have them here this year approach here today that this court to reverse the district court in two basic grounds the first is that the in this case the public housing authority as the affirmative duty  aphasia case before they can proceed before there's any other question of the proponents of evidence anything else that happens and we don't believe they did that and the second issue is that the only evidence offered by the housing authority is an indictment which is an accusatory document under alabama law it is not a finding of guilt it's not a finding of fact it's simply a finding that there is reasonable cause to go before the trial a lot about this case tell you where i'm coming from that i don't think that there's there's a right created by federal law to have us review evidence to terminations of hearing officers but for public housing authorities oh and that right if you follow the blessing case law alexander versus sandra ball all that that has to be a step statutory it can't be regulatory conduct sprinkler presser about that's pretty clear but but we're bound by basket ok so for the time being the president's on your side surprisingly i agree with you i don't think that your job is to review the evidence in this case i don't think that it's simply you're not this is  candor about something that concerns we had seems to me taking got a strong argument that the indictment and proper rest records which are based on probable cause to terminations can't support a preponderance fin that federal judges can make preponderance findings of say let's say something like a ballet should have supervised release based on nothing more than an end i caressed record i don't want to do something that would president for our circuit gives you the right to the review of this determination is passed it's an eleventh circuit certainly your honor although i think in i will say around the country and i don't have there  couple of different ways one he could argue that housing authority violates procedure well due process rights when it violates federal regulations but we've we've in due process but what's the best if we take bets go out about what would be the best authority for that but i have your honor and goldberg if you're going to have some sort of system before you terminate people from in the supreme court determined that there are some sort of property interest and the benefits if you're going to take those benefits you have to have some sort of you know he says substantive group process because the fact that the supreme court ruled that there are no there is no fundamental right to welfare benefits it can't be substantive due process the process your honor goldberg says there's a property interest in a property before that stake and deprive you of the property they have to give you some sort of due process and problem is that is the supreme court ruled in mackey versus montreux that the due process clause has never been construed to require that procedures used to guard against deprivation of a protectable property or liberty interest be so comprehensive as to preclude any possibility impair the due process cost simply does not mandate all governmental decision making compiled with standard assures perfect care free determinations well and i agree your honor and i think that that's i think that it's true and i think that again you could bring police officers in to testify these hearings there could be witnesses who come and testify and they could reach the wrong decision certainly can that be with the absence of any witness testimony or anything else well your honor first i would say that this court not reached that issue because there's other evidence in this record beyond the ind ah there's the testimony of the tenor herself at the hearing your honor you know what did she say that would support the determination she did not have booker fit to memorize if you did address the allegations that had been advanced against her with authority representative i don't know how that helped she don't know about a finding that she had in gauged in drug related activity well i think it context your honor when the underlying terminations day stone age many criminal activity he substantial evidence finding a preponderance finding because that is relegated to the fact finder this court in other contexts reviewing at least federal administration action is hill that its review is to determine whether substantial it exists on the record as a whole to some and to be substantial evidence that would support a finding that it was more likely than not that individual having gauged in drug related activity and all the hearing officer has to just don't see well the statutory right you know to invoke the authority of the federal court comes from yes daryn and we would argue still assumes that but i don't know where it comes from goldberg and it's inconsistent with the implementing regulations goldberg says in talking about procedural due process requirements that must be adhered to in pre term a nation evidentiary hearings informal procedures will in only the housing authorities presentation of two and dimes in their case here were also a need to look at the rest of the hearing in which the hearing officer did make a credibility determination about the tenant in another another matter not on might be dealing with a different question had she invoked her fifth amendment right and if that could be used against her but she did not and she did not address or deny or in any way refute the the allegation that she had engaged in drug related criminal activity and hearsay might maybe so but i don't know what i asked was if she doesn't testify one way or the other about whether she engaged in drug related activity so she did she does lying that might also be substantial evidence but when she doesn't do either i don't know how the absence of testimony supports a bunny or outside what you're saying there isn't and there's and had to have about the drug related activity there's nothing to judge her credibility about that is she right i think your testimony that there was an agreement although not directly relating to the underlying conduct did relate to the allegation that suggest that she had made any you know assertion about that yes i would say however that if there is a burden to be imposed on the housing authorities case in chief in th situation which are we disagree with to the extent basket holds that it would be to come forth with substantial evidence and to determine when he hearsay can comprise substantial evidence this court has looked to the jams factor for factor me they issued an indictment and as a matter of law that indictment only required them to make a determination of probable cause right now brett that's correct need think an indictment would support a finding by hearing officer under a proper under a beyond a reasonable doubt standard no i would say however that what about clear and convincing evidence i think a lot of that will depend on the crime charged what's in the indictment my argument would be a lot easier if we had to rush reports that have been presented hearing options case but they weren't so we do have the indictments but i think as you get closer and closer to probable cause which preponderance of certainly closer than clear and convincing and beyond reasonable doubt on the right facts and dimes can meet that standard and i would add to the extent this court does determine it can reveal what this agency did its bar its scope or abuse substantial evidence not preponderance to the extent the evidence rose from substantial to proponents that was in the province of the fact finder but probably the substantial evidence here is a probable cause to begin by noting that all public housing was created as part of the brooke amendment it started in the late thirty's part of the great depression trying to trying to help people towards the end of that so all the implementing regulations in this case all the   to the administrative agency the one of the things i want to know is that again even in oral arguments the housing authority is trying to shift the burden back over to  like basque zero and even even the regulation indicate that is their burden to prove and they say well why didn't miss yarbrough come and talk about it she was present the housing authority has the like it was their chance to prove their case that she was there to answer any questions they officer said i think your mind would that constitute sufficient evidence to terminate i don't believe so your honor and basically i don't believe what you said in the context of criminal trials where the government has the burden of proof beyond a reasonable doubt that when the defendant takes the stand and denies hunder the criminal activity not only can the fact finder disbelieve the testimony but can take it as substantive evidence of guilt since we have said we have held that many many many times why couldn't the hearing officer to the reason that they couldn't do that is because in that in this  the individual denied you know they denied the claims they were actually asking those cats in those cases by the housing authority what was going on and in those cases the eleventh circuit has said you cannot like that under reviewing evidence as a reasonable person was accept as adequate to support a conclusion would a reasonable person take whatever evidence is being offered to support a conclusion i go through american tradition who would that the indictment is nothing more than a chance to prove beyond a reasonable doubt and bring up a trial where a person maybe that's what happened she said they're about to be dismissed the hearing officer disbelieve that  burden in the criminal case would have been beyond a reasonable doubt so the fact that they had dismissed it in criminal court didn't necessarily mean that that it wouldn't be a it will be proved in the administrative hearing but they're going to say what did prove it ok