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                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-11500
                               ________________________

                          D.C. Docket No. 5:15-cv-02325-AKK



SHEENA YARBROUGH,

                                                                         Plaintiff-Appellant,
                                             versus

DECATUR HOUSING AUTHORITY,

                                                                       Defendant-Appellee.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                              _______________________

                                     (October 29, 2019)

Before WILLIAM PRYOR and MARTIN, Circuit Judges, and VRATIL,* District
Judge.

WILLIAM PRYOR, Circuit Judge:




        *
          Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas,
sitting by designation.
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      This appeal requires us to decide whether, under the Due Process Clause of

the Fourteenth Amendment, some evidence supported the decision of the Decatur

Housing Authority to terminate Shenna Yarbrough’s housing voucher issued under

Section 8 of the Housing Act of 1937, 42 U.S.C. § 1437f. The Authority

terminated her voucher because she had “violated her agreement with the

Authority and her lease by engaging in drug-related criminal activity.” Yarbrough

filed a complaint against the Authority, id. § 1983, that the termination violated

both a federal regulation providing that “[f]actual determinations” in a voucher-

termination hearing “shall be based on a preponderance of the evidence,” 24

C.F.R. § 982.555(e)(6), and the constitutional right to due process of law. The

district court granted summary judgment to the Authority. A panel of this Court

reversed because the indictments and arrest records presented at the hearing failed

to establish that Yarbrough engaged in drug-related criminal activity under the

preponderance standard, but we later vacated that decision and reheard that issue

en banc. Yarbrough v. Decatur Hous. Auth. (Yarbrough I), 905 F.3d 1222, 1226

(11th Cir. 2018), rev’d en banc, 931 F.3d 1322 (11th Cir. 2019). The en banc court

overruled our earlier precedent, Basco v. Machin, 514 F.3d 1177 (11th Cir. 2008),

which underpinned the panel’s decision, but it left it to the panel on remand to

address Yarbrough’s remaining due process arguments. We now affirm the

summary judgment in favor of the Authority.



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                                I. BACKGROUND

      Sheena Yarbrough was a qualified participant in the Section 8 Housing

Assistance program operated by the Decatur Housing Authority under the

administration of the Department of Housing and Urban Development. The Section

8 program provides low-income families assistance with rental payments. 42

U.S.C. § 1437f(a). Public housing authorities have the power to terminate

assistance under Section 8 if any member of a participating family engages in

drug-related criminal activity. 24 C.F.R. § 982.551(l); see also id.

§ 982.553(b)(1)(iii). The regulatory requirement to refrain from drug-related

criminal activity was incorporated into the terms of Yarbrough’s agreement with

the Authority. To obtain housing benefits, she signed a document issued by the

Department of Housing and Urban Development entitled “Obligations of the

Participating [F]amily,” which provided that “members of the family may not

engage in drug-related criminal activity.”

      In September 2012, Yarbrough was arrested for selling Xanax and Lortab to

an undercover police informant. On learning of her arrest, the Authority notified

Yarbrough that it intended to terminate her program assistance. At Yarbrough’s

request, the Authority conducted a hearing at which a hearing officer found that

Yarbrough had engaged in drug-related criminal activity and upheld the decision.




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But based on legal advice, the Authority decided to postpone the termination of

Yarbrough’s housing assistance “until a court date or decision was rendered.”

      On April 11, 2013, a grand jury for the Circuit Court of Limestone County,

Alabama, indicted Yarbrough on two felony counts of unlawful distribution of a

controlled substance. On October 8, 2015, with the charges still pending, the

Authority sent Yarbrough a second notice of its intent to terminate her benefits. At

Yarbrough’s request, the Authority conducted a second informal hearing on

November 10, 2015. Yarbrough attended the hearing and was represented by

counsel. Her caseworker, Kenyetta Gray, attended the hearing and presented

testimony and evidence on behalf of the Authority.

      At the hearing, Gray presented the indictments and arrest records and

testified that they established that Yarbrough had sold Xanax and Lortab to an

undercover police informant. Gray also testified that the charges were still pending.

Yarbrough testified and admitted the arrests. She did not deny that she had sold

prescription medications to the undercover informant or otherwise dispute the

factual basis of the charges. Instead, she asserted that the charges would be

dismissed upon payment of court costs. Yarbrough also argued that the Authority

had agreed to wait for the outcome of the criminal proceedings before terminating

her benefits.




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      The hearing officer issued a written decision that Yarbrough “violated her

agreement with the Authority and her lease by engaging in drug-related criminal

activity.” The decision explained that the evidence of Yarbrough’s arrest and

indictments was sufficient to establish that Yarbrough engaged in drug-related

criminal activity. The hearing officer acknowledged that Yarbrough had presented

“credible evidence that the cases will be dismissed on payment of court costs.” But

he determined that because the charges remained pending and the indictments were

issued “by a duly impaneled grand jury,” the evidence was sufficient to establish

“that more likely than not, i.e. by a preponderance of the evidence, Ms. Yarbrough

engaged in drug related criminal activity in violation of the terms of her agreement

with the Authority.”

      Yarbrough filed a complaint against the Authority, see 42 U.S.C. § 1983, in

which she alleged that the Authority violated the regulation requiring a decision

based on a preponderance of the evidence, 24 C.F.R. § 982.555(e)(6), and the Due

Process Clause of the Fourteenth Amendment by basing its termination decision on

insufficient evidence and by relying exclusively on hearsay. After discovery, the

district court granted summary judgment in favor of the Authority on the grounds

that the indictments established that Yarbrough engaged in drug-related criminal

activity under a preponderance-of-the-evidence standard and that relying on the

indictments comported with due process.



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      A panel of this Court reversed and ruled “that the evidence before the

hearing officer was legally insufficient to sustain the Authority’s decision to

terminate Yarbrough’s Section 8 voucher under the preponderance standard in the

applicable regulation, 24 C.F.R. § 982.555(e)(6).” Yarbrough I, 905 F.3d at 1226.

To reach this conclusion, the panel relied on our decision in Basco, where we

assumed that compliance with that regulation is enforceable in a suit brought by a

private party under section 1983 and held that in a proceeding to terminate Section

8 benefits, a public housing agency “has the burden of persuasion and must

initially present sufficient evidence to establish a prima facie case” that the

recipient committed an act that licenses termination of his voucher under the

standard of proof imposed by the regulation. 514 F.3d at 1182. The panel

concluded that Basco mandated reversal of the summary judgment because a grand

jury determination “that the evidence against Yarbrough was sufficient to support a

reasonable belief in guilt” under the probable-cause standard applicable to grand

jury proceedings “cannot in itself prove that she more likely than not committed

the charged offenses, any more than an indictment for a criminal offense can

conclusively prove liability for a civil offense with the same elements.” Yarbrough

I, 905 F.3d at 1225–26. The panel did not address Yarbrough’s due process

arguments. Id. at 1225. A separate concurring opinion suggested that Basco was

wrong and should be overruled en banc. Id. at 1226–31 (W. Pryor, J., concurring).



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      The en banc court vacated the panel opinion, granted rehearing, and held

that the regulation creating a preponderance standard for voucher termination

proceedings, 24 C.F.R. § 982.555(e)(6), is not enforceable through section 1983,

and it overruled that part of our decision in Basco to the contrary. Yarbrough v.

Decatur Hous. Auth., 931 F.3d 1322, 1327 (11th Cir. 2019) (en banc). Before the

en banc court, Yarbrough contended that even if the regulatory standard of proof is

not enforceable through section 1983, the termination decision violated the Due

Process Clause of the Fourteenth Amendment. She argued that due process

requires that voucher-termination decisions be based on at least “some evidence,”

and the Authority’s decision did not satisfy this standard. And she argued that due

process prohibits a housing authority from basing a termination decision

exclusively on uncorroborated hearsay. The en banc court declined to address these

arguments and left them to the panel to resolve on remand. Id.

                          II. STANDARD OF REVIEW

      We review a “summary judgment de novo, applying the same legal

standards used by the district court.” Galvez v. Bruce, 552 F.3d 1238, 1241 (11th

Cir. 2008).

                                III. DISCUSSION

      A claim under section 1983 asserting a “denial of procedural due process

requires proof of three elements: (1) a deprivation of a constitutionally-protected



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liberty or property interest; (2) state action; and (3) constitutionally-inadequate

process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). The parties

agree that Yarbrough had a protected property interest in the continued receipt of

housing benefits and that the termination of her voucher qualified as state action,

so we will assume those elements of the claim are satisfied for purposes of this

decision. See Foxy Lady, Inc. v. City of Atlanta, 347 F.3d 1232, 1236 (11th Cir.

2003) (declining to address the first two elements of a procedural due process

claim because they were undisputed).

      We agree with Yarbrough that the Due Process Clause mandates some

evidentiary support for voucher-termination decisions. Procedural due process

ordinarily requires decisions that would deprive a person of a liberty or property

interest to be based on a modicum of evidence. See, e.g., Superintendent, Mass.

Corr. Inst., Walpole v. Hill, 472 U.S. 445, 447 (1985) (holding that “where good

time credits” earned by prisoners “constitute a protected liberty interest, a decision

to revoke such credits must be supported by some evidence”); Douglas v. Buder,

412 U.S. 430, 432 (1973) (holding that a finding that a person violated the

conditions of his probation “was so totally devoid of evidentiary support as to be

invalid under the Due Process Clause”); Schware v. Bd. of Bar Exam’rs, 353 U.S.

232, 239 (1957) (holding that a state cannot exclude a person from the practice of

law based on failure to satisfy its standards of qualification “when there is no basis



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for their finding that he fails to meet these standards”); United States ex rel.

Vajtauer v. Comm’r of Immigration, 273 U.S. 103, 106 (1927) (holding that a

deportation order violates due process if it was not “supported by any evidence”).

The rationale for this rule is that “a decision without basis in fact would tend to

indicate that the procedures, no matter how scrupulously followed, had been a

mockery of their intended purpose—rational decisionmaking.” Holley v. Seminole

Cty. Sch. Dist., 755 F.2d 1492, 1499 (11th Cir. 1985). In our view, a decision to

terminate a Section 8 voucher that was founded on no evidence would be just as

much of a farce as a decision to revoke good time credits, Hill, 472 U.S. at 447, or

to exclude a person from the practice of the law, Schware, 353 U.S. at 239, that

was devoid of any evidentiary support. Assuming that a voucher recipient has a

property interest in the continued receipt of benefits, we conclude that a voucher-

termination decision must be supported by some evidence.

      Nevertheless, this requirement does not mandate a robust substantive

evaluation of the sufficiency of the evidence supporting an administrative

determination. Indeed, if it did, it would conflict with an extensive body of caselaw

affirming that “[t]he Fourteenth Amendment does not guarantee that all decisions

by state officials will be correct.” Lavine v. Milne, 424 U.S. 577, 587 (1976); see

also Martinez v. California, 444 U.S. 277, 284 n.9 (1980) (“[E]ven if a state

decision does deprive an individual of life or property, and even if that decision is



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erroneous, it does not necessarily follow that the decision violated that individual’s

right to due process.”); Bishop v. Wood, 426 U.S. 341, 350 (1976) (“The Due

Process Clause . . . is not a guarantee against incorrect or ill-advised

. . . decisions.”); Vajtauer, 273 U.S. at 106 (holding that “a want of due process is

not established by showing merely that the decision is erroneous”). As the

Supreme Court has explained, “the very nature of the due process inquiry indicates

that the fundamental fairness of a particular procedure does not turn on the result

obtained in any individual case.” Walters v. Nat’l Ass’n of Radiation Survivors,

473 U.S. 305, 321 (1985). So the precedents holding that procedural due process

prohibits decisions predicated on no evidence must not be understood to license

review of the correctness of an agency decision.

      Instead, these precedents establish only that a procedure that permits

decisions founded on no evidence violates the Due Process Clauses. See Hill, 472

U.S. at 447 (requiring only “some evidence”); Douglas, 412 U.S. at 432 (holding

that a due process violation occurred because the record was “totally devoid of

evidentiary support”); Schware, 353 U.S. at 239 (violation occurred because there

was “no basis” for the challenged finding); Vajtauer, 273 U.S. at 106 (violation

occurs if decision is not “supported by any evidence”). As the Supreme Court

explained in Hill, the form of minimal evidentiary review mandated in some

contexts by procedural due process requires only “some evidence” that “supports



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the decision” in question. 472 U.S. at 455. “This standard is met if ‘there was some

evidence from which the conclusion of the administrative tribunal could be

deduced . . . .’” Id. (quoting Vajtauer, 273 U.S. at 106). “Ascertaining whether this

standard is satisfied does not require examination of the entire record, independent

assessment of the credibility of witnesses, or weighing of the evidence. Instead, the

relevant question is whether there is any evidence in the record that could support

the conclusion reached . . . .” Id. at 455–56. The decision need only “have some

basis in fact.” Id. at 456.

       The decision to terminate Yarbrough’s voucher satisfies this standard. The

Authority’s decision was based on testimony from Gray, two grand jury

indictments, arrest records, and testimony from Yarbrough herself. As noted,

Yarbrough admitted the arrests and did not deny that she had sold prescription

medications to an undercover informant or otherwise dispute the factual basis of

the charges. This evidence supported the conclusion reached by the Authority, id.

at 455–56, namely, that Yarbrough had engaged in drug-related criminal activity.

       Yarbrough responds that the “some evidence” standard mandates a more

searching form of review, akin to that prescribed by the “substantial evidence”

standard familiar from administrative law, but we disagree. Hill itself explicitly

contrasts the “some evidence” standard of review with “the stricter test of

‘substantial evidence,’” 472 U.S. at 449, and with good reason. Substantial



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evidence is a standard of statutory provenance. It does not derive from the

Constitution, but from judicial construction of the Wagner Act, 29 U.S.C. § 151 et

seq., and was then grafted onto the Administrative Procedure Act, 5 U.S.C. § 551

et seq., and other statutes, where it became a mainstay of judicial review of agency

action. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477–87 (1951)

(recounting the history of the substantial-evidence standard). The substantial-

evidence standard is also more demanding than the form of limited evidentiary

review contemplated by procedural due process. In particular, the substantial-

evidence standard requires evidence sufficient “to justify, if the trial were to a jury,

a refusal to direct a verdict when the conclusion sought to be drawn from it is one

of fact for the jury.” Id. at 477 (citation and internal quotation marks omitted).

Although this standard “differs from the ‘weight of evidence’ or ‘clearly

erroneous’ standards frequently applied by appellate courts in their review of trial

court determinations of fact, like them it contemplates review for correctness.”

McDonald v. Bd. of Trs. of Univ. of Ill., 375 F. Supp. 95, 103 (N.D. Ill. 1974), aff’d

and opinion adopted, 503 F.2d 105, 105–06 (7th Cir. 1974). And as we have

explained, review for the correctness of an administrative determination would be

inconsistent with the rule that procedural due process “is not a guarantee against

incorrect or ill-advised . . . decisions.” Bishop, 426 U.S. at 350. So the substantial-

evidence standard mandates an inquiry that “probes deeper into the record than



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does a review for fairness which is the essence of a due process inquiry.”

McDonald, 375 F. Supp. at 103.

      Yarbrough points out that in Holley we stated that procedural due process

mandates an inquiry into “whether the action taken is supported by substantial

evidence,” 755 F.2d at 1496 (citation and internal quotation marks omitted), and in

McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), we again said that

procedural due process may require review to ensure “that there is ‘substantial

evidence’” supporting an administrative determination, id. at 1558 n.13 (quoting

Holley, 755 F.2d at 1499). But these precedents use the phrase “substantial

evidence” to denote the “minimum quantum of evidence,” Holley, 755 F.3d at

1499 n.5, required by the “some evidence” standard. Holley equates a decision

unsupported by substantial evidence as one “without basis in fact,” id. at 1499,

which is logically equivalent to Hill’s definition of a determination supported by

“some evidence” as one with “some basis in fact,” 472 U.S. at 456. Holley also

states that “the ‘substantial evidence test’ under the Administrative Procedure Act”

is “closely related to the procedural due process concept,” which entails that those

standards are not identical. 755 F.2d at 1499 (alterations adopted) (emphasis

added) (citation and internal quotation marks omitted). McKinney does not provide

any explanation of the meaning of the term “substantial evidence” apart from its

references to Holley and the decision of the former Fifth Circuit in Viverette v.



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Lurleen B. Wallace State Junior Coll., 587 F.2d 191 (5th Cir. 1979), which

likewise did not elaborate on the meaning of the term. See id. at 193–94. In the

light of Holley’s specification of the meaning of its use of the phrase “substantial

evidence,” we conclude that where our precedents have used that phrase to denote

a standard of review mandated by procedural due process, they did so with the

evident intent of invoking the “some evidence” standard employed by the Supreme

Court in Hill and its antecedents. They do not seek to apply the substantial-

evidence standard familiar from administrative law.

      Yarbrough also argues that Hill requires “evidence in the record that could

support the conclusion reached,” 472 U.S. at 455–56, and the determination

reached by the Authority was that the preponderance of the evidence established

that she engaged in drug-related criminal activity, but we disagree. Under the Hill

standard, the conclusion that must be supported by “some evidence” is the factual

finding that supports the agency’s action, not its determination that the evidence

supports that finding under a standard of proof provided by an agency regulation.

See Hill, 472 U.S. at 457 (distinguishing the question whether “some evidence”

supports a decision as required by procedural due process from the question

whether the challenged “findings failed to meet evidentiary standards imposed by

state law”). Otherwise, a party asserting that a decision violated due process

because it was not based on evidence could effectively bootstrap his way into



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holding the agency liable for failing to issue a decision supported by evidence

sufficient under the standard of proof applicable to its proceedings by statute or

regulation.

      As we have explained, no procedural due process violation follows from an

agency’s failure to introduce evidence sufficient under the applicable standard of

proof. Although due process may require a particular standard of proof in a certain

kind of proceeding, see, e.g., Santosky v. Kramer, 455 U.S. 745, 747–48 (1982)

(holding that “[b]efore a State may sever . . . the rights of parents in their natural

child, due process requires that the State support its allegations by at least clear and

convincing evidence”), the Due Process Clauses do not forbid garden-variety

errors in applying standards of proof, regardless of the legal source of those

standards. As a result, we conclude that the decision to terminate Yarbrough’s

voucher easily passes muster under the “some evidence” standard.

      Yarbrough argues that procedural due process prohibits a housing authority

from rendering a termination decision based solely on unreliable and non-probative

hearsay, but we need not reach that issue. Nor must we decide whether procedural

due process requires some assessment of the reliability and probative value of

hearsay evidence. Yarbrough’s indictments and arrest records, especially in the

light of her own testimony, bear sufficient indicia of reliability and are adequately

probative to constitute “some evidence” in support of the Authority’s decision.



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Yarbrough admitted the arrests, acknowledged the pending drug charges, and did

not deny the underlying drug sales. Yarbrough’s testimony supported the reliability

of the hearsay evidence offered against her.

                               IV. CONCLUSION

      We AFFIRM the summary judgment in favor of the Authority.




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MARTIN, Circuit Judge, concurring:

      The Majority Opinion properly recites that the Decatur Housing Authority

did put forth some evidence in Sheena Yarbrough’s case to support its decision to

terminate her Section 8 housing voucher. I agree with the Majority, as well, that

the evidence offered by the Authority was enough to uphold its termination

decision under the standard set by Superintendent v. Hill, 472 U.S. 445, 105 S. Ct.

2768 (1985). I write separately, however, because I do not read Hill to foreclose

the application of the “substantial evidence” standard, as apparently the Majority

does. I think it important as well that the due process requirements in Hill are not

exhaustive, insofar as the Supreme Court described additional requirements in

Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963 (1974). On these points, I

respectfully disagree.

      While it is certainly true that “some evidence” is required to terminate

Section 8 housing vouchers under the Due Process Clause, I believe the Majority

Opinion goes too far when it suggests that Hill rejected the “substantial evidence”

standard. See Maj. Op. at 11–14. The Majority notes that Hill “explicitly contrasts

the ‘some evidence’ standard of review with ‘the stricter test of substantial

evidence.’” Id. at 11 (quoting Hill, 472 U.S. at 449, 105 S. Ct. at 2770). True, the

Hill Court did discuss both standards, but it observed that the question of “whether

the Due Process Clause requires that a disciplinary board’s findings of fact be



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reviewed under a more stringent standard” was not before it. Hill, 472 U.S. at

458–59, 105 S. Ct. at 2776 (Stevens, J., dissenting); see also id. at 459, 105 S. Ct.

at 2770 (observing that the Massachusetts Supreme Judicial Court did not decide

“whether the appropriate standard of review is ‘some evidence’ or the stricter test

of ‘substantial evidence.’”). I know rejection, and rejection of the substantial

evidence standard is not what the Supreme Court did. Nonetheless, the Majority

Opinion undertakes to answer the open question of what is the proper standard of

review and concludes that our precedent “invok[es] the ‘some evidence’ standard

employed by the Supreme Court in Hill.” Maj. Op. at 14. I regard this conclusion

as going beyond both Hill as well as our decision in Holley v. Seminole County

School District, 755 F.2d 1492 (11th Cir. 1985).

      Holley was decided months before Hill, and the purpose of this Court’s

review in Holley was merely to determine whether, in that case, there was “a

rational basis for the deprivation of an individual’s property.” Id. at 1499. Holley

said there was. See id. at 1499–1500 (holding that the testimony of several

witnesses “support[ed] the Board’s findings of ‘cause’ not to renew Holley’s

contract”). Holley did not conflate the “some evidence” and “substantial

evidence” standards. Id. Neither did it reject the “substantial evidence” standard.

Id. My reading of Hill and Holley does not support the conclusion that the

“substantial evidence” standard and the “some evidence” standard are one and the



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same, or that our Court has rejected the more demanding “substantial evidence”

standard.

      In my view, due process requires more than Hill’s “some evidence” standard

for the voucher-termination decision. The Majority Opinion suggests that Supreme

Court “precedents establish only that a procedure that permits decisions founded

on no evidence violates the Due Process Clauses.” Maj. Op. at 10 (emphasis

added). But this statement overlooks the additional requirements described in

Wolff, 418 U.S. at 563–67, 94 S. Ct. at 2978–80. As the Supreme Court clarified,

Hill “in no way abrogated” Wolff; rather, Hill should be considered “in addition

to” the earlier Wolff decision. Edwards v. Balisok, 520 U.S. 641, 648, 117 S. Ct.

1584, 1589 (1997). So, in addition to “some evidence,” due process in this

voucher-termination case also requires: (1) advance “written notice of the

charges”; and (2) “a written statement by the factfinders as to the evidence relied

on and reasons for the disciplinary action.” Wolff, 418 U.S. at 563–67, 94 S. Ct. at

2978–80 (quotation marks omitted) (describing procedures extended to parolees

facing revocation proceedings).

      I therefore concur in the Majority’s judgment that the Authority did put forth

some evidence in to support its decision to terminate Yarbrough’s Section 8

housing voucher, but not in the Majority Opinion’s propositions that Hill rejected




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the “substantial evidence” standard and that the due process requirements in Hill

are exhaustive.




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