Anti-Forced Labor Group Has No Standing to Sue Inaction on WRO Petition, US Tells CAFC
Anti-forced labor advocacy group International Rights Advocates (IRAdvocates) doesn't have standing to challenge CBP's failure to respond to a withhold release order petition to ban cocoa from Cote d'Ivoire, the U.S. argued in a Feb. 20 reply brief at the U.S. Court of Appeals for the Federal Circuit. The government claimed that IRAdvocates has not established that it suffered an "injury in fact." It also said any alleged injury isn't "traceable" to the "non-issuance of a WRO," and that the alleged injury isn't "redressable" by CBP (International Rights Advocates v. Kristi Noem, Fed. Cir. # 24-2316).
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The Court of International Trade dismissed IRAdvocates' suit last year for lack of standing, rooting its decision in the Supreme Court's recent holding in FDA v. Alliance for Hippocratic Medicine (see 2408080049). In Alliance, the high court denied pro-life advocacy groups standing to challenge the FDA's approval of mifepristone.
The advocacy group appealed, basing its claim for standing on the concept of "organizational standing," which the Supreme Court established in Havens Realty Corp. v. Coleman (see 2411120041). In Havens, the Supreme Court said that an "organization sufficiently pleads an injury in fact when it identifies a concrete harm to the organization." The decision also said organizational standing requires a “'concrete and demonstrable injury to the organization’s activities -- with the consequent drain on the organization’s resources.'"
Like CIT, the U.S. response at the Federal Circuit also rested heavily on Alliance. The government argued that IRAdvocates hasn't established an "injury in fact for constitutional standing."
While an advocacy group may have a "compelling interest in an issue or problem," this interest isn't enough to establish injury, the brief said. The trade court "properly recognized the principle" established in Havens and Alliance, which says that "an organization must prove an actual injury by showing harm to a 'business activity independent from ... issue-advocacy functions,'" the brief said. Like the medical organizations that failed to establish standing in Alliance, IRAdvocates has failed to show any harm to a "core business activity," the brief said.
IRAdvocates argued that it did suffer such an injury, since it had to divert resources to investigate forced labor in Cote d'Ivoire to compel CBP to act on the WRO petition. To this, the U.S. again pointed to Alliance, which said a group can't spend its way into standing. The Alliance court said that it's "incorrect" to read Havens to mean that "standing exists when an organization diverts its resources in response to a defendant’s actions" that "merely frustrate the pursuit of its advocacy mission, the government said.
The advocacy group relied on three pre-Alliance cases to back its claim, all of which were before the U.S. Court of Appeals for the D.C. Circuit. The government said in response that in all three, the D.C. Circuit used an "injury analysis that relied on injury to an organization’s mission and responsive spending or expenditures to defendants’ action or inaction." Alliance specifically overruled this analysis, the brief said.
The government added that the alleged injury isn't traceable to the non-issuance of a WRO, arguing that courts have "repeatedly rejected the idea that costs voluntarily incurred by an advocacy organization in response to a challenged action constitute injuries caused by that action." The costs IRAdvocates incurred in investigating forced labor in Cote d'Ivoire "fall directly in line with its mission of advocating against forced labor practices worldwide" and thus pre-date CBP's inaction, the brief said.
Lastly, the U.S. said CBP responding to the WRO petition wouldn't redress IRAdvocates' alleged injury "in the form of money spent convincing CBP to issue a WRO." The government said there's no guarantee CBP would even issue the WRO, adding that even if it did, there's no indication this would stop forced labor in Cote d'Ivoire.
The advocacy group said even a decision to refuse to impose a WRO would be a "victory," since it would show that CBP "must act" on a WRO petition. In response, the U.S. said "it strains credulity to argue that such a decision from CBP would qualify as an ‘injury redressed’ for IRAdvocates’s apparent substantial expenditure of resources advocating for the imposition of a WRO.”