ASSE Int'l, Inc. v. Kerry, No. 14-56402 (9th Cir. 2015)
Annotate this CaseASSE, a third-party Exchange Visitor Program (EVP) sponsor, challenged the Department's sanctions decision. The district court dismissed the suit as unreviewable under the Administrative Procedure Act (APA), 5 U.S.C. 701(a)(2), because the administration of the EVP is "committed to agency discretion by law." The district court also dismissed ASSE's constitutional claims based on the grounds that the process was fundamentally fair. The court concluded that the Department failed to rebut the strong presumption of judicial reviewability because its regulations provide a “meaningful standard” by which the court can review its exercise of discretion in sanctioning ASSE. Therefore, the court may review the State Department’s final agency action under the standards prescribed by 5 U.S.C. 706(2)(A). To the extent the petition challenges the agency’s factfinding, the court may review the State Department’s determinations for substantial evidence. Because ASSE did not have a meaningful opportunity to rebut significant portions of the evidence that the Department used against it, the Department did not afford it adequate procedural protections. Therefore, the court concluded that the district court erred in finding that ASSE failed to state a claim because the process afforded was fundamentally fair. Accordingly, the court reversed and remanded for further proceedings.
Court Description: Administrative Procedure Act / Due Process. The panel reversed the district court’s dismissal of ASSE International’s claims, alleging violations of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment, and challenging the Department of State’s sanctions imposed against ASSE for violating various regulations associated with the Exchange Visitor Program that allows nationals to participate in temporary cultural and educational exchange programs in the United States. The panel held that the State Department’s imposition of sanctions was subject to Administrative Procedure Act review. The panel concluded that the State Department failed to rebut the strong presumption of judicial reviewability because its regulations provided a “meaningful standard” by which the court could review its exercise of discretion in sanctioning ASSE. Concerning ASSE’s procedural due process claim, the panel held that the Due Process Clause did not mandate trial- type proceedings in this case. The panel further held that the State Department did not provide ASSE adequate procedural protections because ASSE did not have a meaningful opportunity to rebut significant portions of the evidence that the State Department used against it. The panel remanded to the district court to decide in the first instance whether ASSE ASSE INT’L V. KERRY 3 had a protected property interest, and if so, whether the due process violation it suffered was harmless error.
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