ASSE International, Inc. v. Kerry

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASSE INTERNATIONAL, INC., No. 14-56402

Plaintiff-Appellant,

D.C. No.

v. 8:14-cv-00534-

CJC-JPR

JOHN F. KERRY, Secretary of State of

the United States; ROBIN LERNER,

Deputy Assistant Secretary of State OPINION

for Private Sector Exchange, Bureau

of Educational and Cultural Affairs;

UNITED STATES DEPARTMENT OF

STATE,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted

February 2, 2015—Pasadena, California

Filed October 9, 2015

Before: Dorothy W. Nelson, Jay S. Bybee,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Bybee

2 ASSE INT’L V. KERRY

SUMMARY*

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

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ASSE INT’L V. KERRY 3

had a protected property interest, and if so, whether the due

process violation it suffered was harmless error.

COUNSEL

Ira J. Kurzban (argued), Edward F. Ramos, Kurzban Kurzban

Weinger Tetzeli & Pratt P.A., Miami, Florida, for Plaintiff-

Appellant.

Alisa B. Klein (argued) and Mark B. Stern, Appellate Staff

Attorneys, Joyce R. Branda, Acting Assistant Attorney

General, André Birotte, Jr., United States Attorney, Beth S.

Brinkmann, Deputy Assistant Attorney General, United

States Department of Justice, Washington, D.C., for

Defendants-Appellees.

OPINION

BYBEE, Circuit Judge:

Congress created the Exchange Visitor Program (EVP) to

allow foreign nationals to participate in temporary cultural

and educational exchange programs in the United States. The

Department of State administers the EVP, with the assistance

of various third-party program sponsors. This case arises out

of sanctions that the Department imposed against one of these

sponsors, ASSE International (ASSE), for violating various

regulations. ASSE challenged the Department’s sanctions

decision in the United States District Court for the Central

District of California, claiming that the agency had acted

arbitrarily and capriciously in violation of the Administrative

Procedure Act (APA), and that it had violated ASSE’s due

4 ASSE INT’L V. KERRY

process rights under the Fifth Amendment. The district court

dismissed the suit as unreviewable under the APA because

the administration of the EVP is “committed to agency

discretion by law.” 5 U.S.C. § 701(a)(2). It also dismissed

ASSE’s constitutional claims on the grounds that the process

was “fundamentally fair.” We reverse as to both grounds.

I

In the Mutual Educational and Cultural Exchange Act of

1961, Congress authorized the State Department, through the

United States Information Agency “to provide, by grant,

contract, or otherwise, for educational exchanges . . . by

financing visits and interchanges between the United States

and other countries of students, trainees, teachers, instructors,

and professors.” 22 U.S.C. § 2452(a)(1). The State

Department, by regulation, created the EVP to promote

educational and cultural exchanges between the people of the

United States and of other nations. 22 C.F.R. § 62.1(b). The

EVP authorizes various exchange programs for foreign

visitors; as relevant here, the EVP authorizes “work-based”

training programs to expose foreign college graduates “to

American techniques, methodologies, and technologies” in

their fields. Id. § 62.2. The State Department oversees the

EVP but uses third-party program sponsors to select

qualifying visitors, find them educational or training

opportunities, and monitor their welfare during their

programs. See 22 U.S.C. § 2452; 22 C.F.R. §§ 62.1(b), 62.6.

The State Department caps the number of participants in any

given sponsor’s programs by allocating each sponsor a one-

year supply of DS-2019 forms, which are the “Certificate[s]

of Eligibility for Exchange Visitor (J-1) Status.” 22 C.F.R.

§ 62.12(d). Sponsors, in turn, distribute one DS-2019 form

per EVP applicant, and the applicant uses that form to apply

ASSE INT’L V. KERRY 5

for participation in the EVP program. See About DS-2019, J-

1 VISA: Exchange Visitor Program, available at

http://j1visa.state.gov/participants/how-to-apply/about-ds-

2019/. “The Department of State has the sole discretion to

determine the number of Forms DS–2019 to be issued to a

sponsor.” 22 C.F.R. § 62.12(d)(1). ASSE is one such

privately-owned EVP program sponsor and is subject to these

regulations.

The Department’s regulations provide a framework for

implementing the EVP. For instance, a program sponsor

must ensure that the “exchange visitor possesses sufficient

proficiency in the English language . . . to participate in his or

her program.” Id. §§ 62.10(a)(2), 62.22(d)(1). Program

sponsors must ensure that training programs provide “bona

fide training” and are not “used as substitutes for ordinary

employment or work purposes.” Id. § 62.22(b)(1)(ii); see

also id. § 62.22(f)(2)(iii), (v). Similarly, sponsors must not

put “trainees or interns in unskilled or casual labor positions”

or “in positions, occupations, or businesses that could bring

the [EVP] or the Department into notoriety or disrepute.” Id.

§ 62.22(j). Sponsors may assign responsibilities to third

parties, but any violations committed by such third parties are

“imputed to the sponsors” themselves. Id. § 62.22(g)(1).

Thus, the sponsors must “[e]nsure that any host organizations

and third parties . . . are sufficiently educated on the goals,

objectives, and regulations of the [EVP] and adhere to all

regulations.” Id. § 62.22(f)(1)(v).

The State Department’s regulations provide that it may

sanction sponsors if its Office of Exchange Coordination and

Designation makes at least one of four findings: (1) the

sponsor has “[v]iolated one or more” agency regulations;

(2) the sponsor has “[e]videnced a pattern of failure to

6 ASSE INT’L V. KERRY

comply” with the regulations; (3) the sponsor has

“[c]ommitted an act of omission or commission, which has or

could have the effect of endangering the health, safety, or

welfare of an exchange visitor”; or (4) the sponsor has

“conducted its program in such a way as to undermine the

foreign policy objectives of the United States.” Id.

§ 62.50(a).

In its discretion, the Department can determine whether

to impose more serious sanctions (suspension, revocation, or

a denial of redesignation to a sponsor) or “lesser sanctions,”

which can include any combination of a written reprimand, a

mandate that the sponsor submit a corrective action plan to

remedy the violation(s), and up to a 15% reduction in the

number of authorized visitors who may participate in the

sponsor’s programs. Id. § 62.50(b)(1). The regulations

outline the procedure required before “lesser sanctions” may

be imposed: the Department must give the program sponsor

written notice of its intent to impose lesser sanctions, after

which the sponsor has ten days to respond with “a statement

in opposition to or mitigation of the sanction,” which “may

include additional documentary material.” Id. § 62.50(b)(2).

Then the Department “may, in its discretion, modify,

withdraw, or confirm” the sanctions outlined in its initial

notice. Id.

ASSE has been an EVP program sponsor for nearly four

decades, serving thousands of exchange visitors each year.

In 2009, ASSE contracted with a third party, American

Career Opportunities (ACO), to assist ASSE with exchange

visitors from Japan. ASSE also approved The Cream Pot

restaurant in Hawaii as a host organization. In accordance

with EVP regulations, ASSE alleges that it “fully vetted” both

organizations before contracting with them, and ASSE

ASSE INT’L V. KERRY 7

outlined all of the Department’s requirements in the

contracts.1 Id. § 62.22(g). Further, ASSE alleges that it

provided extensive training to ACO personnel to be sure that

they were “sufficiently educated on the goals, objectives, and

regulations of the” EVP. Id. § 62.22(f)(1)(v).

ACO assisted ASSE with the recruitment and placement

of a 31-year-old Japanese exchange visitor, Noriko Amari,

who began an ASSE-sponsored training program at The

Cream Pot. In February 2012, a few weeks after beginning

her program, Amari contacted the State Department to lodge

a complaint about her training conditions, alleging labor

exploitation, excessive work hours, inadequate compensation

for work performed, and harassment. The State Department

sought an explanation from ASSE regarding Amari’s

troubling claims. ASSE alleges that it immediately tried to

communicate with Amari and offer assistance, but Amari

would not respond to ASSE’s attempt to talk to her.

Within weeks, the Department initiated a review of

ASSE’s compliance with the EVP regulations. Based on this

review, the Department determined that sanctions were

warranted because ASSE had violated several regulations. Id.

§ 62.50(a)(1). While the Department conceded that ASSE

had not directly participated in any harassment and that ASSE

had responded to Amari’s complaints appropriately, the

Department determined that ASSE had failed to ensure that

1

ASSE appeals the district court’s dismissal of its complaint on

jurisdictional and failure to state a claim grounds. The government made

a facial challenge to the district court’s exercise of jurisdiction, asserting

that ASSE’s complaint’s allegations were, on their face, insufficient to

invoke jurisdiction, rather than a factual challenge. As such, we treat the

factual allegations in ASSE’s complaint as true. See Courthouse News

Serv. v. Planet, 750 F.3d 776, 779–80 (9th Cir. 2014).

8 ASSE INT’L V. KERRY

Amari had sufficient English to participate in the program,

leaving her vulnerable for abuse—a violation of 22 C.F.R.

§§ 62.10(a)(2)2 and 62.22(d)(1).3 The Department also found

that ASSE had failed to ensure that Amari’s placement was

a genuine training program, not just the fulfillment of a

general labor need—a violation of 22 C.F.R.

§§ 62.22(b)(1)(ii)4 and 62.22(f)(1)(i).5 Finally, the

2

“Sponsors are responsible for the effective administration of their

exchange visitor program(s). These responsibilities include:

(a) Selection of exchange visitors. Sponsors must

establish and utilize a method to screen and select

prospective exchange visitors to ensure that they are

eligible for program participation, and that:

. . . . (2) The exchange visitor possesses sufficient

proficiency in the English language . . . to participate in

his or her program . . .”

3

“In addition to satisfying the general requirements set forth in

§ 62.10(a), sponsors must ensure that trainees and interns have verifiable

English language skills sufficient to function on a day-to-day basis in their

training environment.”

4

“Exchange Visitor Program training and internship programs must not

be used as substitutes for ordinary employment or work purposes . . . .

The requirements in these regulations for trainees are designed to

distinguish between bona fide training, which is permitted, and merely

gaining additional work experience, which is not permitted. The

requirements in these regulations for interns are designed to distinguish

between a period of work-based learning in the intern’s academic field,

which is permitted (and which requires a substantial academic framework

in the participant’s field), and unskilled labor, which is not.”

5

“Obligations of training and internship program sponsors.

(1) Sponsors designated by the Department to

ASSE INT’L V. KERRY 9

Department held ASSE responsible for the conduct of its

third-party organization, ACO, and ACO’s violations of the

regulations—concluding that ASSE violated 22 C.F.R.

§§ 62.9(f)(2)6 and 62.22(f)(1)(v).7 ACO’s conduct and

ASSE’s failure to adequately screen Amari for adequate

English, the Department concluded, endangered Amari’s

health, safety, and welfare, as prohibited by the

regulations—providing an additional reason for sanctions

under 22 C.F.R. § 62.50(a)(3). In reaching these preliminary

conclusions, the Department relied in part on the fact that

the Department of Homeland Security had issued Amari a

administer training and internship programs must:

(i) Ensure that trainees and interns are

appropriately selected, placed, oriented, supervised, and

evaluated.”

6

“Staffing and support services. Sponsors must ensure that:

. . . . (2) Their employees, officers, agents, [and]

third parties . . . associated with the administration of

their exchange visitor program are adequately qualified,

appropriately trained, and comply with the Exchange

Visitor Program regulations.”

7

“Obligations of training and internship program sponsors.

(1) Sponsors designated by the Department to

administer training and internship programs must:

. . . . (v) Ensure that any host organizations and

third parties involved in the recruitment, selection,

screening, placement, orientation, evaluation for, or the

provision of training and internship programs are

sufficiently educated on the goals, objectives, and

regulations of the Exchange Visitor Program and

adhere to all regulations set forth in this Part . . . .”

10 ASSE INT’L V. KERRY

T Visa—a visa for those who are or have been victims of

human trafficking—based on her treatment in the training

program.

In November 2013, the State Department provided ASSE

with a written Notice of Intent to impose sanctions,

describing its findings and the three “lesser sanctions” it

intended to impose: a written reprimand, a requirement that

ASSE provide a corrective action plan, and a 15% reduction

in the number of trainees in ASSE’s program. Pursuant to its

regulations, the Department gave ASSE a ten-day window in

which to respond, and ASSE submitted a written response

with exhibits. The exhibits included Amari’s self assessment

of her own English skills and college transcripts showing her

successful completion of several English courses at a

university in Japan. After considering ASSE’s response, the

Department determined that lesser sanctions were still

warranted, and it issued a final Imposition of Lesser

Sanctions.

ASSE filed a complaint in the Central District of

California, claiming that the Department’s decision to

impose sanctions was arbitrary and capricious and should be

set aside under the APA, 5 U.S.C. § 551 et seq.8 ASSE also

alleged that the Department’s sanctions procedure violated its

due process rights. The State Department filed a motion to

dismiss ASSE’s complaint, arguing that the sanctions

imposed against ASSE were unreviewable because sanctions

decisions are “committed to agency discretion by law” within

the meaning of 5 U.S.C. § 701(a)(2), and asserting that ASSE

had received all the process it was due.

8

Although ASSE raised additional claims before the district court, it is

not pursuing any of those claims on appeal.

ASSE INT’L V. KERRY 11

The district court granted the motion to dismiss. With

respect to ASSE’s APA claims, the district court found that

the statutes authorizing the EVP—22 U.S.C. §§ 2451,

2452(a), and 2455(f)—vested full discretion in the

Department to implement the program in a manner that would

“strengthen international cooperative relations,”9 and that the

EVP regulations at issue here did not limit the Department’s

broad discretionary authority to implement sanctions. The

district court also dismissed ASSE’s due process claim,

finding that ASSE had failed to state a claim because “the

process by which ASSE was sanctioned was fundamentally

fair.” ASSE filed a timely notice of appeal.10

II

ASSE first challenges the district court’s dismissal of the

complaint on the ground that there is no review available

under the APA. See 5 U.S.C. § 701(a)(2).

At the outset, we note the “strong presumption that

Congress intends judicial review of administrative action.”

Helgeson v. Bureau of Indian Affairs, 153 F.3d 1000, 1003

(9th Cir. 1998) (quoting Traynor v. Turnage, 485 U.S. 535,

542 (1988)) (internal quotation marks omitted); see also ANA

Int’l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004) (“The

default rule is that agency actions are reviewable . . . even if

9

The district court also made a passing reference to “the fact that the

issues involved here squarely implicate foreign relations” as a reason why

it lacked jurisdiction to review ASSE’s claims.

10

“We review de novo the district court’s dismissal for lack of subject

matter jurisdiction.” Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1136 (9th

Cir. 2013). We also review due process questions de novo. United States

v. Harrington, 749 F.3d 825, 828 (9th Cir. 2014).

12 ASSE INT’L V. KERRY

no statute specifically authorizes judicial review.”). “This

presumption is overcome only in two narrow circumstances,”

Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 718–19

(9th Cir. 2011): (1) “when Congress expressly bars review

by statute,” id. at 719; or (2) where an agency action is

“committed to agency discretion by law.” 5 U.S.C.

§ 701(a)(2). The first exception is inapplicable here, but the

Department argues that the second exception applies and that

we are precluded by the APA itself from reviewing the

Department’s decision.

Agency action is committed to agency discretion in those

“rare instances where statutes are drawn in such broad terms

that in a given case there is no law to apply, thereby leaving

the court with no meaningful standard against which to judge

the agency’s exercise of discretion.” Pinnacle, 648 F.3d at

719 (internal quotation marks and citations omitted). In

determining whether an agency decision fits within this

exception, “we consider ‘the language of the statute and

whether the general purposes of the statute would be

endangered by judicial review.’” Id. (quoting Cnty. of

Esmeralda v. Dep’t of Energy, 925 F.2d 1216, 1218 (9th Cir.

1991)). “‘[T]he mere fact that a statute contains discretionary

language does not make agency action unreviewable.’” Id.

(quoting Beno v. Shalala, 30 F.3d 1057, 1066 (9th Cir.

1994)).

The Department argues that, as the district court reasoned,

we are barred from reviewing ASSE’s APA claims for two

reasons: (1) the statute authorizing the Department to

implement the EVP does not limit the Department’s

discretion in any way, and because the EVP “squarely

implicate[s] foreign relations,” judicial review would

undermine the purpose of the program; and (2) ASSE’s

ASSE INT’L V. KERRY 13

claims are “well beyond the scope of any meaningful review

the Court could provide” because the Department’s

regulations do not provide a “meaningful standard” by which

a court could review the Department’s actions. We conclude

that the Department failed to rebut the strong presumption of

judicial reviewability because its regulations provide a

“meaningful standard” by which we can review its exercise

of discretion in sanctioning ASSE.

A. Discretion in the EVP’s Authorizing Statute

In order to assess whether the court has a “meaningful

standard against which to judge the agency’s exercise of

discretion[] . . . we first look at the statute itself.” Helgeson,

153 F.3d at 1003 (citations and internal quotation marks

omitted). The authorizing statute vests the State Department

with discretion to create and fund exchange programs to the

extent that the Department “considers that [they] would

strengthen international cooperative relations.” 22 U.S.C.

§ 2452(a). The decision whether to establish a particular

exchange program lies purely within the Department’s

discretion and is a policy question as to which there is no law

for us to review. See id. §§ 2451, 2452(a). If all we were

asked to review was the decision to create the EVP, there

would be “no law to apply,” Webster v. Doe, 486 U.S. 592,

599 (1988) (internal quotations omitted), because we would

have “no meaningful standard against which to judge the

agency’s exercise of discretion,” Heckler v. Chaney, 470 U.S.

821, 830 (1985).

But ASSE has not asked us to review the decision to

create the EVP. Rather, it has asked us to measure the State

Department’s administration of the EVP against the

Department’s own regulations. This we can do without

14 ASSE INT’L V. KERRY

infringing any of the State Department’s prerogatives under

the statute. “Even where statutory language grants an agency

‘unfettered discretion,’ its decision may nonetheless be

reviewed if regulations or agency practice provide a

‘meaningful standard by which this court may review its

exercise of discretion.’” Spencer Enters., Inc. v. United

States, 345 F.3d 683, 688 (9th Cir. 2003) (quoting

Socop–Gonzalez v. INS, 208 F.3d 838, 844 (9th Cir. 2000)).

Accordingly, we “will find jurisdiction to review allegations

that an agency has abused its discretion by exceeding its legal

authority or by failing to comply with its own regulations.”

Abdelhamid v. Ilchert, 774 F.2d 1447, 1450 (9th Cir. 1985)

(internal quotation marks omitted).

The district court offered a second reason why we cannot

review the State Department’s actions: because “the issues

involved here squarely implicate foreign relations.” Quoting

the Third Circuit, the State Department argues that all “cases

involving the [EVP] necessarily implicate foreign policy

concerns and involve an agency exercising its discretionary

powers in that respect.” Chong v. Dir., U.S. Info. Agency,

821 F.2d 171, 177 (3d Cir. 1987). The Department thus

claims that we are treading in “an area of executive action in

which the courts have long been hesitant to intrude,” and that

judicial review will undermine the foreign policy goals of the

statute. Helgeson, 153 F.3d at 1003 (internal quotation marks

omitted).

But a weak connection to foreign policy is not enough to

commit an agency action to the agency’s discretion. See

Baker v. Carr, 369 U.S. 186, 211 (1962) (“[I]t is error to

suppose that every case or controversy which touches foreign

relations lies beyond judicial cognizance.”); see also, e.g.,

Singh v. Clinton, 618 F.3d 1085, 1092 (9th Cir. 2010)

ASSE INT’L V. KERRY 15

(reversing State Department’s decision to terminate

immigrant’s visa registration).

The Department’s reliance on Chong is misguided and the

quotation taken out of context. Dr. Chong came to the United

States to participate in an EVP for graduate medical training.

Chong, 821 F.2d at 173. At the end of his program, Dr.

Chong was expected to return to Hong Kong, but Dr. Chong

feared that he would not be permitted to practice medicine

there and requested a § 212(e) hardship waiver, 8 U.S.C.

§ 1182(e), so that he and his family could remain in the

United States. Id. at 174. The State Department denied his

request and Chong filed suit. The government, as it has in

this case, claimed that the federal courts could not review the

waiver denial under the APA because there was “no law to

apply.” Id. at 175. The Third Circuit rejected the

government’s position, finding that the State Department had

“adopted regulations which delineate the procedure it must

use to review waiver requests.” 821 F.2d at 176. The court

recognized that its “scope of review of the [State

Department’s] recommendation function under section

1182(e) is severely limited because the statute and the

[Department’s] regulations vest rather broad discretion in the

Director of the USIA,” and reviewed the Department’s

decision for an abuse of discretion. Id. at 176–77.

In the course of its opinion, the Third Circuit commented

that “cases involving the Exchange Visitor Program

necessarily implicate foreign policy concerns and involve an

agency exercising its discretionary powers . . . .” Id. at 177.

But that statement was an explanation for why the court

would not demand “a more particularized explanation” from

the State Department, not a justification for why it could not

review the State Department’s decision. Id. Moreover, the

16 ASSE INT’L V. KERRY

Department’s regulations here are far more detailed than the

statute and regulations at issue in Chong, which addressed

decisions to grant or deny hardship waivers. Chong does not

help the government’s case.

In addition, although the Department claims that “serious

foreign policy consequences . . . could result from judicial

review,” it never explains how judicial review of a sanctions

decision against a U.S.-based program sponsor could

undermine foreign relations or national security in any way.

Cf. Webster, 486 U.S. at 601 (CIA hiring decisions are

unreviewable in part because the “Nation’s security depend[s]

. . . on the reliability . . . of the Agency’s employees”). As

ASSE points out, it is difficult to imagine how Japan would

be offended by federal court review of the State Department’s

decision to impose sanctions on ASSE.

In sum, the statute authorizing the EVP only gives the

State Department the absolute discretion to create or not to

create exchange programs for foreign students, and that

decision is not challenged here. Additionally, we cannot see

that in this instance, judicial review would undermine the

EVP’s foreign policy goals and purposes. We thus turn to

whether the Department’s own regulations erect a standard by

which we may judge its actions.

B. The State Department’s Regulations Provide a

“Meaningful Standard” for Review

We think it evident that the State Department’s

regulations creating the EVP provide more than an ample

basis in law for us to review its decision under the APA. See

22 C.F.R. pt. 62. Those regulations create the program,

§ 62.1(b); define all the relevant terms, § 62.2; provide who

ASSE INT’L V. KERRY 17

is eligible to be a sponsor, §§ 62.3, 62.7–62.8; provide which

foreign nationals may participate, § 62.4; describe the

application process for sponsors, § 62.5; establish the general

obligations of sponsors, §§ 62.9–62.15; describe the rules for

foreign exchange participants, §§ 62.16–62.17, 62.22, 62.43,

62.45; and provide for sanctions against or termination of

sponsors, §§ 62.50, 62.60–62.63. After reviewing these

regulations, it is obvious to us that they establish a

comprehensive scheme for administering an exchange

program. For program sponsors, the regulations have the

force of law, and there are real consequences for failing to

abide by them. Indeed, if the regulations had been enacted as

statutes by Congress, we clearly would have law to apply and

could review the State Department’s actions under the APA.

The fact that the regulations also give the Department

discretion in the administration of the EVP does not prevent

our review. Section 701(a)(2) of the APA precludes review

of agency action “committed to agency discretion by law,”

but this has never been thought to put all exercises of

discretion beyond judicial review. Indeed, “the APA itself

commits final agency action[s] to our review for ‘abuse of

discretion.’” Pinnacle, 648 F.3d at 720 (quoting 5 U.S.C.

§ 706(2)(A)). The abuse of discretion standard is one with

which federal courts are quite familiar, and it is just that—a

legal standard by which we judge the legitimacy of a lower

court’s or an agency’s action. It is a standard of review, not

a bar to review. That said, it is a generous standard that gives

a lower court or an agency leeway in the decisions it makes.

We will reverse under an abuse of discretion standard when

the trier of fact and law “based its ruling on an erroneous

view of the law or on a clearly erroneous assessment of the

evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

405 (1990); see also Bobbitt v. Milberg LLP, __ F.3d __,

18 ASSE INT’L V. KERRY

2015 WL 5255081, at *2 (9th Cir. Sept. 10, 2015) (noting

that a lower court abuses its discretion when it “makes an

error of law, or when it reaches a result that is illogical,

implausible, or without support in inferences that may be

drawn from the record”). Here, where the State Department

has reserved to itself in the EVP certain decisions as within

its “discretion,” see, e.g., 22 C.F.R. §§ 62.41(a), 62.50(b)(1),

or even its “sole discretion,” see, e.g., id. §§ 62.6(a), 62.62,

we will take into account the State Department’s reservation

and expertise and accord it the proper deference. But that

does not deprive us of the right to review its actions for an

abuse of its discretion or to determine if its actions were

otherwise arbitrary and capricious.

Under the State Department’s regulations, sanctions may

be imposed against a program sponsor if the agency

determines that any one of four specified grounds exists. Id.

§ 62.50(a). The agency invoked two of these grounds here.

First, the Department found that ASSE “[v]iolated one or

more provisions” of the agency’s internal regulations.11 Id.

§ 62.50(a)(1). Second, it found that ASSE committed “an act

of omission or commission” that endangered “the health,

safety, or welfare” of Amari. Id. § 62.50(a)(3). ASSE

contests the validity of these findings by arguing that the

agency did not base those findings on sufficient evidence.

This type of challenge—which entails looking at the agency’s

decision-making process to ensure that the agency relied on

11

Specifically, the Department charged ASSE with violating regulations

that (1) require exchange visitors to speak sufficient English to participate

in their programs, (2) prohibit placing exchange visitors for the purpose

of fulfilling a labor need instead of providing a genuine training program,

and (3) require program sponsors to educate and oversee the third parties

that they contract with. We have quoted the regulations, supra notes 2–7.

ASSE INT’L V. KERRY 19

sufficient evidence—is equally within our purview. See, e.g.,

Arrozal v. INS, 159 F.3d 429, 433 (9th Cir. 1998) (granting a

petition for review where the INS provided a “cursory and

generalized analysis of [the petitioner’s] favorable factors”);

Maldonado v. Dep’t of Agric., 154 F.3d 1086, 1088–89 (9th

Cir. 1998) (granting petition for review upon finding that the

Department of Agriculture’s decision was based on

“insufficient evidence”); Dodrill v. Shalala, 12 F.3d 915, 918

(9th Cir. 1993) (reversing the HHS’s determination that

claimant was not disabled based on the ALJ’s reliance on

insufficient evidence). That is so despite the fact that the

State Department’s regulations call upon the agency’s

expertise, judgment, and discretion. See Pinnacle, 648 F.3d

at 720 (“Although the [agency regulations] provide that the

[agency] determines the ‘sufficiency’ of a manufacturer’s

evidence and statements, the [agency regulations] do not give

the [agency] unbridled discretion.”); Newman v. Apfel,

223 F.3d 937, 943 (9th Cir. 2000) (“The fact that an agency

has broad discretion in choosing whether to act does not

establish that the agency may justify its choice on specious

grounds. To concede otherwise would be to disregard entirely

the value of political accountability, which itself is the very

premise of administrative discretion in all its forms.”); Beno,

30 F.3d at 1066 (holding that a HHS decision was reviewable

even though the statute permitted the Secretary to authorize

waivers only “to the extent and for the period the Secretary

finds necessary” and according to the Secretary’s “judgment”

(alteration and emphasis omitted)).

The district court found that ASSE alleged “that the State

Department reached the wrong conclusion in making [its]

findings, and gave weight to the wrong evidence,” and that

whether Amari spoke adequate English to participate in the

EVP or whether ASSE’s contractor, ACO, was properly

20 ASSE INT’L V. KERRY

trained were “questions well beyond the scope of any

meaningful review the Court could provide.” We respectfully

disagree. We do not review agency factfinding de novo

except when specially authorized. 5 U.S.C. § 706(2)(F);

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 414–15 (1971). But that does not mean that we cannot

review agency factfinding at all. We are to review the

Department’s decision to determine whether it was “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). Even though

we are “not empowered to substitute [our] judgment for that

of the agency,” our “inquiry into the facts is to be searching

and careful” and we are to determine “whether there has been

a clear error of judgment.” Overton Park, 401 U.S. at 416.

The APA prescribes the “substantial evidence” test for

review of formal agency proceedings. 5 U.S.C. § 706(2)(E).

We have recognized, however, that “as a practical matter, the

arbitrary and capricious standard incorporates the substantial

evidence test,” and we use that test for review of agency

factfinding in informal proceedings as well. Ursack Inc. v.

Sierra Interagency Black Bear Grp., 639 F.3d 949, 958 n.4

(9th Cir. 2011); see also Wileman Bros. & Elliott, Inc. v.

Espy, 58 F.3d 1367, 1374–75 (9th Cir. 1995), rev’d on other

grounds sub nom. Glickman v. Wileman Bros. & Elliott, Inc.,

521 U.S. 457 (1997). We have said that “[s]ubstantial

evidence means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Bonnichsen v. United States, 367 F.3d 864, 880 n.19 (9th Cir.

2004) (citing Richardson v. Perales, 402 U.S. 389, 401

(1971)); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th

Cir. 1991).

ASSE INT’L V. KERRY 21

In sum, we 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, we may review the State Department’s

determinations for substantial evidence.

III

We turn next to ASSE’s due process claim.12 A

procedural due process claim “hinges on proof of two

elements: (1) a protect[ed] liberty or property interest . . . and

(2) a denial of adequate procedural protections.” Pinnacle,

648 F.3d at 716 (quoting Foss v. Nat’l Marine Fisheries

Serv., 161 F.3d 584, 588 (9th Cir. 1998)). ASSE argues that

it has a protected interest in the DS-2019 forms, which are

required for each participant. Because the Department has a

limited number of forms, the Department regulates the

number of participants each sponsor can process.

Consequently, a reduction in DS-2019 forms to a sponsor

effectively reduces the sponsor’s business. The district court

assumed, without deciding, that ASSE had a protected

12

Having found that we may review the State Department’s action under

the APA, we are authorized to “hold unlawful and set aside agency action,

findings, and conclusions found to be . . . contrary to constitutional right,

power, privilege, or immunity; . . . [or] without observance of procedure

required by law.” 5 U.S.C. § 706(2)(B), (D).

We note, however, that even if we had found the State Department’s

action unreviewable under 5 U.S.C. § 701(a)(2), we would still be able to

review its decision insofar as ASSE had raised colorable constitutional

claims, unless Congress precluded such review. “[W]here Congress

intends to preclude judicial review of constitutional claims[,] its intent to

do so must be clear.” Webster v. Doe, 486 U.S. 592, 603 (1988). Nothing

in the Mutual Educational and Cultural Exchange Act of 1961 evidences

such intent.

22 ASSE INT’L V. KERRY

property interest in its allotment of DS-2019 forms, and

dismissed ASSE’s due process claim on the basis that ASSE

failed to state a claim that it was denied adequate procedural

protections. For purposes of this appeal, the State

Department has not contested that ASSE has a property

interest protected by the Due Process Clause. We too will

assume that ASSE has a protected property interest in its

allotment of DS-2019 forms.

The State Department’s regulations mandate that it give

adequate notice of its intent to impose sanctions and that it

invite and consider any response and accompanying evidence.

See 22 C.F.R. § 62.50(b)(2). ASSE concedes that the

Department followed that procedure in large part, but argues

that the procedure itself is inadequate because it does not

allow for an opportunity to confront evidence in a trial-type

setting. In addition, ASSE argues that even if the

Department’s paper-hearing procedure is constitutionally

sufficient, in this instance the procedures were inadequate

because the Department’s Notice of Intent did not provide a

sufficient summary of the evidence against ASSE, and the

Department relied on new evidence when it imposed

sanctions, depriving ASSE of a meaningful opportunity to

rebut.

Following the order of the district court’s analysis, we

will first decide whether the process ASSE received was

fundamentally fair. We agree with the Department that the

Due Process Clause does not mandate trial-type proceedings

here, but we hold that the Department did not provide

adequate procedural protections in this instance.

ASSE INT’L V. KERRY 23

A. ASSE Is Not Entitled to Trial-Type Procedures to

Confront Adverse Witnesses

ASSE argues that it should be able to confront Amari and

any other adverse witnesses in a trial-like setting—including

confrontation and cross-examination of witnesses. But we

conclude that the Due Process Clause does not mandate a

trial-type procedure here.

Due process “is not a technical conception with a fixed

content unrelated to time, place and circumstances.”

Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (internal

quotation marks omitted). Rather, it is “flexible and calls for

such procedural protections as the particular situation

demands.” Id. (internal quotation marks omitted). In

Mathews v. Eldridge, the Supreme Court established a

balancing test for determining how much process is due. It

requires that we consider three factors:

First, the private interest that will be affected

by the official action; second, the risk of an

erroneous deprivation of such interest through

the procedures used, and the probable value,

if any, of additional or substitute procedural

safeguards; and finally, the Government’s

interest, including the function involved and

the fiscal and administrative burdens that the

additional or substitute procedural

requirement would entail.

Id. at 335. A careful consideration of the factors reveals that

while the Department must give ASSE an accounting of the

evidence on which it relied, it need not conduct oral hearings

24 ASSE INT’L V. KERRY

or afford sponsors the opportunity to confront or cross-

examine witnesses.

First, we consider the effects of the Department’s

sanctions decision on ASSE. See id. The imposition of

“lesser sanctions” deprives ASSE of 15% of its DS-2019

forms for one-year and results in a public listing that ASSE

has been sanctioned on the State Department’s website. This

reduction, although temporary, does impact ASSE’s ability to

participate as a sponsor in the EVP and results in some

financial loss. Moreover, the sanctions and the agency’s

underlying findings stay on ASSE’s file with the State

Department permanently, and that record forms the basis for

the agency’s decision to re-designate ASSE as a sponsor in

future years. See 22 C.F.R. § 62.7(c). In addition, ASSE’s

business operates on referrals throughout a global EVP

network, and public sanctions listed online may damage those

relationships. Thus, ASSE’s private rights at stake are

significant, albeit they are less so since the sanctions are

temporary and ASSE’s status as a sponsor is not at issue in

these proceedings.

Second, we consider the risk of erroneous deprivation if

the Department grants ASSE only a paper hearing, as

opposed to other trial-type proceedings. That is, we ask what

is the risk that the State Department, employing its less

formal procedures based on a paper record, will make a

mistake. We conclude that such a risk is low, so long as the

Department affords ASSE a complete paper hearing and

reveals all material evidence it intends to rely on. Our

decision that due process does not require full judicial or

trial-type proceedings is far from novel. See Pinnacle,

648 F.3d at 717; Buckingham v. Sec’y of U.S. Dep’t of Agric.,

603 F.3d 1073, 1082–83 (9th Cir. 2010); United States v.

ASSE INT’L V. KERRY 25

Clifford Matley Family Tr., 354 F.3d 1154, 1162 (9th Cir.

2004); see also Brock v. Roadway Express, Inc., 481 U.S.

252, 266 (1987) (“We conclude, however, that as a general

rule the employer’s interest is adequately protected without

the right of confrontation and cross-examination, again so

long as the employer is otherwise provided an opportunity to

respond at a meaningful time and in a meaningful manner.”

(internal quotation marks omitted)); Goldberg v. Kelly,

397 U.S. 254, 266 (1970) (holding that the constitutionally

required process “need not take the form of a judicial or

quasi-judicial trial”).

ASSE argues that oral cross-examination is especially

important in situations like this one where the evidence

against ASSE comes almost exclusively from one person’s

accusations. But a party’s opportunity to rebut agency

evidence need not come in the form of oral cross-examination

of witnesses. Buckingham, 603 F.3d at 1082–83 (citing

cases); see Brock, 481 U.S. at 266. The opportunity to refute

unfavorable evidence in some fashion, however, is an

“immutable” principle of procedural due process: “[W]here

governmental action seriously injures an individual, and the

reasonableness of the action depends on fact findings, the

evidence used to prove the Government’s case must be

disclosed to the individual so that he has an opportunity to

show that it is untrue.” Greene v. McElroy, 360 U.S. 474,

496 (1959).

We do not insist that the State Department conduct

plenary hearings, even where a sponsor’s interest (like

ASSE’s) in avoiding lesser sanctions is significant. The EVP

26 ASSE INT’L V. KERRY

is a program of limited duration13 for which the State

Department relies on third-party sponsors and their

contributors to administer the program according to the

regulations. Although witness credibility might occasionally

be at issue, violations of the State Department regulations

will, in the main, be established—and investigated—through

paper records, including written witness statements. The

State Department may, of course, determine at any time to

conduct more formal hearings, but sponsors facing lesser

sanctions are not entitled to such a hearing. As we observed

in Pinnacle, “as judges, we tend to favor the kind of hearings

that are familiar to us,” but “[ASSE] has not made the case

that the Due Process Clause demands more formal

proceedings in this case. . . . [T]here is no evidence that live

testimony would improve the quality of the [State

Department’s] decision.” Pinnacle, 648 F.3d at 717.

The third Mathews factor further supports our decision

that trial-type proceedings are not required here. Although

the Department will incur some financial and administrative

cost to conduct a paper hearing and send ASSE a complete

record of its adverse evidence, it would face a much greater

burden if required to engage in trial-type proceedings in cases

which, like this one, involve foreign exchange participants.

We recognize that the Department has an interest in the

expeditious resolution of these claims. The Department has

a strong interest in the comfort and welfare of exchange

visitors according to the EVP’s mandate that it operate to

“strengthen international cooperative relations.” See

22 U.S.C. § 2452(a). The State Department’s regulations for

13

“[T]he maximum duration of a training program is 18 months, and the

maximum duration of an internship program is 12 months.” 22 C.F.R.

§ 62.22(k).

ASSE INT’L V. KERRY 27

administering the EVP “are intended for the protection of the

visitor,” and we acknowledge that it may be very traumatic

for foreign exchange participants to be subjected to

American-style trial procedures, undermining the very goals

of the program. See Beul v. ASSE Int’l, Inc., 233 F.3d 441,

445 (7th Cir. 2000).

Subject to constitutional constraints, an agency has broad

discretion in choosing the form of the proceeding that it will

conduct. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def.

Council, Inc., 435 U.S. 519, 543–44 (1978). Agencies are

“free to fashion their own rules of procedure and to pursue

methods of inquiry capable of permitting them to discharge

their multitudinous duties.” FCC v. Schreiber, 381 U.S. 279,

290 (1965) (internal quotation omitted). Because we find that

trial-type proceedings are not constitutionally required here,

we leave the question whether to grant ASSE such additional

procedures to the Department’s discretion.

B. The State Department Failed to Provide ASSE a

Meaningful Opportunity to Rebut Key Evidence

Next, we address ASSE’s claim that the paper-hearing

provided inadequate process because it was deprived of a

“meaningful” opportunity to rebut evidence that the State

Department relied on in its imposition of sanctions. Although

we find the question close, for reasons explained below, we

agree.

“The fundamental requisite of due process of law is the

opportunity to be heard[] . . . at a meaningful time and in a

meaningful manner.” Goldberg, 397 U.S. at 267 (citations

and internal quotation marks omitted). And “fundamental

fairness”—the “touchstone” to determining whether a

28 ASSE INT’L V. KERRY

plaintiff received due process, Harrington, 749 F.3d at 828

(quoting Walters v. Nat’l Ass’n of Radiation Survivors,

473 U.S. 305, 320–21 (1985))—“requires that a party against

whom an agency has proceeded be allowed to rebut evidence

offered by the agency if that evidence is relevant,” Carnation

Co. v. Sec’y of Labor, 641 F.2d 801, 803 (9th Cir. 1981). See

Sw. Sunsites, Inc. v. FTC, 785 F.2d 1431, 1436–37 (9th Cir.

1986) (noting that a relevant consideration in a due process

analysis is whether the parties “had an opportunity to rebut”

evidence against them and finding no due process violation,

in part, because the petitioners did have an “opportunity to

respond to the documents” brought against them); see also

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985); Greene, 360 U.S. at 496; Buckingham, 603 F.3d at

1082 (“The base requirement of the Due Process Clause is

that a person deprived of property be given an opportunity to

be heard at a meaningful time and in a meaningful manner.”

(emphasis added) (internal quotation and citation omitted)).

ASSE contends that the State Department withheld

material details from it—details underlying the Department’s

and Amari’s accusations against ASSE and which the

Department later relied on in imposing sanctions.14 ASSE

alleges that by failing to disclose this evidence, the

Department deprived ASSE of a meaningful opportunity to

rebut its accusations.

14

ASSE makes one due process claim that does not fit this mold; it

argues that it supplied the Department with exculpatory evidence—

evidence from a co-trainee who reported positive experiences with her

training—that the Department ignored. We note ASSE’s claim, but we

rely on the more significant claim that ASSE was denied a meaningful

opportunity to rebut the charges against it.

ASSE INT’L V. KERRY 29

1. Summary of Amari’s Interview with the State

Department

First, ASSE argues that the Department relied almost

exclusively on Amari’s own ex parte testimony and that such

testimony was never disclosed to ASSE. ASSE argues that

the Department failed to produce any evidence underlying the

third-party harassment of Amari alleged and cited by the

State Department in the Notice of Intent. ASSE contends that

due process required the Department to give ASSE an

opportunity to confront Amari’s testimonial evidence in some

form, and that the summary the State Department provided

was inadequate.15

The Notice of Intent explains:

Specifically, after a two hour interview on

February 16 with Ms. Amari (speaking only

through an interpreter), the Office determined

that Ms. Amari was being harassed by third

parties – The Cream Pot (host organization),

American Career Opportunity (domestic and

foreign third party), and Global Associates

(foreign third party). Ms. Amari told of

having endured almost 30 separate instances

of harassment, threats regarding her

15

In its Imposition of Lesser Sanctions, the Department noted that

“ASSE does not address this harassment in its Statement.” The

Department might have argued that ASSE had waived this argument about

the third-party harassment claims by “not address[ing] this.” But the

Department did not make this argument in its brief and has thus forfeited

its waiver argument. See United States v. Jacobo Castillo, 496 F.3d 947,

952 n.1 (9th Cir. 2007) (en banc); United States v. Garcia-Lopez, 309 F.3d

1121, 1123 (9th Cir. 2002).

30 ASSE INT’L V. KERRY

immigration status, and threats to her family

if she did not remain silent about the working

conditions imposed by the three third parties.

A summary of evidence may, in certain circumstance,

provide sufficient notice to allow a meaningful opportunity to

respond. See Loudermill, 470 U.S. at 546 (in some

circumstances, due process will be satisfied by an

“explanation of the . . . evidence” and opportunity to

respond). Moreover, unlike other cases where we have found

a summary of testimony inadequate, the State Department’s

summary of the interview did provide many crucial details

about the identity of the interviewee, involved parties, and the

content of the allegations. See, e.g., Kaur v. Holder, 561 F.3d

957, 960–62 (9th Cir. 2009) (summary stating only that

“reliable, confidential sources have reported that [the alien]

has conspired to engage in alien smuggling; has attempted to

obtain fraudulent documents; and has engaged in immigration

fraud by conspiring to supply false documents for others” was

insufficient); see also Greene, 360 U.S. at 496, 508 (failure

to provide information regarding the identity or source of

confidential informant/evidence did not “comport with . . .

traditional ideas of fair procedure”).

Yet, in this case the government does not assert that the

actual interview notes, or transcript, if it exists, from the

interview, are confidential. Thus, the government’s interest

in relying on a summary, rather than providing interview

notes or a transcript, is minimal. On the other hand, had the

Department given ASSE more details about Amari’s

accusations, ASSE claims it may have been able to produce

evidence refuting them. Such evidence may have affected the

Department’s decision as to the severity of sanctions, or

whether to even impose sanctions at all. Furthermore, the

ASSE INT’L V. KERRY 31

Department’s evidence of harassment came solely from

Amari—with no record of any supporting evidence.16 Thus,

the risk of an erroneous decision was heightened, and the

State Department should have provided ASSE with complete

interview notes so it would have an opportunity to rebut the

details of the harassment.

2. ASSE Representative Fei Jiang’s Email

Second, ASSE points to the Department’s reliance on an

email that the Department noted in its Imposition of

Sanctions but did not reference in its Notice of Intent.17 In

16

ASSE also argues that the State Department relied on the fact that

DHS had issued Amari a T Visa. ASSE argues that it did not have access

to evidence presented to DHS and that the DHS proceeding was a “black

box” it could not penetrate. But importantly, the State Department did not

rely on any evidence submitted to DHS and withheld from ASSE. Rather

the State Department relied only on the fact that DHS issued the T Visa

and that the Department should not “ignore the fact that [DHS] considers

Ms. Amari to have shown sufficient evidence of human trafficking while

participating in ASSE’s exchange visitor program.” We find no error in

relying on this fact. The State Department disclosed DHS’s issuance of

the T Visa in its Notice of Intent to impose sanctions, so ASSE had ample

opportunity to explain or rebut that fact.

17

ASSE also argued that it was deprived of a meaningful opportunity for

rebuttal in an additional instance when the Department expanded its

account of its interactions with Amari in its Imposition of Lesser

Sanctions beyond what it relayed in the Notice of Intent to impose

sanctions. In the Notice, the only detail about an interview with Amari on

February 16, 2012 was that the Department representatives spoke to

Amari “only through an interpreter.” But after acknowledging ASSE’s

argument that the use of an interpreter “is not, standing alone, ‘evidence

that [Amari] cannot speak English,’” the Imposition of Lesser Sanctions

elaborated its account, stating that other government officials present at

the meeting had confirmed “that their attempts to converse informally with

Ms. Amari in English without the assistance of the interpreter were to no

32 ASSE INT’L V. KERRY

the February 2012 email to the Department, ASSE

representative Fei Jiang stated that Amari’s “English

appeared to be not at an acceptable level for the purpose of

this program,” and that ACO had been “negligent.”

The State Department cites to this email in a footnote in

its Imposition of Sanctions, concluding that Ms. Jiang

“virtually admitted . . . that Ms. Amari should not have been

selected.” The question of Amari’s English skills was a key

dispute between ASSE and the State Department. And

although ASSE’s claimed ignorance of this email, which was

sent by one of its own employees involved in handling the

State Department’s inquiry into Amari’s status, may trigger

some skepticism, it is true that the State Department did not

rely on or mention that email in the Notice of Intent.

Including its reliance on the email would not be burdensome,

and ASSE alleges that had it been given notice that the

Department would rely on this statement, ASSE could have

explained and rebutted Ms. Jiang’s statement. It argues that

Amari’s apparent lack of English ability was more likely the

result of “instructions by the anti-trafficking organization

representing her not to speak with ASSE staff.” As the State

Department failed to mention this piece of evidence in its

initial Notice of Intent, ASSE was deprived of a meaningful

opportunity to rebut the evidence.

* * *

The State Department does not challenge ASSE’s claims

that it did not get an opportunity to address key evidence.

Instead, it argues that the Due Process Clause does not

avail due to Ms. Amari’s insufficient English,”—a small but significant

detail that ASSE did not have the opportunity to explain or defend against.

ASSE INT’L V. KERRY 33

require it to conduct trial-type proceedings, a claim we

resolved in the previous section. The Department claims that

the paper-hearing process it provided is a “hearing

appropriate to the nature of the case,” and thus

constitutionally sufficient. Loudermill, 470 U.S. at 542

(internal quotation marks omitted).

The government’s argument misses the mark. True, we

have observed that “although due process guarantees ‘some

kind of hearing . . . at some time before a person is finally

deprived of his property interests,’ a full evidentiary hearing

is not required in every case.” Clifford Matley Family Tr.,

354 F.3d at 1162 (quoting Memphis Light, Gas & Water Div.

v. Craft, 436 U.S. 1, 16 (1978); other citations omitted).

Thus, written submissions may be sufficient—and are in this

case—to satisfy the Due Process Clause. See Pinnacle,

648 F.3d at 717; Clifford Matley Family Tr., 354 F.3d at

1162. Here, however, the Notice of Intent did not fully

advise ASSE of the evidence against it, and ASSE was not

given an additional opportunity to respond to the new

evidence once the State Department mentioned this evidence

in the imposition of sanctions. Thus, ASSE was deprived of

any “meaningful” opportunity to rebut some of the State

Department’s adverse evidence.

The Department withheld important evidence that it based

its sanctions on, the primary example being the sparse

evidence underlying Amari’s harassment claims. In its

Notice of Intent to impose sanctions, the Department

provided a very brief summary of Amari’s claims without

producing any evidentiary support, such as the interview

notes or transcript. At the very least, the State Department

should have attached the specific allegations on which it

relied, instead of briefly summarizing Amari’s claim of

34 ASSE INT’L V. KERRY

almost “30 separate instances of harassment.” This

evidentiary showing is not enough to satisfy the due process

requirement that a party receive a meaningful opportunity to

rebut the evidence an agency brings against it. Moreover, the

State Department relied on additional evidence, unmentioned

in the Notice of Intent, when imposing sanctions. ASSE did

not have an opportunity to rebut these pieces of evidence as

they were not mentioned in the Notice of Intent, and ASSE

was not afforded an opportunity to submit a response to the

Imposition of Sanctions.

In sum, 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. The district court erred in

finding that ASSE failed to state a claim because the process

afforded was fundamentally fair.

Furthermore, the issue of whether ASSE has a protected

property interest was not fully briefed, and as it also has not

been passed upon in the first instance by the district court, we

decline to reach the issue. See Dodd v. Hood River Cnty.,

59 F.3d 852, 863 (9th Cir. 1995). Instead, we remand to the

district court to decide in the first instance whether ASSE has

a protected property interest, and if so, whether the due

process violation it suffered was harmless error. See Al

Haramain Islamic Found., Inc. v. U.S. Dep't of Treasury,

686 F.3d 965, 989 (9th Cir. 2012) (“[The claimant] must

establish that, had it been provided the process it was due, it

could have, and plausibly would have, taken steps to

undermine [the State Department’s imposition of sanctions]

such that [the State Department] would not have [imposed

sanctions] or that substantial evidence would not have

supported the [imposition of sanctions].”).

ASSE INT’L V. KERRY 35

IV

We hold the district court erred in dismissing ASSE’s

complaint. The State Department’s imposition of sanctions

is subject to APA review and ASSE has stated a claim that it

received constitutionally inadequate procedural protections.

Accordingly, we reverse the district court’s dismissal of

ASSE’s claims and remand to the district court for further

proceedings consistent with this opinion. Costs on appeal are

awarded to ASSE.

REVERSED and REMANDED.