ASSE Int’l v. Kerry

Due process under the Administrative Procedure Act is violated when a person or entity does not have a meaningful opportunity to rebut significant portions of the evidence that an agency uses against it.

The State Department oversees the Exchange Visitor Program (“EVP”), a temporary cultural and educational exchange program, with the assistance of third-parties such as ASSE International (“ASSE”). In 2012, Noriko Amari began “an ASSE-sponsored training program at The Cream Pot.” A few weeks later, Amari issued a complaint with the State Department about her training conditions. Amari alleged “labor exploitation, excessive work hours, inadequate compensation for work performed, and harassment.” In November 2013, the State Department notified ASSE if its intent to impose sanctions. ASSE responded, offering evidence to contradict the State Department’s findings, however, the Department ultimately determined sanctions were warranted. ASSE filed a suit, arguing that the imposition of sanctions was arbitrary and capricious, and that the State Department’s procedure for sanctions violated ASSE’s due process rights. The State Department filed a motion to dismiss, which the district court granted, noting that there was no review available under the Administrative Procedure Act (“APA”) and the process ASSE received was fair. On appeal, the Ninth Circuit held that ASSE provided a “meaningful standard” by which the court can review the State Department’s exercise of discretion in sanctioning ASSE. However, the panel also found that the State Department did not provide adequate procedural protections in this instance because “ASSE did not have a meaningful opportunity to rebut significant portions of the evidence that the [State] Department used against it.” REVERSED and REMANDED.