Nozzi

ORDER

The memorandum disposition and concurrence filed on March 21, 2011, are hereby withdrawn. The clerk shall file the attached memorandum disposition and concurrence in their place.

The parties shall have fourteen days from entry of the superseding memorandum disposition to file petitions for rehear *541 ing or petitions for rehearing en banc in the above-captioned matter.

IT IS SO ORDERED.

MEMORANDUM **

Plaintiffs Michael Nozzi and Nidia Pe-laez, putative class representatives of recipients of federal housing assistance payments under the Section 8 Housing Voucher Program, 42 U.S.C. § 1437f(o), and the Los Angeles Coalition to End Hunger and Homelessness (collectively “plaintiffs”) appeal the district court’s dismissal of two claims and grant of summary judgment in favor of defendants Housing Authority of the City of Los An-geles (“HACLA”), which administers the Section 8 Program, and its Executive Director, Rudolph Montiel, on other claims arising from defendants’ failure to provide adequate notice of its planned reduction of the voucher payment standard (‘VPS”), which is used to calculate plaintiffs’ monthly housing assistance payments. Because the district court…

concurring.

I agree with the panel that plaintiffs have a property interest in Section 8 benefits. And I also agree that this property interest is protected by the constitutional guarantee of due process. I write separately only to clarify the question left open for the district court to determine on remand: What process was due?

“[0]nce a substantive right has been created, it is the Due Process Clause which provides the procedural mínimums, and not a statute or regulation.” Geneva Towers Tenants Org. v. Federated Mortg. Investors, 504 F.2d 483 , 489 n. 13 (9th Cir. 1974). Regulations like those referenced in the memorandum disposition can be useful in deciding whether or not there is a protected property interest. But they are not the source of the procedural protections. For this reason the district court was correct to find that plaintiffs have no constitutional right to a year’s worth of benefits after being told of a change in the VPS. On remand, the district court should determine what process is due by considering the factors in Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), without regard to the procedural protections in the…