UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 24-91

Before the Court in International Rights Advocates v. Alejandro Mayorkas, Secretary U.S. Dept. of Homeland Security and Troy A. Miller, Acting Commissioner of U.S. Customs and Border Protection, Court No. 23-00165, Slip Op. 24-91 (August 8, 2024) was a motion filed by the government to dismiss Plaintiff’s complaint for lack of subject matter jurisdiction. The case complaint concerned a petition by IRA Advocates, the Corporate Accountability Lab (“CAL”) and the Civil Rights Litigation Clinic of University of California Irvine School of Law (“CRLC-UCI”), submitted CBP seeking exclusion of cocoa produced in the Ivory Coast by means of forced or trafficked child labor  pursuant to 19 U.S.C. § 1307 and 19 C.F.R. § 12.42(b). Judge Claire Kelly granted the government’s motion and dismissed the case noting plaintiff’s lack of standing to bring this action.

The issue concerned Plaintiff’s allegations that certain cocoa imports from the Ivory Coast by certain chocolate companies were produced by forced child labor and should be prevented from entering the United States. The petition detailed statistical and first-hand evidence of forced and trafficked child labor collected by the IRAdvocates and requested CBP investigate and issue a withhold release order (“WRO”) on cacao imports produced and exported by producers in the Ivory Coast. The issue turned on CBP’s delay in response and ultimate denial of the petition based on insufficient information.

In one meeting between the parties, CBP informed Plaintiff that the agency was carrying out an investigation and sent requests for information to all major cocoa suppliers. In February 2022, two years after their initial petition, IRAdvocates, CAL, and CRLC-UCI, along with several organizations, companies, and individuals, sent a letter to CBP urging the agency to take enforcement action under Section 1307 against cocoa imports from the Ivory Coast, referencing their original petition. However, CBP failed to answer the letter and neglected to follow up on the plaintiff and its affiliates’ request for updates on multiple occasions. The Court noted that it was not until December 2022 that CBP informed plaintiff for the first time about deficiencies in evidence, claiming that the petition was dated and did not provide a sufficient basis nor information of adequate quality to enable CBP to move forward with the enforcement action under 19 U.S.C. § 1307. Throughout the investigation, however, CBP had not provided a timeline for resolving the Petition, addressed the allegations, or indicated whether a decision would be forthcoming and it did not mention anything about the quality of information.

After three and a half years of unsuccessful attempts to get CBP to act and with no indication of forthcoming action, IRAdvocates filed a lawsuit on August 15, 2023. They invoked the Court of International Trade’s jurisdiction under 28 U.S.C. § 1581(i) and alleged that CBP’s failure to enforce Section 1307 violates 5 U.S.C. § 706(1). IRAdvocates sought a court order to compel CBP to either issue a Withhold Release Order (WRO) on cocoa products from the Ivory Coast, determine that the petition lacks merit, or make some other appropriate decision regarding the petition. Whereas Plaintiff asserted organizational standing, defendants argued this action should be dismissed for lack of subject-matter jurisdiction because IRAdvocates lacked standing to bring its claim. Defendants contended that IRAdvocates failed to satisfy Article III standing since it could not demonstrate a concrete, particularized injury in fact, there was no causal connection between the injury alleged and CBP’s conduct, and the alleged injury was not likely to be redressed by a decision in IRAdvocates’ favor.

Article III of the U.S. Constitution requires plaintiffs to demonstrate standing. U.S. Const. art. III, § 2; see Lujan, 504 U.S. at 560–61. In satisfying “[t]he irreducible constitutional minimum of standing,” a plaintiff must demonstrate the three elements of injury in fact, causation, and redressability. Military-Veterans Advoc. v. Sec’y of Veterans Affs., 7 F.4th 1110, 1121 (Fed. Cir. 2021); Canadian Lumber Trade All. v. United States, 517 F.3d 1319, 1331 (Fed. Cir. 2008) (citing Lujan, 504 U.S. at 560). First, the plaintiff must show that it suffered an injury in fact: a concrete and particularized “invasion of a legally protected interest” that is actual or imminent rather than conjectural or hypothetical. Lujan, 504 U.S. at 560; Military-Veterans Advoc., 7 F.4th at 1121 (“[the injury in fact requirement] ensures that the plaintiff has a ‘personal stake in the outcome of the controversy’’’ (quoting Warth, 422 U.S. at 498)). Second, the plaintiff must demonstrate that the injury and conduct complained of are causally connected; that is, the injury is “fairly traceable to the defendant’s actions or omissions,” rather than those of a third party. Lujan, 504 U.S. at 560. Lastly, the plaintiff must show it is likely, rather than “merely speculative,” that the injury will be redressed by a decision in the plaintiff’s favor. Id. An organization establishes standing by demonstrating the same three components of constitutional standing required by an individual. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (“Havens”); Alliance, 602 U.S. at 393–94. To satisfy the injury in fact requirement, the organization must establish “a concrete and demonstrable injury to the organization’s activities.” Havens, 455 U.S. at 379.

The bulk of the analysis focused on the government’s argument that IRAdvocates lacked organizational standing. The CIT explained that in Havens, an organization sufficiently pleads an injury in fact when it identifies a concrete harm to the organization. See 455 U.S. at 378–79. In that case, the Supreme Court found that HOME, an organization providing counseling and referral services to low- and moderate-income homeseekers, had Article III standing to sue Havens Realty for racial steering practices that violated Section 804 of the Fair Housing Act (FHA). The Court determined that Havens Realty’s actions of steering individuals to racially similar housing directly harmed HOME by impairing its ability to offer equal access to housing and necessitating the allocation of significant resources to counteract the discriminatory practices. The Court emphasized that HOME’s core business included counseling services, which were negatively affected by Havens Realty’s deceptive practices. The Supreme Court ruled that HOME had the right to sue because Havens Realty’s racial steering practices clearly hurt HOME’s ability to provide counseling and referral services to low- and moderate-income home seekers, causing real harm. The Court went on to mention the recent case, Alliance, where the Supreme Court used the same reasoning as in Havens when the plaintiff organizations challenged the FDA’s approval of the drug mifepristone, used for terminating early pregnancies. They claimed the approval forced them to spend a lot of time, effort, and resources on advocacy, studies, and legal actions, which they argued was a real injury. However, the Court disagreed and did not see their injury as comparable to the one in Havens. Instead, the Court held that the FDA’s approval of mifepristone did not interfere with the organizations’ main work or create a similar obstacle to their mission.

Based on this precedent, the CIT held that IRAdvocates did not meet the requirements for organizational standing under Article III. The Court noted that the group works globally to fight issues like child labor and forced labor and aims to achieve its goals through public education, research, litigation, and collaboration with various groups. However, unlike the plaintiff in Havens, IRAdvocates had not shown how CBP’s inaction harmed its core activities or assets. Instead, IRAdvocates’ claim of injury is based only on CBP’s failure to issue a Withhold Release
Order (WRO) on cocoa imports from the Ivory Coast or take other action. The Court reasoned that Plaintiff’s complaint was analogous the situation in Alliance, where the organizations
wanted specific action from an agency and spent resources trying to get it, but this did not qualify as an injury in fact. See Alliance, 602 U.S. at 394 (“an organization that has not suffered
a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action”). The CIT
stated that 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.
Id. at 396–97.

The Court dismissed the action because it reasoned that IRAdvocates cannot “spend its way into standing” by expending resources to gather information and advocate against forced-
child labor in the Ivory Coast, whether at the beginning of its advocacy activities or in the course thereof. See Alliance, 602 U.S. at 394. Some of the harm claimed by IRAdvocates include that
the organization had to use extra resources for several activities, including attending meetings at CBP’s office on at various dates between 2021 and 2022; gathering evidence on trafficking and forced labor in the Ivorian cocoa industry, which involved trips to Western Africa and interviews with affected children; preparing reports, interview summaries, affidavits, and other documents for a supplemental petition filed in June 2021; organizing and filing a letter of support to CBP in February 2022, responding to CBP’s letter on in January 2023; conducting additional research and gathering new evidence for a supplemental petition filed in February 2023. Nonetheless, the CIT held that these expenditures “[fell] squarely within the category of resources used for
advocacy, litigation, or educational purposes—the types of expenses that have been consistently rejected as a basis for Article III injury in fact.” Slip Op 24-91 at 18, citing Alliance, 602 U.S. at
394 (“But an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and
advocate against the defendant’s action”). The CIT held that these expenditures did not relate to a business activity independent from the organization’s issue-advocacy functions since “the
expenditures appear to directly further IRAdvocates’ claimed goal of “public education and mobilization, research, litigation, legislation, and collaboration with labor, government and
business groups.” Id. For these reasons, the Court concluded that IRAdvocates failed to demonstrate that it suffered any real injury as required to assert organizational standing under
Article III.

As to the other prongs of the standing analysis, the Court concluded that even if IRAdvocates had suffered an injury, it was not one directly linked to CBP’s inaction, and a court ruling in their favor would fail to offer effectively address the issue. The Court found it speculative that a favorable decision would offer relief since IRAdvocates’ costs stem from its routine operations and efforts involved in advocating for workers and workplace justice globally. Even if the court forced CBP to act, the Court said, the agency might find the petition unworthy or only stop cocoa imports without ending the forced labor at the heart of IRAdvocate’s advocacy.