IRAdvocates Says US 'Mischaracterizes' Its Suit Seeking to Compel CBP to Respond to WRO Petition
The U.S. government's attempt to dismiss anti-forced labor group International Rights Advocates' (IRAdvocates) suit seeking to compel CBP to respond to a withhold release order petition on cocoa from Cote d'Ivoire is "premised on a significant mischaracterization of IRAdvocates' case," the group argued. Filing a reply brief at the U.S. Court of Appeals for the Federal Circuit on March 13, IRAdvocates said its case is meant to compel a CBP response to the petition and not to secure an affirmative determination on the WRO, as the U.S. suggests (International Rights Advocates v. Kristi Noem, Fed. Cir. # 24-2316).
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The advocacy group said this "mischaracterization is significant because it is likely that no organization has standing to sue to require CBP or any other government agency to reach a specific decision." The brief also repeatedly stressed that the U.S. failed to assume the merits of the claims. Should the merits be "properly assumed," then Section 307 of the Trade Act of 1930, under which the U.S. must ban goods made with forced labor, "is a mandatory statute that CBP is required to enforce," the brief said.
IRAdvocates sought to distinguish its case from the Supreme Court's recent decision in FDA v. Alliance for Hippocratic Medicine (see 2408080049), which denied pro-life advocacy groups standing to challenge the FDA's approval of mifepristone due to its abstract policy interests. IRAdvocates likened its case to Havens Realty Corp. v. Coleman, in which the high court said an "organization sufficiently pleads an injury in fact when it identifies a concrete harm to the organization."
Central to drawing a distinction between Alliance and Havens is the nature of the harm suffered by the advocacy group. IRAdvocates said its case is much more akin to Havens, since CBP's failure to respond to the petition "impaired IRAdvocates’ institutional objective of using available legal mechanisms to fight child slavery, including through the mandatory statutory scheme that requires CBP to act on petitions that meet the requirements of Section 307 and its implementing regulations.” The group's stated goals are, among other things, to aid in litigation to end forced labor, it said.
In Havens, equal opportunity housing group HOME sued a realty company for racial steering in violation of federal law. The high court said HOME had standing to sue, since "illegal racial steering practices impaired HOME’s core mission" of providing counseling services to home buyers.
IRAdvocates said CBP's failure to act here "was much more harmful to IRAdvocates than a single violator of the" Federal Housing Act, Havens Realty, was to HOME's mission. "The equivalent to this case would have been if the Office of Fair Housing and Equal Opportunity (“FHEO”) refused to enforce the FHA," the brief said.
The advocacy group said it suffered a "concrete injury" when it was required to "drain its resources" to challenge the agency's failure to respond to the WRO petition. While the U.S. tries to "equate the general abstract advocacy by the physician groups and other associations in Alliance with the concrete efforts by IRAdvocates to obtain enforcement of Section 307," the efforts of the pro-life group and IRAdvocates are markedly different, the brief said.
The "voluntary campaign" of the Alliance to "persuade the FDA to alter its position," which the high court used to say a group cannot "spend its way into standing," is different than IRAdvocates' claim, the brief said. The difference being that Section 307 has a mandatory provision requiring CBP to respond. And while CBP says it has complete discretion to respond to the petition, the advocacy group said that when assessing standing, its claim that the law mandates that CBP respond must be taken as true.
There's "no question IRAdvocates would not have had to expend" additional resources "if CBP had not unreasonably withheld and delayed action based on IRAdvocates’ original Petition," the brief said. In addition, the advocacy group said its case is even more akin to Havens, since, in both cases, the defendant party "made false or misleading claims about its commitment" to enforcing the law. Here, CBP lied "about its commitment to enforcing Section 307 in response to meritorious petitions," the brief said.
If the agency were honest about its lack of willingness to respond to the petition, "then IRAdvocates would not have spent enormous time and resources gathering new evidence and taking other actions to encourage CBP to perform its statutory duty," the brief said.