Lisa Milice v. CPSC

L
 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 10, 2021                      Decided July 2, 2021

                         No. 21-1071

                        LISA MILICE,
                        PETITIONER

                              v.

         CONSUMER PRODUCT SAFETY COMMISSION,
                    RESPONDENT


              On Petition for Review of an Order
        of the Consumer Products Safety Commission


     Jared McClain argued the cause for Milice. With him on
the briefs was Peter L. Strauss.

     Courtney L. Dixon, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Ethan P. Davis, Acting Assistant Attorney General at the time
the brief was filed, Scott R. Mcintosh, Attorney, and J. Gibson
Mullan, then-General Counsel, Consumer Product Safety
Commission.

     Kelly M. Klaus, Rose Leda Ehler, Rachel G. Miller-
Ziegler, and J. Blake Cunningham were on the brief for amici
curiae American National Standards Institute, et al. in support
of respondent. Gary D. Sesser entered an appearance.
                              2

     J. Kevin Fee and Michael E. Kenneally were on the brief
for amicus curiae American Society for Testing and Materials
in support of respondent.

    Nina A. Mendelson, Allison M. Zieve, and Adina H.
Rosenbaum were on the brief for amici curiae Administrative
Law Professors in support of neither party.

    Before: ROGERS, MILLETT and WILKINS, Circuit Judges.

    Opinion for the Court by Circuit Judge ROGERS.

    ROGERS, Circuit Judge: This case comes to the court as a
broadside attack on the practice of federal agencies
incorporating privately drafted technical standards into their
regulations by reference. In September 2019, the Consumer
Product Safety Commission revised its safety standard for
infant bath seats, stating: “Each infant bath seat shall comply
with all applicable provisions of ASTM F1967–19, Standard
Consumer Safety Specification for Infant Bath Seats.”
Revisions to Safety Standard for Infant Bath Seats, 84 Fed.
Reg. 49,435, 49,439 (Sept. 20, 2019) (the “2019 Rule”). When
Lisa Milice, a then-expectant mother, and her counsel
contacted Commission staff about inspecting the ASTM
standard, they were told they would have to purchase the
standard from its developer. Milice eventually challenged the
2019 Rule on the grounds that it violated the Administrative
Procedure Act and the First and Fifth Amendments to the U.S.
Constitution because its content is not freely available to the
public. The court is unable to address Milice’s arguments,
however, because her petition for review is untimely.
                               3
                               I.

    The Consumer Product Safety Improvement Act of 2008,
Pub. L. No. 110-314, 122 Stat. 3016, was enacted to, among
other things, “establish consumer product safety standards and
other safety requirements for children’s products,” H.R. Rep.
No. 110-787, at 1 (2008) (Conf. Rep.). The Act requires the
Commission to “consult[] with representatives of consumer
groups, juvenile product manufacturers, and independent child
product engineers and experts” regarding “the effectiveness of
any voluntary consumer product safety standards for durable
infant or toddler products.” 15 U.S.C. § 2056a(b)(1)(A). After
consultation, the Commission is to “promulgate consumer
product safety standards” for such products on an expedited
basis that were either “substantially the same as” the voluntary
standards or “more stringent” if “more stringent standards
would further reduce the risk of injury associated with such
products.” Id. § 2056a(b)(1)(B), (b)(2).

     The Act includes a procedure for revising the
Commission’s durable infant and toddler product standards. If
the Commission’s standard “is based, in whole or in part, on a
voluntary standard,” the Commission must alert the developer
and that organization must inform the Commission of any
revisions. Id. § 2056a(b)(4)(A)-(B). The revised voluntary
standard “shall be considered to be a consumer product safety
standard issued by the Commission” effective 180 days after
the Commission is notified, “unless . . . the Commission
notifies the organization that it has determined that the
proposed revision does not improve the safety of the consumer
product covered by the standard.” Id. § 2056a(b)(4)(B). Thus,
the revised voluntary standard replaces the Commission’s
standard by operation of law unless the Commission
affirmatively rejects it.
                               4
     In 2009, the Commission proposed a safety standard for
infant bath seats that was “substantially the same as a voluntary
standard developed by ASTM International.” Safety Standard
for Infant Bath Seats, 74 Fed. Reg. 45,719, 45,719 (Sept. 3,
2009).      Following an opportunity for comment, the
Commission published a rule that was “almost the same as the
proposed standard.” Safety Standard for Infant Bath Seats:
Final Rule, 75 Fed. Reg. 31,691, 31,691 (June 4, 2010).
ASTM’s standard was incorporated by reference: “[E]ach
infant bath seat shall comply with all applicable provisions of
ASTM F 1967–08a, Standard Consumer Safety Specification
for Infant Bath Seats, approved November 1, 2008.” Id. at
31,698. Interested persons could purchase a copy of the
standard from ASTM or inspect a copy on a read-only basis at
the Commission’s Office in Bethesda, Maryland or at the
National Archives in Washington, D.C. Id.

     ASTM revised its standard for infant bath seats in 2012
and 2013, and each time the Commission published notices in
the Federal Register incorporating the revised standards by
reference. See 77 Fed. Reg. 45,242 (July 31, 2012); 78 Fed.
Reg. 73,692 (Dec. 9, 2013). When ASTM notified the
Commission in June 2019 that it had again updated its infant
bath seat standard, the Commission published a notice in the
Federal Register on September 20, 2019, summarizing
ASTM’s changes. 84 Fed. Reg. at 49,436–37. Finding
ASTM’s changes had either a positive or neutral impact on
product safety, id. at 49,436, the Commission announced that
the revision would take effect December 22, 2019, unless
“significant” adverse comments were received within thirty
days, id. at 49,439. In that event, the Commission would
withdraw the 2019 Rule before its effective date and publish
notice in the Federal Register. Id. at 49,435. As before, the
Commission incorporated ASTM’s standard by reference:
“Each infant bath seat shall comply with all applicable
                               5
provisions of ASTM F1967–19, Standard Consumer Safety
Specification for Infant Bath Seats, approved May 1, 2019.”
Id. at 49,439. And as before, the Director of the Federal
Register had approved the incorporation by reference as
conforming to the requirements of Section 552(a)(1) of the
Administrative Procedure Act (“APA”). Id. Again, the
standard could be purchased from ASTM or viewed on a read-
only basis at the Commission’s Bethesda headquarters or the
National Archives. Id.

     On October 21, 2019, the New Civil Liberties Alliance
(“NCLA”) wrote to the Commission what it “intended to serve
as [] significant adverse commentary.” Letter of Caleb
Kruckenberg, Litigation Counsel, NCLA, to Robert S. Adler,
Act’g Chairm’n, CPSC, at 2 (Oct. 21, 2019). NCLA stated that
the 2019 Rule was unconstitutional and needed to be
withdrawn because the incorporation of ASTM’s standards by
reference “hid[] the binding law behind a paywall” in violation
of the Fifth and Fourteenth Amendments. Id. at 1, 4–7. NCLA
suggested that the Commission “could avoid these problems by
simply publishing the legal standard instead of incorporating it
by reference,” noting that, in its view, the Commission “has no
obligation to adopt . . . ASTM standards,” and “has the option
of reproducing those standards in full in the Code of Federal
Regulations.” Id. at 7.

     The Commission responded by letter of February 6, 2020,
stating that it did not consider NCLA’s letter a significant
adverse comment because NCLA’s constitutional concerns did
not implicate product safety, and that the 2019 Rule had taken
effect on December 22, 2019. Letter from J. Gibson Mullan,
Gen’l Counsel, CPSC, to Caleb Kruckenberg, Litigation
Counsel, NCLA (Feb. 6, 2020). The Commission advised that
because the decision whether to publish the text of ASTM’s
standards in the Federal Register is “limited both by [its] own
                                6
organic statute and by the Office of the Federal Register,” id.
at 1, it “does not have the option of publishing the revised
mandatory standard instead of incorporating it by reference,”
id. at 3. First, its authority to veto a change to a voluntary
standard that it had previously adopted is “limit[ed]” by
Congress to “reject[ing] the revision only if it determines that
the change does not improve safety.” Id. at 2. Second, “nearly
all voluntary standards [are] protected by copyright,” which the
Commission can neither ignore nor publish without permission
of the copyright holder. Id. at 2–3.

     On February 20, 2020, Milice, an expectant mother, filed
a petition for review of the 2019 Rule in the United States Court
of Appeals for the Third Circuit, invoking 15 U.S.C. § 2060(a).
Section 2060(g)(1)(c), however, provides an expedited
procedure for “any standard promulgated by the Commission
under section 20656a of this title (relating to durable infant and
toddler products)”:

         Not later than 60 days after the promulgation, by the
         Commission, of a rule or standard to which this
         subsection applies, any person adversely affected . . .
         may file a petition with the United States Court of
         Appeals for the District of Columbia Circuit for
         judicial review of such rule.

15 U.S.C. § 2060(g)(2). By Order of February 18, 2021, the
Third Circuit transferred the case to this court.

     The parties’ briefs focus on the lawfulness of the 2019
Rule. In response to Milice’s objections relating to the
availability of ASTM’s standard in view of its incorporation by
reference, the Commission maintains that the Rule complies
with the APA’s incorporation by reference requirements and
presents no constitutional concerns, noting that there are three
                               7
ways to access ASTM’s infant bath seat standard: (1) inspect it
in-person at the Commission’s reading room in Bethesda, or at
the Office of the Federal Register in Washington D.C.; (2)
purchase the standard for $56 from ASTM; or (3) view the
standard on ASTM’s website in read-only format (i.e., the text
on the webpage cannot be copied or printed). Resp’t’s Br. 13–
14. Milice responds that her only interest is to ensure that the
Commission provides public access to its binding standards.
The frustrated efforts experienced by Milice and NCLA to
view ASTM’s standard in the Commission’s Bethesda reading
room, see Lisa Milice Decl. ¶¶ 6–7 (May 11, 2020); Jared
McClain, Esq., Decl. ¶¶ 4–9 (May 11, 2020), illustrate one
limitation to the incorporation by reference format, and she
maintains that the Commission and ASTM “remain free to
contemplate a licensing arrangement, litigate ASTM’s
copyright claim, or negotiate compensation for ASTM’s
copyright,” Reply Br. 19.

     A month before the scheduled oral argument, amicus
ASTM notified the court that it may lack jurisdiction over the
petition for review because it was filed more than 60 days after
the 2019 Rule was published in the Federal Register. Milice
responded through NCLA counsel that her petition is properly
before the court because it was filed within 60 days of the
Commission’s rejection of NCLA’s comment or, alternatively,
the effective date of the 2019 Rule. The court directed the
parties to be prepared at oral argument to address the petition’s
timeliness. Per Curiam Order (May 3, 2021).

                               II.

     Notwithstanding the parties’ legal dispute over the
availability of ASTM’s standard to the public, the court must
first determine whether it has subject matter jurisdiction to
consider Milice’s petition for review. See Arbaugh v. Y&H
                                8
Corp., 

546 U.S. 500

, 514 (2006); Steel Co. v. Citizens for a
Better Env’t, 

523 U.S. 83

, 94–95 (1998).

     Section 2060(g)(2) of Title 15 of the U. S. Code provides
that a petition for review of a consumer product safety standard
for infant and toddler products must be filed “[n]ot later than
60 days after [its] promulgation, by the Commission.” In
Laminators Safety Glass Association v. Consumer Product
Safety Commission, 

578 F.2d 406

 (D.C. Cir. 1978), the court
held that the petitioner’s failure to comply with an identically
worded filing deadline under the Consumer Product Safety Act
“depriv[ed] this Court of jurisdiction,” 

id. at 408

. It follows
that meeting Section 2060(g)(2)’s filing deadline is a
jurisdictional prerequisite to suit. Notably, Milice has never
argued to the contrary, thereby forfeiting any claim that Section
2060(g)(2) is not a jurisdictional bar. See Int’l Longshore &
Warehouse Union v. NLRB, 

971 F.3d 356

, 363 (D.C. Cir.
2020). Here, the 60-day period began on September 20, 2019,
when the Commission published the 2019 Rule in the Federal
Register. Where “the agency does not define the term by
regulation and if the statute supports (or at least does not
foreclose) the interpretation, ‘promulgation’ is accorded its
‘ordinary meaning’ — i.e., publication in the Federal Register.”
Horsehead Resource Dev. Co., Inc. v. EPA, 

130 F.3d 1090

,
1093 (D.C. Cir. 1997). Milice, however, did not file her
petition until February 20, 2020 — 153 days after the 2019
Rule’s promulgation. Her petition is therefore time barred and
must be dismissed.

     Milice’s efforts to render her tardy petition timely are
unpersuasive. Relying on Bennett v. Spear, 

520 U.S. 154

(1997), she maintains that the 2019 Rule was not final agency
action subject to challenge until December 22, 2019, because
the Commission stated in the preamble that it would withdraw
the 2019 Rule before its effective date if it received significant
                                9
adverse comment. Oral Arg. Rec. 1:30–3:00, 9:00–9:51.
Milice’s reliance on Bennett is misplaced. “Agency actions are
final if two independent conditions are met: (1) the action
‘marks the consummation of the agency’s decisionmaking
process’ and is not ‘of a merely tentative or interlocutory
nature;’ and (2) it is an action ‘by which rights or obligations
have been determined, or from which legal consequences will
flow.’” Soundboard Ass’n v. FTC, 

888 F.3d 1261

, 1267 (D.C.
Cir. 2018) (alteration adopted) (quoting Bennett, 

520 U.S. at
177

–78). The 2019 Rule satisfies both conditions.

     Far from speaking tentatively, the Commission stated in
the preamble of the 2019 Rule that “the changes made in
ASTM F1967–19 will either improve the safety of infant bath
seats or are neutral with respect to safety,” and “[t]herefore, the
Commission will allow the revised voluntary standard to
become effective as a mandatory consumer product safety
standard under the statute.” 84 Fed. Reg. at 49,436. Indeed,
the Commission designated the revised infant bath seat
standard as a “direct final rule.” 

Id. at 49,

435. Nor is there any
question of the 2019 Rule’s legal effect: a person who
knowingly makes, distributes, or sells a product that does not
conform to the Commission’s standards faces potential civil
and criminal penalties under 15 U.S.C. §§ 2068–70. The 2019
Rule was final agency action in September 2019,
notwithstanding the possibility that the Commission might
reconsider and change its standard in the future. See Nat’l
Envtl. Dev. Assoc.’s Clean Air Project v. EPA, 

752 F.3d 999

,
1006–07 (D.C. Cir. 2014).

     Alternatively, Milice maintains that the 2019 Rule was not
final agency action under the incurable-prematurity doctrine
until the Commission rejected NCLA’s comment on February
6, 2020. Because “finality with respect to agency action is a
party-based concept,” Bellsouth Corp. v. FCC, 

17 F.3d 1487

,
                                10
1489 (D.C. Cir. 1994) (quoting United Transp. Union v. ICC,

871 F.2d 1114

, 1118 (D.C. Cir. 1989)), the “reviewability of
an agency action turns in part on the conduct of the petitioning
parties,” ICG Concerned Workers Ass’n v. United States, 

888
F.2d 1455

, 1457 (D.C. Cir. 1989). If a party asks an agency to
reconsider its decision, the request “renders [the] agency’s
otherwise final action non-final with respect to the requesting
party.” Clifton Power Corp. v. FERC, 

294 F.3d 108

, 110–11
(D.C. Cir. 2002). As a result, a petition filed by that party while
its request remains pending is “incurably premature.” 

Id.

 By
contrast, “[i]f a party has sought only judicial review, the
agency action can be deemed final and hence reviewable as to
that party, regardless of whether other parties have moved for
administrative reconsideration.” ICG Concerned Workers
Ass’n, 

888 F.2d at 1457

–58; see, e.g., Petrol. Commc’ns, Inc.
v. FCC, 

22 F.3d 1164

, 1171 n.6 (D.C. Cir. 1994). Even
assuming the incurable prematurity doctrine applies in this
context as Milice supposes, it is of no help to her because she
never asked the Commission to reconsider the 2019 Rule, nor
did NCLA purport to write its October 21, 2019, comment
letter on her behalf. Oral Arg. Rec. 4:25–5:08.

    Accordingly, because Milice’s petition for review of the
2019 Rule is untimely, the court lacks jurisdiction and must
dismiss her petition.

Add comment

By

Recent Posts

Recent Comments