Cases
Milice v. Consumer Product Safety Commission
CASE: Lisa Milice v. U.S. Consumer Product Safety Commission
STATUS: Closed
NCLA ROLE: Counsel
COURTS HEARD IN: 3rd Cir., D.C. Cir.
ORIGINAL COURT: U.S. Court of Appeals for the Third Circuit
DECIDING COURT: U.S. Court of Appeals for the District of Columbia Circuit
OPENED: February 20, 2020
AGENCIES: Consumer Product Safety Commission
FOCUS AREAS:
CASE SUMMARY
Did we achieve our litigation objective? No. Lisa Milice still must pay to access CPSC’s Safety Standard for Infant Bath Seats.
Court Outcome: Although NCLA argued that the government cannot charge citizens for access to the law, a three-judge panel denied Milice’s ability to challenge the rule because she had not first filed an adverse comment with the agency
Larger Impact: The Constitution requires that Americans have cost-free access to the law. Nonetheless, CPSC is continuing to charge for access to the safety standards, forcing Americans to pay to see a law they must obey.
Summary: NCLA filed an opening brief in the U.S. Court of Appeals for the Third Circuit on behalf of client Lisa Milice against the U.S. Consumer Product Safety Commission (CPSC). NCLA helped Milice, a new mother, challenge CPSC’s practice of keeping consumer product safety standards hidden behind a private paywall. Legal scholar Peter L. Strauss, the Betts Professor Emeritus of Law at Columbia Law School, joined NCLA on the brief.
The brief asked the Court to review and vacate a recent CPSC Direct Final Rule (Rule) incorporating by reference (and thus making mandatory) a voluntary safety standard for infant bath seats.
Milice, a potential infant bath seat purchaser, asked CPSC to let her see a copy of its Safety Standard for Infant Bath Seats. The Commission responded that it did not allow people to see the Rule and directed her to buy a copy from ASTM International, a private organization that specializes in creating safety standards. ASTM was charging $56.00 for a copy of the law—about twice the cost of an infant bath seat. According to CPSC, any person interested in viewing one of the Commission’s safety standards that had been incorporated by reference had to pay the purchase price ASTM sets—a deeply arbitrary and capricious policy allowing a private organization to hold a monopoly over access to a binding legal standard.
NCLA argued that CPSC (or any other government agency, for that matter) cannot charge for access to the law because citizens are the government and the authors of the law—and the law in its entirety belongs to the citizenry. CPSC’s failure to make a copy of the Rule freely accessible to the public violated the requirement in the Commission’s organic statute that CPSC must publish the text of its rules. The Commission’s scheme also violated the Freedom of Information Act and the Administrative Procedure Act’s guarantees that materials incorporated by reference into agency rules be reasonably available to the public.
RELEVANT MATERIALS
NCLA FILINGS
Petition for Panel Rehearing & Rehearing En Banc
August 16, 2021 | Read More
Opinion of the U.S. Court of Appeals for the District of Columbia Circuit
July 2, 2021 | Read More
Order Transferring Case to the U.S. Court of Appeals for the District of Columbia
February 18, 2021 | Read More
Petitioner’s Brief in Response to This Court’s October 2 Order
October 13, 2020 | Read More
Order to Remove the Case From the Court’s Calendar for October 22, 2020 and Rescheduled Before Another Panel
October 2, 2020 | Read More
PRESS RELEASES
NCLA Asks D.C. Circ. to Rehear Rules Behind Paywalls Case on Timing of Direct Final Rule Challenges
August 16, 2021 | Read More
Watch: NCLA Case Video Reveals How CPSC Hides Safety Standards from Public Behind Paywall
February 24, 2021 | Read More
NCLA Brief Responds to CPSC and ASTM Excuses for Keeping Consumers in the Dark on Safety
August 7, 2020 | Read More
NCLA Asks Third Circuit to Put an End to CPSC’s Unconstitutional Pay-Per-View Law Scheme
May 18, 2020 | Read More
IN THE MEDIA
CPSC manufacturing rules must be free to the public, D.C. Circuit told
Reuters
May 12, 2023
Baby Bath Seats Inspire Court Fight on Safety-Standard Access
Courthouse News Service
February 7, 2023
CPSC manufacturing rules must be free to the public, D.C. Circuit told
Bloomberg
February 7, 2023
Access, Copyright Fight Over Safety Standard Jumps to D.C. Cir.
Bloomberg
February 7, 2023
CASE HIGHLIGHTS
Press Release
August 16, 2021
NCLA Asks D.C. Circ. to Rehear Rules Behind Paywalls Case on Timing of Direct Final Rule Challenges
Media Mention
May 12, 2023
CPSC manufacturing rules must be free to the public, D.C. Circuit told
Source: Reuters
Media Mention
February 7, 2023
Access, Copyright Fight Over Safety Standard Jumps to D.C. Cir.
Source: Bloomberg