An Irrevocably Tainted Opinion: Zen's Threat to Public Discourse

By Popper, Andrew F. | Boston College Law Review, January 1, 2020 | Go to article overview

An Irrevocably Tainted Opinion: Zen's Threat to Public Discourse


Popper, Andrew F., Boston College Law Review


ESSAY

That agency decisionmakers must be objective, fair, and impartial is hardly debatable. It is equally obvious that courts must support challenges to agency decisionmakers' objectivity with actual evidence, not assumptions of prejudgment or bias, before taking the extreme step of excluding a decisionmaker from those responsibilities delegated to them by Congress.1 This essay criticizes Zen Magnets v. Consumer Product Safety Commission2 (Zen), a Colorado Federal District Court opinion that failed to follow the well-worn path that requires a presumption of honesty, integrity, and good faith for administrative actors.3

Zen is a judicial review of a Consumer Product Safety Commission (CPSC) determination4 that certain small rare-earth magnets that Zen produced constituted a "substantial product hazard"5 capable of causing internal bleeding and death.6 After acknowledging that CPSC's fact-finding and substantive conclusions were supported by substantial evidence, the court shifted gears. Instead of concentrating on the alleged risk and necessity of a recall which the agency deemed necessary to protect consumers, the court fixated on a comment made by CPSC Commissioner Robert Adler in a rulemaking,7 an entirely separate proceeding.8 That comment, the court found, required a remand to CPSC, nullified the recall, and excluded Commissioner Adler from further participation in this case.9 Commissioner Adler's words, the court held, reflected an "irrevocably closed mind"10 compromising Zen's due process right to an impartial decisionmaker. This action presumptively put the public at risk and denied Commissioner Adler, a fair-minded and distinguished agency official, the right and responsibility to participate in this important case.

As a preliminary matter, the "irrevocably closed mind" standard is rarely used to judge an agency official in an enforcement action or adjudication similar to the Zen case. It is more commonly used to assess bias in rulemaking.11 Further, in those instances where that standard is used, the phrase is not "irrevocably closed mind" but rather "unalterably closed mind."12 More importantly, the core of the holding in Zen is predicated on an assumption of mistrust, the exact opposite assumption mandated by the Supreme Court.13 Were this approach to become the norm, it would chill the essential discourse between agency officials and the public, unnecessarily formalize agency process, and increase the likelihood of uninformed enforcement or regulation.

Zen was the product of two separate regulatory actions, a fact practically ignored by the District Court and, in most instances, dispositive of the question of prejudgment.14 The first was the 2012 enforcement action15 alleging that Zen's rare earth magnets were a "substantial product hazard"16 and should be recalled.17 The second was a CPSC rulemaking, also initiated in 2012, finalized in October 2014, going into effect in April 2015, and remanded back to the agency in 2016.18 That rule, if finalized, would be applicable to Zen's magnets as well as those of any other company producing a similar product. It was during the course of an open meeting discussing that proposed rule,19 not the enforcement action that is the subject of the Zen case discussed herein, that Commissioner Adler made the following statement:

The conclusion that I reach is that if these magnet sets remain on the market irrespective of how strong the warnings on the boxes in which they're sold or how narrowly they are marketed to adults, children will continue to be at risk of debilitating harm or death from this product.20

The following elaboration of this statement by Commissioner Adler, also a matter of public record, was ignored and unquestioned by the court:21

I fully understand the difference between making a determination that a product presents an unreasonable risk of injury and should not be sold in the future versus a determination that a product currently being distributed presents a substantial product hazard and should be recalled from the market. …

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