from the United States District Court for the Northern
District of Alabama D.C. Docket No. 5:15-cv-02325-AKK
ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM
PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, BRANCH, and
GRANT, Circuit Judges. [*]
MARTIN, CIRCUIT JUDGE
years, this Court has allowed district courts to entertain 42
U.S.C. § 1983 suits alleging wrongful termination of
housing benefits under the Housing Act of 1937, 42 U.S.C.
§ 1437 et seq., where the housing authority failed to
prove its case for termination by a preponderance of the
evidence. See Basco v. Machin, 514 F.3d 1177,
1183–84 (11th Cir. 2008). But today we recognize that
neither Basco nor its progeny explained how a
regulation establishing the preponderance of the evidence
standard can give rise to a private cause of action under
§ 1983. With regard to agency regulations, the Supreme
Court has been clear that although "[a]gencies may play
the sorcerer's apprentice," they cannot usurp the
role of "the sorcerer himself." Alexander v.
Sandoval, 532 U.S. 275, 291, 121 S. Ct. 1511, 1522
(2001). By this opinion, our Court restores the apprentice to
its rightful place.
Court granted rehearing en banc to consider whether
Basco was correct in granting a private right of
action under § 1983 to people contesting the termination
of their housing benefits, with the requirement that the
termination decision be based on a preponderance of the
evidence. The regulation establishing the authorities'
burden of proof in termination proceedings neither defines
nor fleshes out a right established by the Housing Act. We
thus conclude Basco was wrongly decided in this
regard. As a result, we overrule Basco and its
progeny inasmuch as those cases held that the Housing Act or
its implementing regulations create a right enforceable by
§ 1983 to a termination decision made by the
preponderance of the evidence.
Housing Act assists low-income families in getting a safe and
affordable place to live. See 42 U.S.C. §
1437(a). To that end, one section of the Act provides relief
through "what is known as the Section 8 housing
program." Cisneros v. Alpine Ridge Grp., 508
U.S. 10, 12, 113 S. Ct. 1898, 1900 (1993). The Section 8
program subsidizes private landlords who rent to low-income
tenants by authorizing housing authorities to pay the
difference between the tenant's contribution and the full
cost of rent. Id.
Yarbrough, the plaintiff in this case, was a beneficiary of
the Section 8 housing program. While she was living in
Section 8 housing, during September of 2012, the police
arrested Ms. Yarbrough on drug-related charges. The Decatur
Housing Authority (the "Authority") learned about
her arrest from a newspaper and notified Ms. Yarbrough it
intended to terminate her Section 8 housing benefits. Ms.
Yarbrough requested and received an informal hearing, and a
hearing officer upheld the Authority's decision to
terminate her benefits.
the decision in its favor, counsel advised the Authority to
continue to subsidize Ms. Yarbrough's rent until her
criminal charges were resolved. Roughly six months after her
arrest, Ms. Yarbrough was indicted on two charges of unlawful
distribution of a controlled substance, in violation of Ala.
Code § 13A-12-211. These charges remained outstanding a
little less than two years when the State agreed to dismiss
them "upon payment of court costs." But Ms.
Yarbrough was not out of the woods yet.
the same time as the State's agreement, the Authority
received a tip accusing Ms. Yarbrough of new violations of
the Section 8 housing program. And on October 8, 2015, the
Authority sent Ms. Yarbrough a new notice advising her of its
intent to terminate her Section 8 housing benefits. This
time, the Authority sought to terminate Ms. Yarbrough's
benefits based on her indictments as well as her alleged
failures to notify the Authority of a change in family
composition, to report her household income, and to make
Yarbrough again requested a hearing, and one was held on
November 10, 2015. The Authority was represented by a
caseworker named Kenyetta Gray, who introduced copies of Ms.
Yarbrough's indictments into evidence. Ms. Gray also
testified about the Authority's communications with Ms.
Yarbrough. The Hearing Officer reviewed the testimony and the
record, then affirmed the Authority's decision to
terminate Ms. Yarbrough's benefits. The Hearing Officer
rejected three of the four grounds offered by the Authority
in support of termination. However, the Officer found that
Ms. Yarbrough's indictments and arrest were enough to
prove by a preponderance of the evidence that she
"violated her agreement with the Authority and her lease
by engaging in drug-related criminal activity."
than a month later, Ms. Yarbrough filed the 42 U.S.C. §
1983 suit that resulted in this appeal. She asked the U.S.
District Court to restore her benefits and enjoin the
Authority from evicting her. She alleged that the
Authority's decision to terminate her benefits violated
both federal regulations as well as her due process rights
because the decision was based on legally insufficient
evidence and unreliable hearsay. The District Court allowed
discovery, and once that was done, the parties filed
cross-motions for summary judgment. The Court granted the
Authority's motion for summary judgment and denied Ms.
Yarbrough's motion for the same. The District Court
rejected Ms. Yarbrough's argument that the indictments
were unreliable hearsay and found that they were
"legally sufficient to establish by a preponderance of
the evidence . . . that Yarbrough engaged in the alleged
drug-related criminal activity."
Yarbrough timely appealed the District Court's decision
to our Court. Relying on Basco, a panel of this
Court agreed with Ms. Yarbrough and reversed the District
Court's grant of summary judgment. The panel opinion held
that as a matter of law, "[t]hree probable-cause
determinations [supporting one arrest and two indictments] do
not add up to a finding that a person more likely than not
committed a drug-related crime." Yarbrough v. Decatur Hous. Auth.,
905 F.3d 1222, 1226 (11th Cir. 2018) (per curiam),
reh'g en banc granted, op. vacated, 914 F.3d
1290 (11th Cir. 2019).
Authority soon filed a petition for rehearing en banc urging
our Court to revisit Basco's holding. A majority
of the voting judges on this Court granted the petition, and
the panel opinion was vacated as a result. See Yarbrough
v. Decatur Hous. Auth., 914 F.3d 1290 (11th Cir. 2019)
(en banc). The only question now before this en banc Court is
whether to overrule Basco's holding that there
is an individual right under the Housing Act and its
implementing regulations, enforceable through § 1983, to
a decision based on a ...