all of its homeless. The District acknowledges that it will formally curtail, for the coming fiscal year and the foreseeable future, its expenditures for the provision of shelter services to the homeless. The temporary shelter that it proposes to provide them will, indeed, be little more than a short-term place of refuge after dark. Single adults will be limited generally to shelter stays of 30 days, and will no longer be permitted to take up indefinite occupancy. Beds will be made available on a "first-come-first-served" basis. Fees will be charged to persons admitted to shelters who are found to be financially able to pay them, and community service will be required of those who are not.
The legislation, in terms, declares that it contemplates only the provision of "emergency overnight shelter" to a homeless person, not a "housing accommodation." D.C. Code § 603(4)(4). An "emergency" is defined as a "situation of personal or family crisis that involves an immediate or imminent threat to the health or safety of a homeless person." D.C. Code § 3-603(4)(3).
The District offers no apology for its position, or for the plight of the homeless who receive less in the way of help than everyone, including the District, would like them to have. It must, as must all governments, ration its finite resources for social services. It has, by its elected officials, made a governmental judgment to assign the homeless a lesser priority than they may have had in the past, and it appears to have the right to do so without any judicial second-guessing, at least by the federal judiciary. As former Circuit Judge Bork said, concurring in Williams v. Barry :
The Mayor is an elected official and his decision on shelters is a political one. From the beginning of judicial review it has been understood that such decisions need not be surrounded and hemmed in with judicially imposed processes. Indeed, the reasons for judges not interfering with the methods by which political decisions are arrived at are closely akin, if not identical, to the considerations underlying the political question doctrine, a doctrine which denies the courts jurisdiction even to enter into certain areas.
* * *
There being no substantial constraints on the decision whether to close the shelters, that decision is a wholly political one and under no circumstances that I can imagine can there be a constitutional right to have that political judgment set about and circumscribed by procedural requirements. For the same reason, I cannot subscribe to the court's suggestion that a decision to close the shelters might in some circumstances itself be judicially reviewable. . . . Given our legal tradition, the suggestion that there may be judicial imposition of procedures on, and review of, plainly political decisions is revolutionary. It ought to be recognized as such, lest judges grow accustomed to the suggestion that they may control any process and begin to assume powers that clearly are not theirs.
Williams v. Barry, 708 F.2d at 793.
In any event, insofar as plaintiffs' present entitlement to the preliminary injunction they would have the Court enter, a still older case than Williams v. Barry, and from another jurisdiction, is instructive. In Metropolitan Housing Development Corp. v. Village of Arlington Heights (Ill.), 558 F.2d 1283 (7th Cir. 1977), in remanding to the district court for hearing as to whether the Fair Housing Act required a municipal zoning board to rezone property to enable the construction of low-cost minority housing to alleviate residential segregation, the Seventh Circuit articulated a four-part test for determining the availability of injunctive relief. use four factors represent a situation-specific adaption, in a Fair Housing Act context, of the four-part test by which applications for preliminary injunctive relief are assessed generally.
The questions the Seventh Circuit required the district court to answer in Arlington Heights were: (1) How strong is the plaintiffs' showing of discriminatory effect? (2) Is there some evidence of discriminatory intent? (3) What is the defendant's interest in taking the action complained of? and (4) Does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely restrain the defendant from interfering with individual property owners who wish to provide such housing? 558 F.2d at 1290. The Seventh Circuit then observed that, "if the defendant is a governmental body acting within the ambit of legitimately derived authority, we will less readily find that its action violates the Fair Housing Act," and continued to state:
The courts ought to be more reluctant to grant relief when the plaintiff seeks to compel the defendant to construct integrated housing or take affirmative steps to insure that integrated housing is built than when the plaintiff is attempting to build integrated housing on his own land and merely seeks to enjoin the defendant from interfering with that construction. To require a defendant to appropriate money, utilize land for a particular purpose, or take other affirmative steps toward integrated housing is a massive judicial intrusion upon private autonomy.
Id. at 1293.
In the instant case the answers to all four inquiries are unfavorable to the plaintiffs. They present, as previously noted, no evidence of discriminatory intent upon the part of the District of Columbia in closing the Pierce and Trust Clinic shelters, and none to show that the handicapped homeless persons are disproportionally affected in the selection of the shelters to be closed or inadequately accommodated in the manner of doing so. The District of Columbia is, moreover, a governmental body acting within the ambit of legitimately derived authority, both fiscal and legislative, and the relief sought is not merely a waiver of a regulatory requirement, but, rather, a "massive judicial intrusion" upon that governmental autonomy.
For the foregoing reasons, therefore, it is, this 5th day of September, 1991,
ORDERED, that plaintiffs' motion for a preliminary injunction is denied; and it is
FURTHER ORDERED, sua sponte, that a stay of the instant Order is denied; and it is
FURTHER ORDERED, that plaintiffs show cause why this case should not be dismissed pursuant to Fed. R. Civ. P. 12(h)(3) within thirty (30) days hereof, or of the completion of proceedings on any timely appeal taken herefrom.