Anti-Forced Labor Group Could Use Other Plaintiffs to Establish Standing at CIT If Appeal Fails

Last week, the Court of International Trade said anti-forced labor advocacy group International Rights Advocates (IRAdvocates) didn't have standing to challenge CBP's inaction in responding to a petition to ban cocoa from Cote d'Ivoire, alleging that it's harvested by child labor (see 2408080049). Speaking with Trade Law Daily, Terrence Collingsworth, counsel for IRAdvocates, said he intends to appeal the decision but, should that fail, he is ready to bring alternative plaintiffs before the court who may more clearly establish standing.

Collingsworth said he might "refile a petition with a different petitioner who would have standing," including the child laborers themselves or chocolate retailers injured by competing with the "child-labor harvested cocoa." He said he works with partners in West Africa to identify child laborers willing to aid in efforts to end the practice of child slavery.

This development illuminates the present state of organizational standing before the trade court and strategic decisions advocacy groups may have to make in the face of the court's most recent decision. In that ruling, Judge Claire Kelly invoked 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.

Kelly said organizational standing may only be claimed if the advocacy group suffers harm to its core business or assets and that IRAdvocates' resources spent trying to get CBP to rule on its petition didn't fit the bill.

Collingsworth said he thinks he has a fair shot on appeal because IRAdvocates' "core business" is anti-forced labor advocacy. He said Kelly "just glossed over this and acted as if it were nothing that the CBP failure to act took away from us one of our most important tools to try to stop child labor."

Larry Friedman, partner at Barnes Richardson, said in an email that there are "unfortunately" few chances to use customs and trade laws to "protect non-economic interests," and that Alliance "makes that even harder." Friedman said, as Collingsworth suggested, that plaintiffs "will have to find a person or organization with real and direct harm from governmental action or inaction."

The trade court also said IRAdvocates failed to clear the element of redressability in asserting standing -- the principle that the court must be able to redress the plaintiff's injury. Since the court can't compel CBP to rule a certain way on the petition, Kelly said redressability wasn't present. Collingsworth disagreed, arguing that just getting CBP to rule on the petition clears this hurdle and "establishes the accountability that we say is lacking."

He said the group doesn't "need to win before CBP." One point of the entire suit is to "take away from CBP the ability to just ignore petitions," Collingsworth said. He added that most of the "human rights world is pretty disgusted with" CBP since they ignore petitions and "act arbitrarily."

Collingsworth said he has spoken with individual CBP officers who claim to be overwhelmed with the amount of work they have in defense of their inaction. "I don't give a fuck," Collingsworth says in response to that, he said: "You have a statutory obligation to do this, and every day, year, two years, four years that you didn't act, there are child slaves that are harvesting cocoa who wouldn't have done that if you would act."

If IRAdvocates' standing claim ultimately triumphs, CBP may soon be facing an onslaught of lawsuits regarding a wide range of issues. For instance, John Peterson, partner at Neville Peterson, said non-governmental organizations could sue the Forced Labor Enforcement Task Force regarding petitions to add firms to the Uyghur Forced Labor Prevention Act Entity List. "I think Customs would quickly lose control of UFLPA enforcement," Peterson said in an email.

However, Collingsworth insisted that a limiting principle is still in place: enforcement must be the core of the plaintiffs' business model. Far from having any group file suit over a regulatory action it doesn't like, "you have to show that it's part of your mission as an NGO," he said. In this case, Collingsworth said IRAdvocates "probably spent $200,000 on the supplemental research and petitions that we filed" because enforcement is a "core part of our institutional mission."