may it please the court by your honors i would like to reserve three minutes of my time this missing plane to a p a in due process claims that challenge severe sanction by the agency we believe the decision below should be reversed  remanded because for a p a review this is not one of those rare instances where we view does not apply in fact there were detailed regulations used by the agency spencer which judge nelson wrote for the court benno and keating all these cases either involved detailed regulations or even less for example in pinnacle  armor the this court found that interim guidelines were sufficient as a basis for law to determine that there were that this law to apply and therefore the a p a applies if we agree with you considering i think the district court first of all has to have the record before and one of the problems the a judge recruiters that the court did not have a full record there are many things missing in the record there are other things that probably shouldn't be in the record and the judge needs to consider a full record before him we also believe there's a due process issue which raises questions of what this record should look like whether it should just be a paper record even though it says that these are lesser sanctions if you're honest look at the affidavit of my client the owner of assaye essay by the way is a company that deals exclusively and solely with the department of state so if it loses its license the entire under section sixty two point three fifty eight it says it's in their discretion but their discretion must be first determined by whether or not there's a finding of a violation and they went through detailed findings which we can test of course but then even after making those details findings under the regulations they must determine whether objective willie there is a serious that the speaks sufficient english and what evidence it must rely on war with or other findings that the office may make such as whether this sponsors action compromise national security goals that are not related to any regulations  number one they have said that we have violated specific regulations meaning for example that this person did not speak sufficient english for purposes of this program courts look at those things all the time courts make determinations as to whether or not based on this record this sufficient evidence to support their claim that's what the arbitrary and capricious standards are about and indeed there there are specific cases even one from the central district of california deciding in english language issues specifically we didn't mention that in the brief because it didn't come up with lopez versus it's true at two ten westlaw two six seven four four three depending on the circumstances but that issue is not before the court because there are four separate upright criteria for determining when assy should be sanctioned that criteria which is number four was never invoked here the only ones that were invoked against ashley were number one that it violated the regulations and number three that in fact is gauged in omissions or comission means which resulted in in vain during the health and safety of this person those issues by the way are the traditional kinds of issues that a courtroom decide judge you could ask me one of the things that i think should be decided on  coalition means what omission means because the government has acknowledged in their brief and i just want to point this out as did the agency at page nine  determined that assay did not directly participate in the harassment of the exchange visitor and responded appropriately when informed of the situation so the question is what is omission or commission even mean under these violations had to do with she didn't have enough english that she was there for leave her own and other things well that but the third one which i think actually was the most important that motivated them to give the sanctions was the claim that we gauge an omission philco missions that resulted in the harming the safety of this person actively it's a failure supervise your got your client is being held strictly liable for what he did or didn't do well well that's the question i think the question is if these regulations allow for liability number one but number two the reason why that's important here judge bybee and i think it's different than pinnacle armor is that all of that is based on testimony that is it's based on this woman's claim that there were thirty instances of harassment it's based on law enforcement officials claims that there were some problems involved and so testimony in some sense becomes important here and that's why i'm sorry i'll get to the point that's why i think something more than just the paper record maybe less than a formal trial but maybe some discovery that allows us to take the testimony of individuals because testimony in this particular case seems to be very critical and due process and the masters is a flexible analysis we don't have to say it's either all a formal hearing you know what trial or just the paper record did you get a summary of what they're cl the state department's claims are based on what this i'm sorry did you get a summary from the state department as to the basis of their well in here they put the no no i mean there were no there's no facts in this record  those thirty claims of harassment all they said was there was thirty that she told them there was thirty instances of arrest if there was not one piece of evidence here about that harassment who did it when it happened have the departed state didn't have the basis for the department of homeland security's judgment on the on the t v set it only had the inference to be drawn from the fact that it had been issued right but they interviewed this woman court provided the outline of what that matthew's analysis would result in you have two minutes and forty seconds left you'd like to reserve it  the state department's determination that in its discretion lesser sanctions were warranted but they differ for emphasizes a narrow ruling and said that there is no claim that regulations are violated there is no claim that the state percent in the number of forms of special state department borns that claimed it receives that allow foreign visitors to seek a visa for entry into the united states so that that's what we actually have here look at the issue of utility in the context of a particular case and it's important to know that the plaintiff has not i mean another case involving this program might be reviewable know in the context of the nature of that the sanctions and example the exchange visitors observation english whether their parties comply with the regulations these are not matters to the district court under the government regulation to determine those were matters that the state department regulations are for the protection of the foreign visitors and that everything about the substantive requirements that she be getting genuine training which would have been the drain provision the record from office business management again i mean what makes it different is the question is why can't we just farm on the alternative ground that the state department made the findings and i type supporting evidence and that's good enough that the cour and say there was substantial evidence or alternatively i presume we could send it back to the district court and say you were wrong and saying you could review these issues you should be reviewing it for substantial evidence so we say the alternative th and the state department and what i want to emphasize again going back to the due process procedural claim that we had no way to know what the charges were against us and no way to rebut in written documents evidence it would be extraordinary to conclude that the state department in overseeing this exchange visitor program which is solely to enhance foreign relations everything is designed for the protection of the visitor to say they can they cannot even consider the fact that she's in compliance with the da that's regulations have to submit credit credible evidence that she was in the country as a result of severe or cracking in humans and that she was the victim of your trafficking i mean this is all of this is we're not talking about criminal investigations and one of the conditions of the t v is if you look at it you just regulations is that she cooperate with federal law enforcement  say that's not true our program is genuine she believes you did what it said in your training program they're going to put that before the state department so now we're talking about is he in a duplex that now gone is a basis for the imposition of lesser sanctions a foreign visitor and that they were told she said there were thirty instances of harassment that her family was threatened and she was threatened with immigration consequences that's in the notice of intent the state department gave to the claims that they are not entitled to the underlying law enforcement evidence and the state department could not give it to them and the idea that the state department they are or is precluded from taking into account the fact review that was only for the state department and as i understand it if in fact there was some evidence that the visitor spoke fluent english or there was no evidence that her english was was inadequate the court also said nothing about that review would compromise the purposes of the program but here if you think very concretely about they're saying my witnesses if they are saying we get to cross examine program and then and then you can quibble around the edges about what suitable for review what's what's in the discretion of the state department but the threshold question is whether the district court can  review the state department's sanction determination under this program and these regulations i'm going to deliberately because i do not want to prejudge cases that are different from this one the district court said i could i think the difficulty here is that the government's position like the district court's position is very confused in the sense that we all know what an administrative record is and if we don't this court has said in thomson it consists of all documents and materials directly or indirectly considered directly or indirectly considered by the agency decision makers and including evidence contrary to the agency's position that's what an administrative record is we don't have an administrative record in this case so when the when the government talks about in the judge talks about on the record there is no record there never was an administrative record here we all know what an administrative record is and it's not the plaintiff's spur to put that forward as the government suggests it's the government's power when there is an administrative case being reviewed for substantial evidence the agency has the responsibility of putting together the entire record and presenting it to the district court if if the agency has evidence that is contrary to their position for example we know here that there was a coworker with this trainee and a coworker said everything was fine they don't she doesn't understand why this woman was complaining she worked with her side by side that was never in the administrative record because we have never had the administrative record and we pointed out in ou briefs both in our an initial brief and our reply brief in detail as to what things were missing from the record not only including the co worker's statements but statements that were taken from the individual trainee allegedly other documents that she presented to the agency these may be the documents which are helpful to us in a substantial evidence review so the confusion here is this judge did try to do both things he tried to say there's no judicial review at all but i'm going to review what i have in front of me but that's not the administrative record so the government's claim that we should jump ahead and even if the jurisdiction is a little murky here you should reach the result because there was there was evidence in the record is not accurate there was no administrative record the second thing just very briefly i just want to drive address judge a his question about post deprivation which i never think i got to completely and that was it would not help to have a post deprivation hearing here because one of the major problems that we face is if there is a finding the agency will publish it that publication as stated in mr gustafson's affidavit which is in the record before the court would be disastrous and would result in the company losing one point nine million dollars at least and having a fire many of its people in the office so we would want some kind of fried deprivation hearing and again the contours of that hearing were not it doesn't necessarily have to be a full trial but it should be something more than just the paper