US Says Anti-Forced Labor Group Has No Standing to Challenge Delay on WRO Petition

The U.S. on May 3 defended its claim that anti-forced labor nonprofit International Rights Advocates doesn't have standing to sue CBP over its inaction in responding to a petition alleging cocoa from Cote d'Ivoire is made with forced child labor. Filing a brief in support of its motion to dismiss the suit, the government argued that IRAdvocates can't show injury-in-fact from CBP's purported inaction, and that the Court of International Trade can't compel discretionary law enforcement action in the form of a withhold release order (International Rights Advocates v. Alejandro Mayorkas, CIT # 23-00165).

The government said IRAdvocates failed to qualify for each of the constitutional requirements for standing to sue -- injury-in-fact, causation and redressability.

Regarding injury-in-fact, the U.S. said that IRAdvocates must show that it has suffered injury "beyond mere harm to the interests for which it advocates," citing a 2020 U.S. Court of Appeals for the D.C. Circuit opinion saying as much. "IRAdvocates has failed to make any such showing," the brief said, arguing that the group can't just claim that CBP's delay in concluding its investigation into the Cote d'Ivoire cocoa industry harms its mission and activities.

The government said there's no direct conflict between CBP's actions here and IRAdvocates' mission of ending forced labor (see 2402230046). The fact that the investigation is taking longer than the group wants is not a direct conflict with the group's mission, the brief said. In fact, the investigation may lead to the "very action that IRAdvocates seeks," the U.S. said.

Even where an organization can show that the conduct directly conflicts with its mission, the group must also show that the defendant's actions have made its activities more difficult. Here, while IRAdvocates generally says its activities have been affected, it "fails to identify a single operation or service that has been inhibited or disrupted by CBP's alleged inaction."

IRAdvocates also fails to establish injury though its claims that it has had to divert resources to counter CBP's delay, the brief said. IRAdvocates said that it needed resources to convince CBP to take enforcement actions, pointing to three meetings with the agency, trips to West Africa to collect evidence and preparation of supplemental materials and collaboration with civil society organizations. The government said "these expenditures were no different from its normal advocacy operations.”

If these types of activities, which are "intrinisic" to the group's "normal operations," relied upon by IRAdvocates to assert injury-in-fact are proof enough, then IRAdvocates "would effectively be able to claim standing any time its advocacy efforts failed to achieve a desired enforcement outcome," the brief said. "The test for standing requires more.”

The U.S. added that IRAdvocates don't fall within the 19 U.S.C. 1307 forced labor statute's "zone of interests." IRAdvocates employed the "suitable challenger" theory, which gives standing to parties not contemplated by the statute but who can be expected to police the interests the statute protects. The government said the U.S. Court of Appeals for the Federal Circuit hasn't adopted this standard and, even if it did apply, it's inapposite since Section 1307 is for protecting the domestic industry and workers from the unfair competition that stems from the import of goods made with forced labor.

The government said the case should be dismissed because, even if standing exists, the court can't compel CBP to issue a WRO under Section 1307. IRAdvocates said the word "shall" in the statute is evidence that CBP must deny entry to goods made with forced labor. The U.S. said that the law doesn't tell CBP "whether or how to determine that goods are made with forced labor at points throughout the supply chain, whether those goods are indeed bound for the United States, or the mechanisms by which CBP should deny entry once it makes a determination."

The advocacy group said CBP's view of its enforcement discretion would "effectively repeal" the law, making it meaningless. The government claimed that this "hyperbolic criticism ignores that CBP regularly and resolutely enforces Section 1307," evidenced by nine WROs issued against Chinese forced labor users in Xinjiang since 2019.

"At base, IRAdvocates simply disagrees with the manner in which CBP is conducting the investigation of IRAdvocates’s particular allegations," the brief said. Should the advocacy group win out, a new "regime" would take root, in which an alleger can get the court to substitute its judgment for the agency's if it doesn't approve of how the agency "investigates and develops a case." The Supreme Court "rejected this exact scenario," the U.S. said.