 12/19/1997
01/05/1998

258 REPLY by defendant MARION BARRY to plaintiffs' response to the Court's order [256−1] of October 31/1996 on the due process rights of homeless familes by plaintiffs . (tw) (Entered: 12/20/1996)
259 CERTIFIED COPY of judgment filed in USCA dated 3/4/97, on appeal [237−1], appeal [250−1] , affirming the judgment of USDC in part , and reversing the judgment of USDC OPINION USCA # 96−7066 (cjp) (Entered: 07/16/1997)
260 CERTIFIED COPY of Order filed in USCA dated 9/18/97, referencing appeal [250−1] , dismissing appeal . USCA # 96−7165 (cjp) (Entered: 10/28/1997)
261 ORDER by Judge Joyce H. Green : directing that by 11/14/97, each party shall submit a brief memorandum to the Court stating its position on what issues remain in order to complete this long litigation (N) (jaw) (Entered: 10/30/1997)
262 STATUS REPORT by defendant MARION BARRY regarding the disposition of the case. (tw) (Entered: 11/17/1997)
264 STATUS REPORT by plaintiff stating what issues remain to complete the litigation in view of the decisions by the U.S. Court of Appeals for the District of Columbia. (tw) (Entered: 11/17/1997)
263 ORDER by Judge Joyce H. Green : parties are directed to meet &confer in accordance with Local Rule 215 to reach agreement regarding pltfs' request for fees on the First Amendment portion; parties to file joint memorandum by 12/19/97, advising the Court of the status of their dicusssions (N) (jaw) (Entered: 11/17/1997)
265 JOINT STATUS REPORT by plaintiff TAMMY MONTAGUE, plaintiff DEBRA KING, plaintiff KOYA HARLESTON, plaintiff TOMIKIO HALL, plaintiff ANGELINA EASTER, plaintiff FRANZIN MELTON, plaintiff SUNNY KIM, plaintiff WASH. LEGAL CLINIC, plaintiff FATHER MCKENNA CTR., plaintiff FRANK TRINITY, plaintiff LISA GOODE, plaintiff DIANN HAMMER, plaintiff PATRICIA KENNEDY, defendant MARION BARRY to the Court RE: parties concern about attorneys fees (bjsp) (Entered: 12/22/1997)
266 ORDER by Judge Joyce H. Green : directing that based on the agreement of the parties, pltfs. will be paid fees and costs of $30,000.00 in settlement of pltfs' request for fees and costs (N) (jaw) (Entered: 01/06/1998)

 
 United States Court of Appeals, District of Columbia Circuit.
WASHINGTON LEGAL CLINIC OF THE HOMELESS, et al., Appellees v.
Marion S. BARRY, Jr., in his official capacity as Mayor of Washington, District of Columbia, Appellant No. 96-7165.
Sept. 18, 1997.
BEFORE: WALD, SILBERMAN, and RANDOLPH, Circuit Judges.
ORDER
PER CURIAM. *1 Upon consideration of the motion to govern further proceedings, the opposition thereto, and the reply, it is
ORDERED, on the court's own motion, that this appeal be dismissed as moot and that the district court's July 23, 1996 order be vacated. The decision from which that order derives, holding that plaintiffs were constitutionally entitled to emergency shelter, was reversed by Washington Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 37 (D.C.Cir.1997). The July 23 order is therefore of no effect as it sought to impose conditions on the District which were based on the existence of the constitutional entitlement struck down in Washington Legal Clinic.
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. SeeD.C.Cir. Rule 41.
C.A.D.C.,1997. Washington Legal Clinic of Homeless v. Barry Not Reported in F.3d, 1997 WL 634555 (C.A.D.C.)
END OF DOCUMENT