CIT Says No Standing for Anti-Forced Labor Group to Challenge CBP Inaction on WRO Petition

The Court of International Trade on Aug. 8 said anti-forced labor advocacy group International Rights Advocates (IRAdvocates) doesn't have standing to challenge CBP's inaction in responding to a petition to ban cocoa from Cote d'Ivoire. Judge Claire Kelly said IRAdvocates failed to show that CBP's inaction "has harmed a core business or diminished any asset."

Terrence Collingsworth, counsel for IRAdvocates, said in an email that the group will appeal the decision. "The Court applied an extremely narrow standard of standing that will essentially prevent organizations from establishing organizational injury," he said.

Kelly anchored the 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, a pill used to terminate a pregnancy up to 10 weeks.

IRAdvocates based its claim for standing to challenge CBP's inaction on its withhold release order petition on cocoa from Cote d'Ivoire 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."

In that decision, advocacy group Housing Opportunity Made Equal was found to have suffered concrete harm by Havens Realty Corp.'s racist housing practices. The court said the group had standing, since it didn't just expend resources in advancement of its advocacy efforts but actually suffered concrete harm to its "ability to provide counselling and referral services for low- and moderate-income homeseekers."

The Supreme Court applied this rationale in Alliance, finding that the pro-life groups suffered no comparable harm to its non-advocacy, concrete business practices in arguing against FDA's approval of mifepristone.

Finding similarities between the claims of IRAdvocates and the pro-life groups, Kelly said the anti-forced labor organization didn't suffer any harm to its core business or assets. The group's injury "rests not on harm to a core business, but solely on CBP’s failure to issue a WRO for cocoa imported from the Ivory Coast or to otherwise take action in response to the Petition," the judge said.

IRAdvocates' resources expended to get CBP to act the way the group would like "do not constitute injury in fact," the court held. Kelly said "the federal courts are inappropriate forums for an organization to challenge a federal agency’s actions based on that organization’s mere ideological objection to the agency’s choices.” Instead, all expenditures relate to IRAdvocates' goal of "public education and mobilization, research, litigation, legislation, and collaboration with labor, government and business groups.”

The court added that IRAdvocates failed to establish the other two elements of Article III standing -- causation and redressability. Regarding whether the group could draw a causal link between its injury and CBP's conduct, Kelly said the group's expenses "relate to those made in the routine operations of an organization seeking 'to achiev[e] just and humane treatment for workers worldwide.'"

The judge said even if she told CBP to respond to the petition, there's no guarantee CBP would act the way IRAdvocates wants. "There is no guarantee that action from CBP will immediately, or even eventually, put an end to forced child labor in the Ivory Coast," the decision said.

(International Rights Advocates v. Alejandro Mayorkas, CIT # 23-00165, dated 08/08/24; Judge: Claire Kelly; Attorneys: Terrence Collingsworth for plaintiff International Rights Advocates; Aimee Lee for defendant U.S. government)