Sheena Yarbrough v. Decatur Housing Authority , 905 F.3d 1222 ( 2018 )

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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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