Foss

This case calls upon us to decide whether an applicant for a federal fishing quota permit has a cognizable procedural due process claim. Appellant Richard Foss filed his application 45 days late and the National Marine Fisheries Service (“NMFS”) denied the application as untimely. Foss claims that the denial violated his procedural due process rights and also challenges the denial on other grounds. The district court held that Foss had no property or liberty interest in the permit and hence did not have a due process claim, rejected his other claims, and granted summary judgment against him. We disagree with the district court’s analysis of the due process issue. The fishing quota permit was a regulatory entitlement, not an abstract gleam in Foss’s eye or a unilateral expectation. NMFS had no discretion to deny Foss’s application, assuming he met the objective regulatory requirements. Under long-standing Ninth Circuit authority, we hold that for purposes of procedural due process, Foss had a protectible property interest in receiving a guaranteed fishing quota permit. Nonetheless, NMFS’s procedures were “constitutionally sufficient” and NMFS properly denied Foss’s application.…