(dissenting) :

These tenants present a sympathetic case. Rent increases beyond their means threaten them with the loss of the housing they now enjoy, and the prospects are bleak for their finding adequate replacements. Their plight is of no less concern because it is shared by tens of thousands of other tenants whose incomes have not kept pace with spiraling inflation and to whom no recourse to the procedural protections of the Fifth and Fourteenth Amendments is available because neither a state nor the federal government is significantly involved in their housing arrangements. The Supreme Court has made it clear, however, that the fact alone that one suffers grievous loss because of a governmental act does not give the injured person a right to . prior notice and hearing. (Compare Board of Regents v. Roth (1972) 408 U.S. 564 , 92 S.Ct. 2701 with Joint Anti-Fascist Refugee Committee v. McGrath (1951) 341 U.S. 123, 168 , 71 S.Ct. 624 (Frankfurter, J., concurring).) Furthermore, these tenants are not the only low and moderate income housing consumers with interests in the outcome of this controversy; other such housing consumers will be adversely affected if these tenants prevail. Sympathy for these plaintiffs, therefore, cannot substitute for careful analysis of the nature and the legal consequences of their interests.

I agree with the First and Second Circuits and with the majority in the cases at bench that the tenants have no statutory right to notice and an evidentiary hearing anteceding rental increases (Hahn v. Gottlieb 1st Cir. 1970) 430 F.2d 1243 ; Langevin v. Chenango Court, Inc. (2d Cir. 1971) 447 F.2d 296 .) If the tenants are to have a right, it must be founded on the Constitution. I also agree with my brothers that the federal government is sufficiently enmeshed in the housing projects before us that the Fifth Amendment can be invoked. (See Public Utilities Comm’n v. Pollak (1952) 343 U.S. 451 , 72 S.Ct. 813 ; Adams v. Southern California First Nat’l Bank (9th Cir. 1974) 492 F.2d 324 , 340 (Hufstedler, J., dissenting from denial of hearing en banc).) However, I disagree that the nature of the interests asserted by these tenants is such that the Fifth Amendment can be applied to require their landlords or the Government to give them notice and opportunity to be heard before rental increases can be approved and effected.

I.

The tenants have a right to prior notice and hearing only if they have “a legitimate claim of entitlement” to the governmentally conferred benefit. (Board of Regents v. Roth, supra, 408 U.S. at 577 , 92 S.Ct. 2701 .) The search for a definition of entitlement is elusive because the concept has only recently emerged and in its present formative stage its features are not fully discernible. To say that interests are entitlements only if they are property interests (see id.) is not a useful definitional tool because the term “property” embraces multiple concepts that have differing consequences depending upon the kind of “property” involved and the setting in *494 which the concepts are invoked. 1 In the entitlement context, the property label does little more than alert the reader to the court’s conclusion that, whatever entitlement is, it is within the protection afforded by the due process clauses of the Fifth and Fourteenth Amendments. The appellation provides no assistance in deciding what kinds of interests in gov-ernmentally conferred benefits can become entitlements.

Although comprehensive definition of the entitlement concept is not yet possible, the contexts in which prior notice and hearing have or have not been required provide guidance in determining the kinds of interests that are entitlements. An interest that gives rise to an entitlement is always a conditional interest, 2 but not all conditional interests in governmental benefits give rise to entitlements. To create an entitlement, the law must remove the decision to grant the benefit from agency discretion. (See, e. g., Arnett v. Kennedy (1974) 416 U.S. 134, 181-182 , 94 S.Ct. 1633 , 40 L.Ed.2d 15 (op’n of White, J.) (government employment terminable at will of government not subject to prior notice and hearing).)

It is not sufficient, however, that there be a legal requirement that mandates conferral of the benefit; the legal requirement must be one that the beneficiary may insist upon at a hearing. (See Perry v. Sindermann (1972) 408 U.S. 593, 601 , 92 S.Ct. 2694 .) Every remedial statute directly and indirectly confers benefits on numerous people. Although conferral of an actual benefit may be essential to the creation of an entitlement, not all recipients of actual benefits have entitlements. Benefits arising from a statute that can become entitlements should be restricted to those benefits conferred on those beneficiaries to whom Congress intended to extend some kind of enforceable interest or, to put it slightly differently, to whom Congress intended to create a governmental obligation. 3

Thus, a unilateral expectation of continued conferral of a benefit is not an entitlement. (See Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. 2701 .) The majority errs in implying that an expectation that is reasonable in the light of the purpose of the law from which the benefit flows is an entitlement. Reasonableness of an expectation in absence of some kind of binding legal requirement (cf. Restatement of Contracts § 90) is not enough to generate an entitlement. (Cf. Perry v. Sinder-mann, supra, 408 U.S. at 601-602, 92 S. Ct. 2694 .) The governmental obligation may arise from statute, contract, or common law. (See id.) It may be explicit, or it may be implicit, as for example, a legal obligation based on implied contract (see id.; cf. Morrissey v. Brewer (1972) 408 U.S. 471 , 92 S.Ct. 2593 ), or on a statutory scheme that, by granting power to terminate benefits under *495 certain circumstances, implicitly disallows termination in all other circumstances. (S ee id.; Goldberg v. Kelly, supra, 397 U.S. 254 , 90 S.Ct. 1011 .)

The nature of due process, however, indicates that entitlements involve a component in addition to the existence of an enforceable right. Due process is a practical concept; prior notice and hearing are not required when a hearing would be pointless. The purpose of a prior evidentiary hearing in the entitlement context is to resolve those questions of fact upon which a controversy turns; if there are no material issues of fact to be resolved, a prior evidentiary hearing to determine the existence of facts is meaningless, and the very purpose of requiring procedural due process guarantees evaporates. (See K. Davis, Administrative Law Treatise § 7.01 (1958 & Supp.1970); cf. Greene v. McElroy (1959) 360 U.S. 474, 496 , 79 S.Ct. 1700 , 3 L.Ed.2d 1377 .) The substantive law from which the benefit springs of course determines what factual issues are material. (See, e. g., J. Wigmore, Evidence § 2, at 6-7 (3d ed. 1940).) For a fact to be material, there must be a legal requirement that the benefit be conferred if the fact is established. Unless such a legal requirement exists, there is nothing meaningful for an evidentiary hearing to resolve. Unless the law requires that consequences follow from the proof of a fact, that fact is immaterial to resolution of a conflict; whether the fact is proven or disproven at the hearing has no necessary impact on the outcome of the controversy. In sum, only those interests can become entitlements that are conditional upon the continued existence of one or more controvertible and controverted facts. 4 If none of the material facts is, or could be, controverted, there is no significant issue for a prior hearing to resolve. 5 (Cf. Board of Regents v. Roth, supra, 408 U.S. 564 , 92 S.Ct. 2701 (Roth’s right to continued employment was conditioned on whether the contractual termination date had arrived; Roth did not claim that the date had not arrived).)

Thus, if the beneficiary shows that he is the recipient of a governmentally conferred benefit that is rooted in a legal obligation and that the legal obligation conditions his initial or continued receipt of the benefit on the existence of a controverted fact, he has an entitlement, and he must be accorded prior notice and an opportunity to be heard for the purpose of resolving, the controverted factual issue. (E. g., Arnett v. Kennedy, supra, 416 U.S. 134 , 94 S.Ct. 1633 (right to employment conditioned on absence of sufficient cause for dismissal); Perry v. Sindermann, supra, 408 U.S. 593 , 92 S.Ct. 2694 (same); Morrissey v. Brewer, supra, 408 U.S. 471 , 92 S.Ct. 2593 (right to freedom from incarceration conditioned on absence of violation of parole conditions); Goldberg v. Kelly, supra, 397 U.S. 254 , 90 S.Ct. 1011 (right to welfare conditioned on claimant’s meeting eligibility requirements).)

From these principles we can draw a working definition of an entitlement; An entitlement is a legally enforceable interest in receiving a governmentally conferred benefit, the initial receipt or the termination of which is conditioned upon the existence of a controvertible *496 and controverted fact. Such an interest cannot be impaired or destroyed without prior notice to the beneficiary and a meaningful opportunity for him to be heard for the purpose of resolving the factual issue.

II.

These tenants have not met the criteria for claiming an entitlement. They are recipients of some governmentally conferred benefits, but the conferral of these benefits is not controlled by the requisite kind of legal requirement and, more importantly, even if there were an appropriate legal requirement, it would not give rise to the kind of enforceable obligation that could ripen into an entitlement.

The benefits which the tenants received are occupancy of housing that would not have been available had not section 221 of the Housing Act been enacted and their expectation that rental increases would not be permitted without FHA approval under standards that could be promulgated by the FHA.

The tenants did not receive a benefit that their rents could not be increased during their tenancy, because the statute itself contemplated that rents could thus be raised. Nor can the tenants claim that rents could not be increased beyond the ability of any individual tenant or groups of tenants to pay because, while Congress wanted to make housing available to members of a class consisting of low and moderate income groups, Congress did not gear rent levels to the budgets of individual members of the class or to the means of subclasses within the overall class. Indeed, it was contemplated that rent raises might deprive some of the tenants of the ability to remain in a project.

To have an entitlement to low rents, these tenants must assert a legal requirement that would render a rent increase improper under disputable and disputed facts. However, the statute merely requires that the Secretary in his discretion may regulate rents (12 U.S.C. § 1715J(d) (3)); it does not fix or require the Secretary to fix specific factual standards under which rents are to be regulated. The regulations adopted to implement the rent control requirement reflect the need for flexibility that is implicit in the statute. The only regulation that does more than paraphrase the statute, 24 C.F.R. § 221.531 (c), does not apply to these projects (compare 24 C.F.R. § 221.510 (a), (c), (e) with id. §§ 221.531, 221.532(a)) and does no more than indicate that certain factors are to be balanced in rent control decisions. The HUD handbook on which the tenants rely appears not to be legally binding (see Thorpe v. Housing Authority (1969) 393 U.S. 268, 275 , 89 S.Ct. 518 , 21 L.Ed.2d 474 ), and it does no more than enumerate factors that generally are to be considered. Finally, the regulatory agreement imposes no requirement that rent increase requests be denied in certain circumstances; rather, it requires that rent increases be granted at least in certain circumstances and, if denied, that the denial be communicated in a stated manner.

In dealing with statutes that confer direct aid upon identified classes of persons, such as welfare and veterans’ benefit statutes (e. g., Goldberg v. Kelly, supra, 397 U.S. 254 , 90 S.Ct. 1011 ), it is reasonable to infer, in the absence of expressed intent, that Congress intended those direct beneficiaries to have legally enforceable interests in such benefits as long as the beneficiaries’ eligibility continued. Granting the beneficiary a legal interest assures that each beneficiary receives the benefit that Congress intended to give him. Attaching due process protections to the vindication of the right promotes, rather than impairs, the congressional scheme. Section 221(d) (3), however, gives no direct financial aid to the tenants. Financial inducements are given, not to the tenants, but to private industry to encourage the private sector to build new rental units that would be accessible to lower and middle income families. Congress could have imposed a strict low rent control system expressly for the benefit of the *497 tenants as a price for the government’s financial inducements to prospective builders. But it did not do so because it was not oblivious to the reality that the greater was governmental control of rents and the more procedural detail that enswathed these projects, the less likely it would be that the private sector could be induced to participate. 6 Congress balanced the interests of the tenants in existing 221(d)(3) projects in retaining low rents and the interests of other low and moderate income housing consumers in giving the private sector a sufficiently painless opportunity to earn enough return on its investments to induce it to build, by granting to the individual tenants no enforceable interest in their benefits and by delegating to the FHA the task of regulating rents within flexible standards. (Cf. Langevin v. Chenango Court, Inc., supra, 447 F.2d at 301 ; Hahn v. Gottlieb, supra, 430 F.2d at 1250 .)

The same notion can be expressed in a different way. While section 221(d)(3) was clearly intended to benefit speeifi-cally those persons who rent units in section 221(d)(3) housing projects, the statutory scheme is more directed to benefiting the class of low and middle income housing consumers than it is to benefiting any specific tenants. The purpose of section 221(d)(3) can be met only if a balance is struck between conflicting goals, the generation of housing, and the maintenance of low rents in the housing generated. Crucial to the balance is the acceptance of somewhat less than optimal achievement of each goal. Thus, although more housing would be generated if rents in section 221(d)(3) projects were not controlled, rents must be subjected to some kind of restraints. Conversely, the fact that tenants of a certain project have their rents raised, even if the rent increase is not necessary for the economic viability of the project, does not mean that achievement of the purpose of the statute is impaired. Section 221(d)(3) is a program intended to maximize the benefit generated for the whole class, even if to do so requires that many individuals in the *498 class be given a less than optimal benefit or no benefit at all. Congress apparently concluded that it is more important that more reasonably inexpensive housing projects be built than that Nilda Keller tenants, for example, have a legal right to rents as low as economically feasible.

If these tenants are allowed to prevail, the ability of the program to benefit the entire class of low and moderate income housing- consumers would be impaired. To hold that Congress necessarily conferred a legitimate claim of entitlement on these tenants is to hold that Congress is without power to benefit to the degree it desired the entire class of potential tenants. This court should not hold that Congress’ power to control its benevolence is so limited. Congress may not confer a legal interest on the condition that if it is accepted, the beneficiaries’ interests will be protected by procedures not satisfying due process (see Arnett v. Kennedy, supra, 416 U.S. 134, 166-167, 185, 211 , 94 S.Ct. 1633 ) because of the costs consequent upon a grant of prior notice and hearing; however, it may decide not to confer the legal interest at all (cf. Richardson v. Belcher (1971) 404 U.S. 78, 81 , 92 S.Ct. 254 ; Bell v. Burson (1971) 402 U.S. 535, 539 , 91 S.Ct. 1586 ). Where, as here, the costs of procedural due process protections are substantial, we should not infer that Congress granted an entitlement. 7

Because the tenants have not been able to make the essential showing that they have any enforceable interest in continuing to receive the benefits that they derived from the statutory scheme, they cannot successfully assert that they have entitlements.

III.

Although neither the statute nor the Constitution requires that the tenants be given notice and an opportunity to be heard, I believe that the kind of participation that my brothers describe should be accorded by administrative policy implemented by appropriate regulations.

Even if I agreed with my brothers that the tenants had an entitlement, I could not join the majority opinion because, in the guise of granting due process, it eviscerates the due process protections that it purports to grant. The great procedural protections of due process are reduced by the majority to little more than a right to send and receive mail. Procedural due process is flexible, but it is not flaccid. At the barest of mínimums, due process requires not only adequate prior notice but also a meaningful evidentiary hearing with a right to personal appearance and a right to call and to examine witnesses as well as to present documentary evidence. While stating that the tenants’ interest is substantial, the majority opinion gives the tenants fewer procedural protections than the Supreme Court has held to be constitutionally due prisoners, under the extremely difficult conditions attending prison disciplinary proceedings. (Wolff v. McDonnell (1974) 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 .)

I would reverse.

. Thus, that an interest is legally protected is both a prerequisite to (cf., e. g., West River Bridge Co. v. Dix (1848) 47 U.S. (6 How.) 507, 532 , 12 L.Ed. 535 ; Reich, The New Property, 73 Yale L.J. 733 , 739) and a consequence of (see, e. g., Board of Regents v. Roth (1972) 408 U.S. 564 , 92 S.Ct. 2701 ) its being termed property. Because the relevant legal protections may be of various sorts, an interest may be protected in one manner but not in another. Therefore, a given interest, seemingly paradoxically, may be both property and not property. (Compare Richardson v. Belcher (1971) 404 U.S. 78, 81 , 92 S.Ct. 254 , 30 L.Ed.2d 231 , with Goldberg v. Kelly (1970) 397 U.S. 254 , 262 n. 8, 90 S.Ct. 1011 .)

. The interest in a benefit that gives rise to an entitlement cannot be an absolute right. If the beneficiary’s right to receive the benefit were absolute, the Government without awarding him just compensation could not constitutionally deprive him of the right even after prior notice and hearing.

. The notion is akin to standing doctrines. (See generally, e. g., Association of Data Processing Service Organizations, Inc. v. Camp (1970) 397 U.S. 150 , 90 S.Ct. 827 , 25 L.Ed.2d 184 .) Prerequisites to a claimant’s asserting a legal obligation for the purpose of compelling prior notice and hearing are perforce more stringent than those in which he seeks to assert a legal requirement to support review of governmental action in a proceeding after the government has acted.

. Thus, if in Arnett v. Kennedy (1974) 416 U.S. 134 , 94 S.Ct. 1633 , Kennedy had been able to rebut any governmental proof of wrongdoing on his part, the Government would have been statutorily required to have continued his employment; if in Perry v. Sindermann (1972) 408 U.S. 593 , 92 S.Ct. 2694 , Sindermann had been able to rebut charges of misbehavior, the state might have been required by implied contract of “common” law to have continued his employment; if in Morrissey v. Brewer (1972) 408 U.S. 471 , 92 S.Ct. 2593 , Morrissey had rebutted charges that he violated a condition of his parole, the state would have been disem-powered from revoking his parole; if in Goldberg v. Kelly (1970) 397 U.S. 254 , 90 S.Ct. 1011 , Kelly had established his eligibility for welfare, the state would have been statutorily required to continue to pay him welfare benefits.

. No factual dispute is material, of course, unless the benefit is conditioned on the existence of the disputed fact.

. “. . . . Congress has made clear not only in the statutory language, § 221(a), which we have quoted, but in a relevant committee report, that the purpose of the § 221(d)(3) program was to promote ‘the construction of housing by private enterprise’ S.Rep. No. 281, 87th Cong., 1st Sess., p. 3 (1961). By leaving rent control in such projects to ‘a regulatory agreement’ between the Secretary and the mortgagor if no Federal, State, or local law required more, see fn. 7, Congress indicated its belief that a mandatory provision for subjecting all rent increases in such projects to what would amount to a full-fledged public utility rate proceeding, with the expense and delay necessarily incident thereto, might well kill the goose in ‘solicitude for the eggs.’ Hahn v. Gottlieb, supra, 430 F.2d at 1246 . Congress might reasonably think that, in an inflationary era, construction on the basis of distributions limited to 6% of equity investment, with all the other restrictions imposed on landlords of such projects, would be decidedly unattractive, even with a 3% interest rate on the mortgage, if rent increases ‘necessary to compensate for any net increase, occurring since the last approved rental schedule, in taxes * * * and operating and maintenance expenses over which Owners have no effective control,’ the only basis recognized in tlie standard regulatory agreement, can be held up for months during a trial-type hearing, with discovery of the owner’s records, the taking of testimony, and written findings by an examiner, ...” Langevin v. Chenango Court, Inc. (2d Cir. 1971) 447 F.2d 296, 301 (footnote omitted).

(Cf. Hahn v. Gottlieb (1st Cir. 1970) 430 F.2d 1243, 1250 .) Even the streamlined procedure mandated by the district courts in Geneva Towers and Keller carries with it a substantial risk of disruptive effect. The finances of section 221 (d) (3) projects are finely balanced; the desire to keep rents low leaves landlords no uncommitted income to absorb extraordinary costs. Nor are landlords allowed to obtain increases for most predicted rises in costs; rather, rent increases are generally allowed only for cost increases that have already occurred. Hence, if adjustments for increased costs are even slightly delayed, the viability of the projects would be impaired. Furthermore, the costs of successfully applying for governmental approval of a rent increase would also rise. More dangerous than the realization of these risks with regard to existing projects, however, is the deterrent effect that the mere possibility of such effects would have on potential new participants in the program.

. The Government in Arnett v. Kennedy argued that the statute there in question did not give a government employee a right to continued employment absent sufficient cause for dismissal; “it confers instead a narrower right to employment unless sufficient cause for dismissal is established in accordance with the procedures prescribed therein.” (Brief for Appellants at 17, Arnett v. Kennedy, supra.) In essence, therefore, the Government in Kennedy argued that the statute conferred not an entitlement conditioned on a fact, but rather an entitlement conditioned on a finding. . Under this view, any expectation of continued employment would have been illegitimate after the requisite finding of unfitness had been made, even if the employee were in fact not unfit for employment. The plurality opinion in Kennedy seems to accept this argument. A majority of the Justices in Kennedy , however, reject the notion that constitutionally sufficient. procedures are required when a governmental benefit is conditioned on a fact, but not when it is conditioned on a finding under statutorily prescribed procedures; due process requires, in essence, that when a finding of controverted fact is to be made, it shall be made pursuant to constitutionally sufficient procedures.