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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 3, 2018)

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

PER CURIAM:




*
 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 indictments and evidence of an

arrest constitute sufficient evidence to support the decision of a public housing

authority to terminate housing subsidies provided under Section 8 of the Housing

and Community Development Act of 1937, 42 U.S.C. § 1437f. The Decatur

Housing Authority terminated Sheena Yarbrough’s housing voucher after it

learned that she had been arrested and indicted on two counts of unlawful

distribution of a controlled substance. A hearing officer found that there was

sufficient evidence to support the termination based on nothing more than evidence

that Yarbrough had been arrested and copies of the indictments.

      Yarbrough filed a civil-rights complaint against the Authority, 42 U.S.C.

§ 1983, in which she alleged that the termination of her housing voucher violated

the Due Process Clause of the Fourteenth Amendment and regulations

promulgated by the United States Department of Housing and Urban Development.

The district court granted summary judgment in favor of the Authority. It ruled that

the indictments and the evidence that Yarbrough had been arrested were sufficient

to prove that she engaged in drug-related criminal activity under a preponderance-

of-the-evidence standard, and that Yarbrough failed to establish that the

Authority’s procedures violated due process. We vacate and remand.




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                                I. BACKGROUND

      Sheena Yarbrough was a qualified participant in the Section 8 Housing

Assistance program operated in Decatur, Alabama, by the Authority under the

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

8 program provides low income families assistance with rental payments. 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). Indeed, the regulatory

requirement to refrain from drug-related criminal activity was incorporated into the

terms of Yarbrough’s agreement with the Authority. On April 6, 2011, she signed a

copy of a document issued by the Department of Housing and Urban Development

entitled “Obligations of the Participating Family,” which provided that “members

of the family may not engage in drug-related criminal activity.”

      In September 2012, the Authority learned from a newspaper article that

Yarbrough had been arrested on state charges for unlawful distribution of a

controlled substance. The Authority notified Yarbrough that it intended to

terminate her program assistance for participation in drug-related criminal activity.

Yarbrough denied any involvement in unlawful activity and requested a hearing. A

hearing officer found that the allegations were true and determined that

Yarbrough’s housing voucher should be terminated. But based on legal advice, the



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Authority decided that it would postpone its decision to terminate 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, returned two indictments against Yarbrough on charges of unlawful

distribution of controlled substances sold to an undercover police informant. After

Yarbrough reached an agreement with the prosecution to drop the charges, the

Circuit Court issued an order stating that “upon payment of court costs, [the] case

will be dismissed.” But Yarbrough’s agreement with the state did not deter the

Authority from resuming its proceedings to terminate her voucher. On October 8,

2015, the Authority sent Yarbrough a second notice of its intent to terminate her

participation in the Section 8 program. The notice alleged several grounds for

termination, including Yarbrough’s arrest and indictment for distribution of a

controlled substance.

      At Yarbrough’s request, the Authority held a second hearing to determine

whether her voucher should be terminated. After the hearing concluded, the

hearing officer issued a written decision that the Authority failed to establish

violations on all counts alleged in the notice except for the allegation that

Yarbrough “violated her agreement with the Authority and her lease by engaging

in drug-related criminal activity.” Based on the latter ruling, the hearing officer

upheld the Authority’s decision to terminate Yarbrough’s participation in the



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Section 8 program. His decision explained that the evidence of Yarbrough’s arrest

and indictments for two felony counts of unlawful distribution of a controlled

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

criminal activity. The hearing officer stated that Yarbrough presented “credible

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

hearing officer 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 civil-rights suit against the Authority, 42 U.S.C. § 1983,

in which she alleged that the Authority violated federal regulations and the Due

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

legally insufficient evidence and relying exclusively on hearsay. After discovery,

both parties moved for summary judgment. 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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                            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

      Yarbrough challenges the summary judgment in favor of the Authority on

two grounds. First, she contends that the hearing officer’s determination was

premised on insufficient evidence because the probable-cause determination

reflected in an indictment or an arrest does not prove that a person engaged in

drug-related criminal activity under the applicable preponderance-of-the-evidence

standard. Second, she argues that the hearing officer’s decision to credit unreliable

hearsay violated the Due Process Clause of the Fourteenth Amendment. We

conclude that Yarbrough’s first argument mandates reversal, so we need not reach

her alternative argument.

      Under the governing regulation, “[f]actual determinations relating to the

individual circumstances of the family” in a Section 8 termination hearing “shall

be based on a preponderance of the evidence presented at the hearing.” 24 C.F.R.

§ 982.555(e)(6). In Basco v. Machin, 514 F.3d 1177 (11th Cir. 2008), we

interpreted this regulation to establish that, in a proceeding to terminate benefits

received through the Section 8 program, a public housing authority “has the burden



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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

Section 8 voucher. Id. at 1182. Based on this interpretation, we held that a hearing

officer’s determination that Section 8 participants permitted an unauthorized

individual to reside in their unit was legally insufficient to establish a prima facie

case that the participant had actually done so. Id. at 1183–84. The only evidence

considered by the hearing officer consisted in two unauthenticated police reports

that failed even to use the same name to identify the unauthorized individual who

allegedly resided with the Basco family. Id. at 1183.

      Yarbrough maintains that the hearing officer’s determination that her

voucher should be terminated is invalid under Basco. The hearing officer charged

with reviewing the decision to terminate her voucher relied exclusively on her

indictments for unlawful distribution of a controlled substance and evidence of her

associated arrest. Yarbrough argues that because an indictment or valid arrest is

based only on a finding of probable cause, the evidence considered by the hearing

officer was insufficient to support a factual finding that she engaged in drug-

related criminal activity under the preponderance-of-the-evidence standard

applicable to Section 8 termination proceedings.

      The district court rejected this argument based on the endorsement in Kaley

v. United States, 571 U.S. 320 (2014), of the principle that a facially valid



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indictment “‘conclusively determines the existence of probable cause’ to believe

the defendant perpetrated the offense alleged.” Id. at 328 (quoting Gerstein v.

Pugh, 420 U.S. 103, 117, n.19 (1975)). Based on this premise alone, the district

court inferred that the indictments against Yarbrough “are legally sufficient to

establish by a preponderance of the evidence, as the hearing officer found, that

Yarbrough engaged in the alleged drug-related criminal activity.” We reject this

reasoning.

      A facially valid indictment is undoubtedly competent evidence of “a grand

jury's finding of probable cause to think that a person committed a crime,” Kaley,

571 U.S. at 338, but proof of a crime under a preponderance standard requires

more than a finding of probable cause. A probable-cause determination “does not

require the fine resolution of conflicting evidence that a reasonable-doubt or even a

preponderance standard demands, and credibility determinations are seldom crucial

in deciding whether the evidence supports a reasonable belief in guilt.” Gerstein,

420 U.S. at 121. That a grand jury determined that the evidence against Yarbrough

was sufficient to support a reasonable belief in guilt 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.




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        It makes no difference that the hearing officer relied on two indictments and

evidence that Yarbrough had been arrested instead of a single indictment. Three

probable-cause determinations do not add up to a finding that a person more likely

than not committed a drug-related crime. Probable cause “requires only the kind of

fair probability on which reasonable and prudent people . . . act.” Kaley, 571 U.S.

at 338 (citations and quotation marks omitted). But an affirmative answer to the

question of fair probability does not mean that the person more likely than not

committed the charged crime. Even if it is certain that there is probable cause to

believe that a person committed a crime, it still does not follow that the

preponderance of the evidence proves that he actually did so.

        Nor are we persuaded by the Authority’s response to Yarbrough’s challenge.

The Authority concedes that “the burden of proof in grand jury proceedings is

probable cause,” but argues that this fact “does not mean that indictments—tested

under cross examination at an informal hearing—cannot also establish that, more

likely than not, a recipient engaged in impermissible drug-related criminal

activity.” Cross-examination cannot transmute a document attesting only to the

existence of probable cause into evidence sufficient to ground a finding under a

preponderance standard unless the testimony of the witness adds some new

information over and above the bare fact that a probable-cause determination was

made.



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      We hold 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). Under Basco, we must vacate the summary judgment in favor of

the Authority.

                               IV. CONCLUSION

      We VACATE the summary judgment in favor of the Authority and remand

for further proceedings.




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WILLIAM PRYOR, Circuit Judge, concurring:

      I join the panel’s opinion in full because our precedent in Basco v. Machin,

514 F.3d 1177 (11th Cir. 2008), requires us to vacate the summary judgment in

favor of the Decatur Housing Authority. I write separately to explain why Basco is

inconsistent with Supreme Court precedent and our precedents and why it should

be overruled en banc.

      Basco invalidated the termination decision of a hearing officer of a local

public housing authority in a civil-rights action, 42 U.S.C. § 1983, on the ground

that the evidence was legally insufficient under the preponderance-of-the-evidence

standard for Section 8 termination hearings. Since then, we have overturned the

termination decisions of local housing authorities on the same ground on a semi-

regular basis in unpublished opinions. See, e.g., Lane v. Fort Walton Beach Hous.

Auth., 518 Fed. App’x 904 (11th Cir. 2013); Ervin v. Hous. Auth. of the

Birmingham Dist., 281 Fed. App’x 938 (11th Cir. 2008). The district courts in our

Circuit have followed our lead and done so as well. See, e.g., Goodman v. Hous.

Auth. of DeKalb Cty., No. 1:17-CV-504-TWT, 2018 WL 3972364 (N.D. Ga. Aug.

20, 2018); Taylor v. City of Decatur, No. CV-09-S-1279-NE, 2010 WL 8781926

(N.D. Ala. Dec. 2, 2010); Carter v. Montgomery Hous. Auth., No. 2:09-cv-971-

MEF-CSC, 2009 WL 3711565 (M.D. Ala. Nov. 3, 2009). But we have yet to

articulate an explanation of why we are entitled to review the garden-variety errors



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of local housing authorities under section 1983, which provides a cause of action to

redress violations of rights created by the Constitution and federal statutes, not a

freestanding grant of appellate jurisdiction to review the decisions of local agencies

for any and all errors.

      We have failed to provide an account of why we are entitled to review the

factual findings of public housing authorities because there is no explanation to be

found. No provision in the Housing Act of 1937, 42 U.S.C. §§ 1437–1437z-10

creates an individual right to a termination decision based on a finding under a

preponderance standard. And no principle of constitutional law licenses a federal

court to set aside a local housing authority’s welfare-termination decisions for want

of legally sufficient evidence. It follows that there is no cause of action to

challenge the adequacy of the factual determinations of the hearing officers of

public housing authorities under section 1983. We were wrong in Basco to

presume otherwise.

      A. The Housing Act Does Not Create an Individual Right to A Hearing
                      Enforceable Through Section 1983.

      The Supreme Court explained decades ago that “[i]n order to seek redress

through § 1983 . . . a plaintiff must assert the violation of a federal right, not

merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340

(1997). The source of the right to a determination founded on the preponderance

of the evidence in Section 8 termination hearings is a regulation, 24 C.F.R.

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§ 982.555(e)(6), which provides that “[f]actual determinations relating to the

individual circumstances of the family” in a termination hearing “shall be based on

a preponderance of the evidence presented at the hearing.” But we have rejected

the proposition that “in the absence of a federal right created by Congress, an

implementing regulation can create a right enforceable under § 1983,” so this

regulation cannot in itself supply a right enforceable through section 1983. Harris

v. James, 127 F.3d 993, 1011 (11th Cir. 1997). Instead, our precedents dictate that

a right created by regulation is enforceable through section 1983 only if there is a

federal statute that “itself confers a specific right” and the regulation “merely

further defines or fleshes out the content of that right.” Id. at 1009. If a regulation

“defines the content of a statutory provision that creates no federal right” or “if the

regulation goes beyond explicating the specific content of the statutory provision

and imposes distinct obligations in order to further the broad objectives underlying

the statutory provision,” the regulation is “too far removed from Congressional

intent to constitute a ‘federal right’ enforceable under § 1983.” Id.

      It follows that the right established by the applicable regulation, 24 C.F.R.

§ 982.555(e)(6), is enforceable through section 1983 only if it explicates a federal

right conferred by the text of the Housing Act. One provision in the Housing Act

addresses the procedures governing voucher termination hearings, 42 U.S.C.

§ 1437d(k). And it provides that “[t]he Secretary [of Housing and Urban



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Development] shall by regulation require each public housing agency receiving

assistance under this chapter to establish and implement an administrative

grievance procedure” in which tenants will (1) “be advised of the specific grounds

of any proposed adverse public housing agency action”; (2) “have an opportunity

for a hearing before an impartial party upon timely request”; (3) “have an

opportunity to examine any documents or records or regulations related to the

proposed action”; (4) “be entitled to be represented by another person of their

choice at any hearing”; (5) “be entitled to ask questions of witnesses and have

others make statements on their behalf”; and (6) “be entitled to receive a written

decision by the public housing agency on the proposed action.” Id.

      Section 1437d(k) does not create a right to a hearing before a housing

authority may terminate a recipient’s voucher. A statute can create an individual

right enforceable through section 1983 only if it “unambiguously impose[s] a

binding obligation on the States.” Blessing, 520 U.S. at 341. But section 1437d(k)

of the Housing Act does not lay any duty on any state actor. Instead, it lays a duty

on the Secretary. True, the obligation imposed on the Secretary is a duty to

develop regulations “requir[ing] each public housing agency . . . to establish and

implement an administrative grievance procedure” that satisfies the statutorily

mandated criteria, 42 U.S.C. § 1437d(k), which means that the duty imposed on

the Secretary is a duty to impose obligations on state actors. But that formula is not



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enough. Rights enforceable through section 1983 must be the correlates of

obligations imposed on state actors by Congress. As the Supreme Court has

explained, “the initial inquiry” in determining whether a statute creates an

individual right enforceable through section 1983 “is no different from the initial

inquiry in an implied right of action case, the express purpose of which is to

determine whether or not a statute ‘confer[s] rights on a particular class of

persons.’” Gonzaga v. Doe, 536 U.S. 273, 285 (2002) (quoting California v. Sierra

Club, 451 U.S. 287, 294 (1981)). And “[l]ike substantive federal law itself, private

rights of action to enforce federal law must be created by Congress.” Alexander v.

Sandoval, 532 U.S. 275, 286 (2001). “Language in a regulation may invoke a

private right of action that Congress through statutory text created, but it may not

create a right that Congress has not.” Id. at 291. “Agencies may play the sorcerer’s

apprentice but not the sorcerer himself.” Id.

      A congressional instruction to impose a duty on a state actor is not itself an

act of imposing a duty on the states. In declining to impose a duty directly on

public housing authorities in the text of the Housing Act, Congress also declined to

create any statutory right to a termination hearing that could be enforced through

section 1983. So the corresponding regulation, 24 C.F.R. § 982.555(e)(6), “defines

the content of a statutory provision that creates no federal right,” Harris, 127 F.3d




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at 1009, instead of fleshing out the content of a right conferred by Congress.

Harris, 127 F.3d at 1009.

      Even if we were to assume that section 1437d(k) of the Housing Act creates

an individual right to a hearing that comports with the statutory criteria it

enumerates, it would not follow that the preponderance standard created by the

applicable regulation, 24 C.F.R. § 982.555(e)(6), “merely further defines or fleshes

out the content of that right.” Harris, 127 F.3d at 1009. The statutory criteria

require (1) notice of the grounds for the housing authority’s proposed action, (2) an

opportunity for a hearing before an impartial officer, (3) an opportunity to examine

any documentary evidence related to the proposed action, (4) an entitlement to be

represented in the hearing by a person of one’s choice, (5) an entitlement to

confront adverse witnesses and to present the testimony of one’s own witnesses,

and (6) a written decision. 42 U.S.C. § 1437d(k). None of these provisions could

plausibly be “fleshed out” into a requirement that the hearing officer render his

decision based on the preponderance of the evidence. So on the assumption that

there is a federal right to a termination hearing established by section 1437d of the

Housing Act, the corresponding regulation, 24 C.F.R. § 982.555(e)(6), is best

understood as one that “imposes distinct obligations in order to further the broad

objectives underlying the statutory provision.” Harris, 127 F.3d at 1009.




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      Simply put, the Housing Act does not create a federal right to a termination

hearing in which decisions must be based on the preponderance of the evidence.

The Act neither does so in itself nor does so in conjunction with the applicable

regulation, 24 C.F.R. § 982.555(e)(6). If Basco has a foundation, it must be found

elsewhere.

         B. Basco’s Holding Is Not Grounded in the Due Process Clause.

      The problems attendant to an attempt to explain Basco as a decision

grounded in a statutory right created by the Housing Act might lead one to wonder

whether its holding might be saved by locating a rationale for it in the Due Process

Clause. Indeed, our unpublished opinions applying Basco have taken steps down

this path. In Ervin, we suggested that Basco is grounded in the principle that a

housing authority violates “procedural due process rights under the Fourteenth

Amendment” when it “fail[s] to comply with” federal “regulations governing

benefits termination procedures.” 281 Fed. App’x at 939. Lane took a different

tack and proposed that Basco applied an apparently sui generis “due process

principle” prohibiting adverse administrative determinations based on evidence

that is obviously insufficient to satisfy the burden of proof applicable in an

administrative hearing. 518 Fed. App’x at 912. But neither of these theories is

workable, and there is no realistic prospect of salvaging Basco by reinterpreting it

as a decision grounded in the Due Process Clause. There is no principle of due



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process that guards against an agency decision that deprives a claimant of welfare

benefits based on insufficient evidence. Allow me to explain.

      In basing a decision on evidence that is insufficient under the applicable

regulation, 24 C.F.R. § 982.555(e)(6), a public housing authority commits two

analytically distinct errors: (1) depriving a person of a benefit based on insufficient

evidence under a preponderance standard, and (2) violating the regulation that

requires it to render a decision that is valid under that standard of proof. Our

attempts to work out a due process rationale for Basco have seized upon one of

these errors or the other. In Lane, we emphasized the first error and held that

allegations that “the evidence relied on by the Hearing Officer was not legally

sufficient and could not, consistent with procedural due process principles, support

an administrative decision” were sufficient to survive a motion to dismiss. 518

Fed. App’x at 912. In Ervin we focused on the second error and held that there was

a triable issue of fact as to whether the termination hearing at issue “did not

comply with the administrative regulations applicable to Section 8 proceedings.”

281 Fed. App’x at 939.

      Neither of these regulatory errors constitutes a violation of the Due Process

Clause. There is no principle of procedural due process prohibiting an agency’s

hearing officers from predicating an adverse administrative determination on

insufficient evidence. A welfare claimant who alleges that he was deprived of



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welfare benefits on the basis of insufficient evidence does not “claim[] that he was

denied adequate process,” but instead “that he was improperly denied his property

interest, despite the fact that he received process.” Caswell v. City of Detroit Hous.

Comm’n, 418 F.3d 615, 621 (6th Cir. 2005). But as the Supreme Court has

explained, “the Due Process Clause has never been construed to require that the

procedures used to guard against an erroneous deprivation of a protectible

‘property’ or ‘liberty’ interest be so comprehensive as to preclude any possibility

of error.” Mackey v. Montrym, 443 U.S. 1, 13 (1979). In other words, “[t]he Due

Process Clause simply does not mandate that all governmental decisionmaking

comply with standards that assure perfect, error-free determinations.” Id.

      Nor would it help to pivot to the second error, as we did in Ervin, and adopt

the view that a housing authority violates “procedural due process rights under the

Fourteenth Amendment” when it “fail[s] to comply with” federal “regulations

governing benefits termination procedures.” 281 Fed. App’x at 939. This rationale

is an application of a theory that we have repeatedly rejected, namely, that an

agency violates due process if it fails to abide by its own procedural regulations in

an administrative adjudication. See ACLU of Fla., Inc. v. Miami-Dade Cty. Sch.

Bd., 557 F.3d 1177, 1229 (11th Cir. 2009) (The doctrine “that ‘an agency must

follow its own rules in order to avoid infringing due process rights,’ cannot be

grounded in the law of this circuit.”) (citation omitted); Smith v. Georgia, 684 F.2d



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729, 732 n.6 (11th Cir. 1982). Under our precedents, an agency’s failure to follow

its own procedural regulations gives rise to a due process violation only if the

procedures the agency actually applied in lieu of those required by its regulations

failed to provide what the Due Process Clause itself requires: “notice and an

opportunity to be heard.” ACLU of Fla., 557 F.3d at 1229. So the theory we floated

in Ervin could support our holding in Basco only if rendering an adverse

determination in a welfare hearing based on insufficient evidence is itself a

violation of procedural due process. This idea, of course, is the same one we

proposed in Lane. So at bottom, the theory we outlined in Ervin reduces to a

variant of the theory proposed in Lane. It fails for the same reason: there is no

procedural-due-process right to error-free adjudication.

      There is another potential constitutional foundation for Basco that we have

not considered in our decisions—substantive due process—but it is a nonstarter.

Under that doctrine, “the Due Process Clause specially protects those fundamental

rights and liberties which are, objectively, ‘deeply rooted in this Nation's history

and tradition.’” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (quoting

Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)).

But the Supreme Court has made clear that “[w]elfare benefits are not a

fundamental right, and neither the State nor Federal Government is under any sort

of constitutional obligation to guarantee minimum levels of support.” Lavine v.



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Milne, 424 U.S. 577, 584 n.9 (1976). So there is no sense in which the substantive

protections of the Due Process Clause can guard a welfare recipient from

termination based on erroneous application of the requisite standard of proof.

      In short, not one of the potential constitutional rationales for our holding in

Basco is at all plausible. The failure of our attempts to find a secure footing for

Basco in the text of the Housing Act and principles of due process suggests that in

the final analysis, our decision in that appeal was lawless. Undoubtedly, an

injustice is done when a housing authority terminates the benefits of a deserving

claimant on the basis of manifestly inadequate evidence. But in the absence of a

congressional decision to confer an individual entitlement to a termination decision

based on legally sufficient evidence, the correction of the garden-variety mistakes

of local housing authorities is not within our authority. There is no constitutional

principle that secures a person against the risk that he will be deprived of a benefit

based on an erroneous factual determination. A claim alleging that a deprivation of

a protected property interest was not proven to the legally-mandated standard of

proof is quintessentially substantive, not procedural, and there is no fundamental

right to receive welfare benefits that could ground a substantive-due-process

challenge to such an administrative decision.

      We should clean up our jurisprudence in this area because it cannot be

squared with the Supreme Court’s precedent or our own. We should stop



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entertaining complaints by recipients of welfare benefits who have no cause of

action under section 1983. Instead, we should overrule our decision in Basco en

banc.




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