CBP Forced Labor Finding's Violation of APA 'Substantive,' Exporter Argues
Dominican aluminum extrusions exporter Kingtom Aluminio, which faces a CBP forced labor finding, defended Oct. 31 the Court of International Trade’s decision to vacate the finding pending the conclusion of litigation. It declared that “[i]ts very survival is in jeopardy” due to the finding (Kingtom Aluminio v. United States, CIT # 24-00264).
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Kingtom argued again that the public record in its case “is devoid of evidence showing that the labor Kingtom received from its workers was in any way involuntary or forced.” This wasn’t a mere procedural error, but a “substantive” violation of the Administrative Procedure Act that can’t be fixed by “promises about how [the government] intends to cure” it in an upcoming new finding on remand, it said.
The difference between the litigation’s public and confidential records was one of the main issues that led CIT Judge Timothy Reif to vacate and remand CBP’s forced labor finding in September (see 2509230043). Reif said that the public finding, relying on a barren and “heavily redacted” public record, wasn’t supported by substantial evidence.
The U.S. requested reconsideration of the vacatur, saying that it had provided adequate proof in the confidential finding of the use of forced labor and that Kingtom had shown it was “eager” to import its goods in the meantime (see 2510280054). It also claimed the trade court hadn’t properly discussed the U.S. Court of Appeals for the Federal Circuit’s standard for vacatur and had made a factual error warranting reconsideration.
Kingtom first disagreed with the latter point. The U.S. had challenged CIT’s statement that the forced labor allegation assessment had “predate[d] the forced labor investigation itself” and not specifically discussed forced labor, arguing the trade court had conflated the forced labor allegation assessment with a previous Enforce and Protect Act investigation.
But, “to the extent that this can be characterized as a mistake,” it was just the court mixing up its words, Kingtom claimed. CIT meant to say that the EAPA verification report, not the forced labor allegation assessment, had come out before the labor investigation and hadn’t referenced forced labor. That was clear by the fact that CIT had ended each relevant sentence with a citation to the EAPA report, not the assessment, it said.
“Had the Court intended to refer to the allegation assessment, it would have referenced Confidential Record Document Number 8 (CBP 000038-58),” it said.
And that was the entire issue, it said -- the allegation assessment wasn’t on the public record, meaning it couldn’t have been used in the public version of CBP’s forced labor finding.
It also disagreed that CIT had overlooked CAFC’s standard for vacatur. Vacatur is the APA’s default remedy, it said, so the trade court hadn’t needed to look to the cited case, Nat’l Org. of Veterans’ Advocs. Inc. v. Sec’y of Veterans Affs.
Kingtom also said that the government’s “invocation of ‘justice’ as part of its plea for reconsideration cannot go without response.”
It accused CBP of rushing to judgment, skipping its usual pre-finding instruction to ports to withhold release of the subject merchandise, and failing to notify Kingtom about the investigation.
Kingtom had to shut down its manufacturing due to the embargo resulting from the forced labor finding, it said. And the agency had refused to provide CBP access to the evidence it used in the investigation, it said, so that “[t]his Court is the only forum where Kingtom has any chance to defend itself and remove the stigma that has been attached to its name.”