Anti-Forced Labor Group Fights Dismissal of Challenge to WRO Petition Denial

Anti-forced labor nonprofit International Rights Advocates said that it has standing to sue CBP over its inaction in responding to a petition alleging that cocoa from Cote d'Ivoire is made with forced child labor. Responding to the government's motion to dismiss (see 2312180058), International Rights Advocates said it suffered a concrete injury by being forced to divert "substantial resources" to "gather and submit additional and updated evidence of forced labor" following CBP's inaction on the petition (International Trade Advocates v. U.S., CIT # 23-00165).

CBP's inaction on the petition, which it eventually denied, "would make a Soviet bureaucrat blush," the nonprofit said. "CBP sat on the evidence for nearly three years, delaying any action until it unilaterally declared could no longer take any action based on that evidence," the brief said. This conduct stands as the "epitome of unreasonable delay," in violation of the Administrative Procedure Act (APA), the nonprofit argued.

International Rights Advocates had submitted a petition In 2020, along with the Corporate Accountability Lab and the University of California Irvine Law School's Human Rights Clinic, for the U.S. to impose a withhold release order on cocoa from Cote d'Ivoire. The nonprofit said the petition languished for nearly three years, after which CBP denied the petition, claiming that the evidence relied on by the petitioners was "dated."

The U.S. defense here would let CBP "insulate itself" from the obligation to timely act on petitions issued under Section 307 of the Trade Act of 1930 by "merely doing nothing for several years and then declaring the matter closed because the evidence is no longer timely," the brief said.

The government said in its dismissal bid that International Rights Advocates lacks standing to sue, but in response, the group said it has "organizational standing under fundamental precedents of the U.S. Supreme Court." The high court ruled in Havens Realty Corp. v. Coleman that an organization's injury in fact is established when the defendant's actions or inaction have "perceptibly impaired" the group's activities, causing a "concrete and demonstrable injury" and a "consequent drain on the organization's resources."

The nonprofit claimed CBP's failure to act on the petition has "perceptibly impaired" the group's "core mission" and has "directly resulted in a diversion of the organization's resources." International Rights Advocates said it advocates for the enforcement of labor rights via "public education and mobilization, research, litigation, legislation, and collaboration with labor, government and business groups." The group said CBP's conduct created a direct link between the agency's action and the "organization's missions," citing the U.S. Court of Appeals for the D.C. Circuit's ruling in Abigail Alliance for Better Access to Development Drugs v. Eschenbach for support.

In that opinion, the court said the first Havens test prong was met where the organization's activities of providing counseling services for terminally ill patients in accessing life-saving drugs were "impeded" by FDA regulations that forced the group to "divert significant time and resources from these activities towards helping its members" address the FDA's requirements. International Rights Advocates said its situation is comparable, since "it has been four years since" the group submitted its petition, making CBP's failure to act a direct conflict with the nonprofit's "mission of putting an end to forced labor" and an impediment to its activities aimed at achieving this goal.

"CBP’s refusal to act sends a message to all chocolate companies that the highest mountain of evidence regarding forced child labor will not stop their imports of cocoa from entering the United States," the brief said. "This represents far more than a mere setback to IRAdvocates’ mission."

International Rights Advocates added that the failure to act directly led to a diversion of its resources since it had to generate new evidence for the agency. The U.S. said these costs were just expenditures in anticipation of litigation or advocacy. In response, the nonprofit said these resources are not used for litigation but to "gather and provide additional information to CBP as a result of its unreasonable delay in taking any required action on the original Section 307 Petition."

The nonprofit challenged the government's claim that the only agency action which can be compelled under the APA is a discrete agency action that is legally required, which does not include CBP's inaction. International Rights Advocates said it seeks a "discrete" agency action in getting CBP to investigate the forced labor claims and that action is required under Section 307's directive that goods made using forced labor "shall not be entitled to entry at any of the ports of the United States."