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August 29, 1980

Gloria CATON et al., Plaintiffs,
Marion BARRY et al., Defendants

The opinion of the court was delivered by: OBERDORFER



 Since the inception of this litigation, the defendants have altered their plans regarding the Hartford Street Shelter. Originally, defendants had proposed to transfer the Hartford Street residents to the P Street and Parkside Shelters. By Order of July 9, 1980, the Court enjoined this proposed transfer pending a determination by the responsible official that conditions at Parkside and P Street are not so unsafe as to constitute a constructive termination of benefits under the family shelter program without due process. At the hearing on defendants' motion for summary judgment on August 4, defendants indicated that they would not attempt to close Hartford Street immediately, but would instead endeavor to phase it out, transferring its current residents to the P Street Shelter as space becomes available. In addition, defendants introduced affidavits by a fire official and the official responsible for the family shelter program that they had inspected and evaluated the P Street Shelter and concluded that the conditions there would not impose any risk to its residents. Defendants continue to press for summary judgment. They maintain that their plans for the Hartford Street Shelter violate no statutory or constitutional entitlements.

 The Hartford Street residents have raised essentially two distinct constitutional claims. First, plaintiffs maintain that they have a constitutionally protected property interest in continued residence at the Hartford Street Shelter (rather than some other family shelter) that cannot be abrogated without due process. The Court finds that no such property interest exists. Second, plaintiffs maintain that they have an entitlement to some minimal form of shelter and subsistence that cannot be abrogated without due process. Plaintiffs have alleged that because conditions at Parkside and P Street are either unsafe or otherwise inadequate, transfer there is a constructive equivalent of a denial of all benefits without due process. The Parkside residents who seek to intervene as plaintiffs allege, in substance, that their placement in the Parkside Shelter constitutes a denial of benefits under the program without due process.

 The Court concludes that plaintiffs do have a colorable claim to an entitlement to some minimal form of shelter that cannot be denied without due process of law. See Williams v. Barry, 490 F. Supp. 941 (D.D.C.1980). However, the plan now proposed by the defendants in no way infringes upon this protected interest. Plaintiffs' criticisms of the conditions at P Street were limited to the presence of wooden slats on windows, which allegedly restricted egress to fire escapes. The affidavits filed by defendants August 4 demonstrate, without contradiction, that those slats can be opened from the inside or the outside of the building and do not block access to the fire escapes. Accordingly, defendants are entitled to summary judgment on plaintiffs' claim that transfer to P Street would constitute the constructive denial of benefits without due process.

 Additionally, defendants have now remedied the defect in process requiring preliminary injunctive relief. By Order of July 9, the Court enjoined the proposed transfers because the record failed to disclose that the responsible official had made a reasoned determination that the conditions at Parkside and P Street were not so unsafe as to constitute a risk to life. The August 4, 1980, affidavit of Audrey Rowe, the official responsible for the family shelter program, demonstrates on its face that Ms. Rowe has fully considered whether the transfer of Hartford Street residents to P Street would impose a risk to their safety.

 Plaintiffs misconceive the nature of the July 9 Order by insisting that the Court has authorized and should undertake thorough substantive review, complete with discovery by deposition of all responsible officials, of the decision to close Hartford Street and transfer its residents. *fn1" Ordinarily, a decision that does not purport to affect an underlying benefit, such as the decision here, does not raise a question of constitutional significance calling for judicial intervention or oversight. A claim arises, if at all, when it becomes apparent that the change in form or circumstances may be a change in substance that has the effect of denying the recipient a constitutionally protected benefit without due process. However, where the benefit at issue is one vital to the subsistence of the recipient, due process may require more: protection against arbitrary and capricious government action may require that the responsible official consider in advance whether a decision affecting the program may have such substantial repercussions that it will have the practical effect of denying the benefit through error or inadvertence. This extraordinary requirement is intended as a protective device to ensure that officials act responsibly. It is fully satisfied by an affidavit, supported by facts. The requirement that the decision reflect consideration of whether benefits will be constructively denied is not an invitation or a predicate to judicial review of the reasons for, merits or prudence of the decision itself. So long as the underlying constitutionally protected benefit is not interfered with, a decision to make administrative changes in a program is one fully committed to the discretion of the responsible government officials and is subject only to statutory review, if any is provided. Plaintiffs may, of course, sue in federal court if they can plausibly assert that a proposed change would deny a constitutionally protected benefit without due process. Judicial review, however, would be for the limited purpose of assuring that the benefit is not denied without due process and outlining what administrative process is due if a denial is found. See generally O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S. Ct. 2467, 65 L. Ed. 2d 506 (1980).

 Accordingly, the Hartford Street plaintiffs can no longer claim to be suffering from a deprivation of any constitutionally protected interest. The Court has not found defendants' conduct to violate any other colorable constitutional or federal statutory entitlement. The Court declines to exercise pendent jurisdiction over plaintiffs' claims arising under the D.C. Administrative Procedure Act, D.C.Code § 1-1501 et seq. (1973), and D.C. regulations. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966); Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728, 740 (1969).

 For reasons more fully set forth herein, the Court will also deny the Parkside residents' motion to intervene and to amend the complaint. Accordingly, by accompanying Order, the Court grants in part defendants' motion for summary judgment; based upon defendants' representations that they will transfer the Hartford Street residents only to P Street as space becomes available, the remainder of the claim is moot.

 Factual Background:

 The District of Columbia operates three facilities providing shelter to homeless and destitute families pursuant to the D.C. Emergency Assistance Program. The program is designed to provide temporary, emergency assistance to families who are without other means of support or shelter. Four families, plaintiffs herein, have been occupying the Hartford Street Shelter for two months or more. The defendants provide similar services at two other locations, the Parkside Family Shelter and the P Street Family Shelter.

 On May 23, defendants published a notice in the D.C. Register of a proposal to close the Hartford Street Shelter "due to the inadequate state of their facility." Plaintiffs submitted comments in response to this notice opposing the proposed closing. However, defendants provided no hearing or other process. Residents of the Hartford Street facility received individual notices on June 5, 1980, instructing them to vacate the facility no later than June 20, 1980. The residents in fact remained in the ...

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