The Eleventh Circuit has overruled Basco v. Manchin, 514 F.3d 1177 (11th Cir. 2008) and held that federal law does not empower housing choice voucher (Section 8) holders to bring civil rights claims under 42 U.S.C. §1983 to contest wrongful termination of benefits by a housing authority. Yarbrough v. Decatur Housing Auth., 2019 WL 3521728 (11th Cir. 2019). In this case, the hearing officer determined that the arrest and indictment of the tenant for drug-related offenses was enough to establish by a preponderance of the evidence that the tenant was no longer legally entitled to receive Section 8 subsidies for housing. The tenant brought a §1983 claim in federal court arguing that the evidence was insufficient to prove that she was using or selling drugs and that a federal regulation interpreting the Federal Housing Act, 42 U.S.C. §1437 et seq., entitled here to continue receiving benefits unless there was sufficient evidence to prove by a preponderance of the evidence that she was unqualified to receive benefits.

A three-judge panel ruled that three probable cause determinations are not enough to prove a drug-related offense by a preponderance of the evidence, given that probable cause can be shown on less than a 50-50 chance that the offense occurred. The case was reheard en banc and the 11th Circuit overturned the ruling of the panel and overruled Basco.

Section 1983 provide a remedy if one can show deprivation of a federal right by someone acting under color of federal law. The Federal Housing Act requires an administrative grievance process and a right

“to receive a written decision by the public housing agency on the proposed action.”42 U.S.C. 1437d(k)(6). That provision is the basis of a federal regulation, 24 C.F.R. § 982.555(e)(6), which provides that “[f]actual determinations relating to the individual circumstances of the family shall be based on a preponderance of the evidence presented at the hearing.Prior courts had held that a written decision must provide reasons and those reasons must be sufficient to justify the loss of benefits and that will not be the case unless the wrongful conduct can be proven by a preponderance of the evidence. See, e.g., Stevenson v. Willis, 579 F. Supp. 2d 913, 922–23 (N.D. Ohio 2008); Gammons v. Mass. Dep’t of Hous. & Cmty. Dev., 523 F. Supp. 2d 76, 84 (D. Mass. 2007). The Eleventh Circuit disagreed and held that the right to a written decision does not say anything about the standard of proof so the regulation requiring proof by a preponderance of the evidence is beyond the power of the agency.