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Wash. Legal Clinic for the Homeless v. Barry - 323 U.S. App. D.C. 219, 107 F.3d 32 (1997)


To determine whether a particular statute creates a constitutionally protected property interest, the court asks whether the statute or implementing regulations place substantive limitations on official discretion. Statutes or regulations limit official discretion if they contain explicitly mandatory language, that is, specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow. 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. 


Appellee legal clinic filed an action against appellant mayor that alleged that the city violated 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. The clinic also challenged the policy that limited clinic staff access to the shelter office waiting room. The district court held that the homeless had a constitutionally protected right to emergency shelter and that the waiting room restriction violated the First Amendment


Did the homeless shelter's policy that limited unsolicited advocates' access to the shelter during certain times violate the First Amendment?




The United States Court of Appeals reversed the district court's due process ruling. The Court held that because the shelter office was free to adopt an allocation system under which not all eligible families received emergency shelter, eligible homeless families lacked the legitimate claim of entitlement necessary to create a constitutionally protected property right. The Due Process Clause of the Fifth Amendment prohibits the District of Columbia from depriving persons of property, without due process of law. Accordingly, individuals are entitled to due process only if they have a constitutionally protected property interest, which was not the case here.

Agreeing with the district court's ruling regarding the waiting room restriction, the Court held that although the shelter was not a public forum, the city offered no tenable reasons for restricting access to the waiting area. In a non-public forum, restrictions on First Amendment activity need only be reasonable. Therefore, the policy limiting unsolicited advocates' access to the shelter office waiting room to certain times of the week restriction violated the First Amendment.  

As for the applicable standard of review, the Court explained that because the district court's rulings were either conclusions reached on summary judgment or conclusions of law following trial, the appellate review is de novo.

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