Anti-Forced Labor Group Tells CAFC That CBP Inaction on WRO Bid Injured the Group

The Court of International Trade failed to take anti-forced labor advocacy group International Rights Advocates' (IRAdvocates') allegations as true when ruling on whether the group had standing to challenge CBP's inaction on a petition to ban cocoa from Cote d'Ivoire, IRAdvocates argued in its opening brief at the U.S. Court of Appeals for the Federal Circuit on Nov. 12. The advocacy group said it suffered injury-in-fact, since CBP's "failure to enforce Section 307" deprived the group of a "major tool in its foundational purpose of ending forced child labor in cocoa harvesting" (International Rights Advocates v. United States, Fed. Cir. # 24-2316).

The trade court in August dismissed IRAdvocates' suit for lack of standing, holding that the group failed to show that CBP's inaction harmed a "core business or diminished any asset" (see 2408080049). CIT rooted its decision in the Supreme Court's recent holding in FDA v. Alliance for Hippocratic Medicine, which denied pro-life advocacy groups standing to challenge the FDA's approval of mifepristone.

IRAdvocates based its claim for standing on the concept of "organizational standing." The high court established this type of standing in Havens Realty Corp. v. Coleman, finding that "an organization sufficiently pleads an injury in fact when it identifies a concrete harm to the organization."

The advocacy group heavily leaned on Havens in its opening brief at the Federal Circuit, noting how the Supreme Court even sought to distinguish its decisions on standing in Havens and Alliance.

In Havens, an organization created to advance equal opportunity housing in Richmond, Virginia, HOME, sued a real estate firm for "racial steering" in violation of federal law. The Supreme Court said the organization had standing since the realtor's practices impaired the group's "core mission," which involved providing counseling and referral services. In Alliance, the high court distinguished the harm suffered by HOME and the pro-life group by saying the realtor intentionally provided HOME with false information, akin to "defective goods" that injured HOME's ability to provide counseling and referral services.

IRAdvocates claimed that its injury is like the injury suffered by HOME, since, unlike the pro-life group, "IRAdvocates did not expend money and time to oppose, challenge, or spread awareness of a mere policy interest," the brief said. Instead, the group said it spent "significant time and resources" to "target CBP's unlawful failure to take the action required by Section 307 and act upon IRAdvocates' meritorious Petition" for a withhold release order. Assuming, as the court is required to do on motions to dismiss, the merits of the group's claim, CBP was required to act, the brief said.

The failure to act and CBP's defense that the evidence of child labor offered by IRAdvocates in the petition had become too dated following "three years of unreasonable delay by CBP," amounts to the "defective goods" analogy offered by the Supreme Court in Havens, the group argued.

IRAdvocates added that the court utterly failed to assume the merits of the group's position in stripping IRAdvocates of an "important tool" meant to prevent forced labor, which meets a "key objective of IRAdvocates' foundational mission." While the court said alternative avenues to preventing forced labor are present, the group said these other routes "have been largely foreclosed" and that closing off Section 307 impairs the group's "institutional mission of using litigation to stop forced child labor."

The trade court also found that IRAdvocates failed to establish that CBP's inaction caused the harm to the group and that successful litigation wouldn't redress the harm. On redressability, the court said an order compelling CBP action wouldn't end child labor in the cocoa harvesting industry in Cote d'Ivoire.

In its appeal, IRAdvocates argues that it's not seeking an order from CIT to end child labor but a "limited procedural remedy established by the" Administrative Procedure Act that CBP respond to the group's petition. There's "no question this requested relief could have been redressed by a favorable decision," the brief said. Whether CBP action has an impact on ending forced child labor "is pure speculation and is essentially irrelevant to whether the CIT could redress IRAdvocates' core complaint," the brief said.