US Defends Alleged Inaction on Claim Chocolate Exporters Used Child Labor, Seeks Dismissal

The U.S. said in a Dec. 15 motion to dismiss that CBP has discretion in deciding how to pursue investigations on forced labor allegations, including how long those investigations may take, how much information CBP will reveal and whether action will be taken at all (International Rights Advocates v. Alejandro Mayorkas, CIT # 23-00165).

The U.S. asked the Court of International Trade to dismiss a lawsuit brought against it by the anti-forced labor nonprofit International Rights Advocates.

International Rights Advocates, along with the Corporate Accountability Lab and the University of California Irvine Law School’s Human Rights Clinic brought its case against DHS Secretary Alejandro Mayorkas and acting CBP Commissioner Troy Miller, asking the court to force them to ban chocolate from Cote d’Ivoire imported to the U.S. by seven major chocolate companies.

The nonprofit said it provided evidence to CBP more than three years ago that the chocolate was made using the forced labor of children. Since then, CBP has not acted to ban the products, although it is required to under the Tariff Act of 1930, it said.

In 2018, Commerce established its Forced Labor Enforcement Division under CBP to counter forced labor practices. When a party outside the CBP has evidence of such practices, they bring it to the division, which decides whether or not to start an investigation.

CBP can investigate merchandise imported into the U.S. alleged to have been produced by forced labor, but it sets the scope and time frame for those investigations, DOJ said in its motion to dismiss.

It argued International Rights Advocates’ lawsuit couldn't be brought because the nonprofit itself hadn't suffered sufficient harm. The resources it spent on its own investigation of the chocolate producers wasn't enough, nor could those resources be clearly linked to any fault on the part of CBP, DOJ said.

Although the Tariff Act allows “any person” to bring claims about forced labor to CBP, it doesn't grant to anyone who does so the standing to then file suit against CBP for apparent failure to act, it said.

Furthermore, it said, no laws provide specifically for what CBP must do in response to a forced labor allegation.

“IRAdvocates’s desire for a specific outcome or response from the agency on a specific timeline is not a valid basis to compel an action,” it said.

The only times the court has forced CBP to take action have been in cases in which statutory language has left nothing up to CBP’s discretion, it said. CBP does have discretion in this case, it said.

DOJ also argued that there has been no impermissible delay in this case. It said an investigation’s scope -- including how many exporters are involved -- may result in a longer time frame.

Courts generally offer agencies much leeway before determining a delay has lasted too long, DOJ said. The usual standard is that an agency must be governed by a “rule of reason” in how long it may take to make a decision.

“CBP’s investigation of these complex and wide-ranging allegations necessarily requires extensive time and resources, and cannot be said to be reasonably delayed,” DOJ said.

Also, CBP sometimes works closely with law enforcement, and thus cannot reveal any information about those investigations while they are ongoing, it said. Some things may be kept confidential even after CBP acts, it added.