Consumers’ Research v. Consumer Product Safety Commission

Decision Date18 March 2022
Docket NumberCase No. 6:21-cv-256-JDK
Citation592 F.Supp.3d 568
CourtU.S. District Court — Eastern District of Texas

Anthony J. Dick, Hampton Hunter Bruton, John M. Gore, Jorge Benjamin Aguinaga, Joseph Patrick Falvey, Megan Lacy Owen, Brett Allen Shumate, Jones Day, Washington, DC, for Plaintiffs.

Chetan A. Patil, Pro Hac Vice, US Department of Justice, Federal Programs Branch, Civil Division, Washington, DC, Christopher D. Dodge, Pro Hac Vice, Rebecca Cutri-Kohart, Pro Hac Vice, U.S. Department of Justice - Civil Division, Washington, DC, for Defendant.



The Constitution vests all power—and responsibility—to execute the law in a single President. Because this monumental responsibility is too great for any one person, the President must delegate power to subordinate officers. For a century, the Supreme Court has recognized that this ability to delegate executive power implies a right to remove subordinates for any reason to ensure that "the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community." Free Enter. Fund v. Pub. Co. Acct. Oversight Bd. , 561 U.S. 477, 498, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (quoting 1 Annals of Cong. 499 (1789) (J. Madison)).

Here, Plaintiffs challenge a restriction on the President's power to remove members of the Consumer Product Safety Commission. Plaintiffs argue that the restriction is unconstitutional because the Commission exercises substantial executive power without proper presidential oversight. For the reasons discussed below, the Court agrees. Accordingly, PlaintiffsMotion for Partial Summary Judgment as to Count I (Docket No. 14) is GRANTED . The Government's Motion to Dismiss (Docket No. 24) is DENIED in part. Additionally, finding no just reason for delay, the Court GRANTS Plaintiffsrequest for entry of a partial final judgment under Federal Rule of Civil Procedure 54(b).


Plaintiffs are two educational organizations focused on product safety issues. Consumers’ Research is a 501(c)(3) nonprofit organization that researches and publishes reports on policies, products, and services relevant to consumers. Docket No. 1 ¶ 10. Plaintiff By Two LP ("By Two") is a limited partnership that also researches consumer products. Docket No. 1 ¶ 11. The limited partnership is comprised of parents of young children who research children's products regulated by the Commission. Id.


Defendant, the Consumer Product Safety Commission ("the Commission" or "CPSC"), is a federal agency charged with "protect[ing] the public against unreasonable risks of injury associated with consumer products." 15 U.S.C. §§ 2051(b)(1), 2053(a). The Commission consists of five commissioners, each appointed by the President with the advice and consent of the Senate. Id. § 2053(a). Each commissioner serves a seven-year term. Id. § 2053(B)(1). No more than three commissioners may be members of the same political party, and only an individual with a "background and expertise in areas related to consumer products and protection of the public from risks to safety" is qualified to serve as a commissioner. Id. § 2053(a), (c). Before the expiration of a seven-year term, the President may remove a commissioner "for neglect of duty or malfeasance in office but for no other cause." Id. § 2053(a).

Congress gave the Commission broad executive powers to regulate consumer products. The Commission may promulgate binding regulations, initiate civil enforcement actions in district court, and conduct administrative adjudications. Id. § 2056(a) (authorizing the Commission to "promulgate consumer product safety standards"); id. § 2076(b)(7)(A) (authorizing the Commission to bring civil actions to enforce "laws subject to its jurisdiction"); id. § 2076(a) ("The Commission may ... conduct any hearing or other inquiry necessary or appropriate to its functions.").


Both Plaintiffs frequently request information relevant to their research and work from the Commission under the Freedom of Information Act ("FOIA"). Docket No. 1 ¶ 10–11.

"[T]he basic purpose of the Freedom of Information Act [is] ‘to open agency action to the light of public scrutiny.’ " Dep't of Air Force v. Rose , 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). The Act mandates that every federal agency "shall make [requested] records promptly available to any person" who makes a proper request. See 5 U.S.C. § 552(a)(3)(A).1 Every agency must promulgate regulations "specifying the schedule of fees applicable to the processing of requests under" FOIA and "establishing procedures and guidelines for determining when such fees should be waived or reduced." Id. § 552(a)(4)(A)(i). FOIA mandates that agencies provide fee waivers "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government." Id. § 552(a)(4)(A)(iii).

FOIA requests filed with the Commission are initially reviewed by FOIA officers, and denials are reviewed on administrative appeal by the Commission's General Counsel. 16 C.F.R. §§ 1015.4, .7. After exhausting administrative remedies, requesters may challenge an agency's denial of records in district court. 5 U.S.C. § 552(a)(4)(B) ; see also id. § 552(a)(6)(A), (a)(6)(C)(i).

Pursuant to FOIA, the Commission adopted a rule ("the Final Rule") updating the fee schedule for CPSC FOIA requests in January 2021. See Fees for Production of Records, 86 Fed. Reg. 7499-01, 7499 (Jan. 29, 2021) (to be codified at 16 C.F.R. pt. 1015). The Final Rule increased the fees the Commission charges to duplicate, search for, and review requested documents. See id. at 7500–01. The Final Rule took effect on March 1, 2021. Id. at 7499.


This case challenges the Commission's structure when it promulgated the Final Rule and as it processes PlaintiffsFOIA requests. Plaintiffs’ claims are based on a series of FOIA requests they each filed with the Commission after the adoption of the Final Rule, as well as additional requests Plaintiffs expect to file in the future.

Requests 277 and 278. On March 1, 2021, Plaintiff By Two filed FOIA Request 277 seeking records related to Bassettbaby Drop-Side Cribs and Request 278 seeking records related to Angel Line Longwood Forest Drop-Side Cribs. Docket No. 14-1, Exs. E, H. By Two included public interest fee waiver requests with both FOIA requests. Id. The Commission's FOIA officer denied the requests for fee waivers. Id. , Exs. F, J. In interim response letters dated September 22, 2021—after Plaintiffs filed both their complaint and partial motion for summary judgment and two days before the Government filed its motion to dismiss—the Chief FOIA officer informed By Two that, although the Commission had "not granted a public interest fee waiver," the Commission would not assess FOIA-request fees since the Commission had failed to respond within the twenty-day deadline. Docket No. 24-1, Exs. 13, 14.

Request 324. On March 22, 2021, By Two filed a FOIA request for several documents regarding American Society for Testing and Materials ("ASTM") voluntary safety standards and requested a public interest fee waiver. Docket No. 14-1, Ex. K. In response, the Commission did not provide any documents, but directed By Two to ASTM's website as a possible source of the requested documents. Id. , Ex. L. On administrative appeal, the Commission's General Counsel determined that the request was partially moot because the ASTM records could be obtained through third-party sources, but also partially remanded the request to determine whether the Commission possessed any records not otherwise publicly available and if "responsive records may be released." Id. , Ex. N at 3. In a December 2, 2021 letter, after the parties had completed briefing on the pending motions, the Commission provided By Two physical copies of responsive ASTM records. Docket No. 35-2, Ex. 2.

Request 330. On March 23, 2021, Plaintiff Consumers’ Research filed a FOIA request for several ASTM documents and requested a public interest fee waiver. Docket No. 14-1, Ex. A. As with By Two's Request 324, the Commission provided no documents, but directed Consumers’ Research to ASTM's website. Id. , Ex. B. On administrative appeal, the Commission's General Counsel remanded the request to the FOIA officers with instructions to search for the documents and "determine whether these records may be released." Id. , Ex. D at 7–8. The Commission sent Consumers’ Research a letter on December 2 stating that it could not locate any responsive records. Docket No. 35-1, Ex. 1.

Recent Requests. Both Plaintiffs plead that they are frequent FOIA requesters and will "submit additional FOIA requests and requests for fee waivers to the Commission in the future." Docket No. 1 ¶¶ 10–11. Between the filing of this lawsuit and Plaintiffsmotion for summary judgment, each Plaintiff has filed three additional FOIA requests. See Docket No. 14-1, Exs. R–T, O–Q. In response to the Government's motion to dismiss, Plaintiffs supplemented the record with seventeen pending requests filed between March 1, 2021, and October 18, 2021. See Docket No. 29-1, Exs. OO–EEE.


Having exhausted their administrative appeals, Plaintiffs filed this suit on July 2, 2021. Docket No. 1. Plaintiffs allege informational injury and imminent financial injury due to the increased fee schedule to obtain documents responsive to pending requests "and to obtain the documents they will request in the future." Id. ¶ 52; see also id. ¶ 51. Plaintiffs also seek to have their FOIA requests processed by a Commission properly structured under Article II of the U.S. Constitution. See id. ¶ 54.

Specifically, Plaintiffs plead three claims for relief. Under...

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