US Supreme Court Denies Emergency Challenge Against Federal Safety Agency

Justices of the U.S. Supreme Court pose for their official photo at the Supreme Court in Washington on Oct. 7, 2022. (Front L–R) Justices Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts, Justices Samuel Alito and Justice Elena Kagan. (Back L–R) Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. (Olivier Douliery/AFP via Getty Images)

The U.S. Supreme Court denied an emergency request from a maker of body pillows and infant loungers that was seeking to rein in a federal agency that had brought an enforcement proceeding against the company.

Justice Neil Gorsuch on Aug. 14 denied Leachco Inc.’s request to halt the U.S. Consumer Product Safety Commission’s (CPSC) enforcement after the company’s infant lounger was linked to several deaths. Earlier this month, the company had submitted (pdf) a petition for an “emergency” injunction pending the outcome of a ruling that is slated to be handed down by a lower court.

Leachco, based in Oklahoma, “not only faces irreparable harm, but it also is likely to succeed on the merits, and the equities resoundingly favor Leachco,” its lawyers wrote. “On the merits, Leachco’s claims—that the CPSC Commissioners, who cannot be removed by the President except for cause.”

The firm had sued the CPSC, an agency that conducts recalls and evaluates consumer products, to stop the enforcement and argued that the agency is structured in an unconstitutional manner. Its commissioners are administrative law judges who can only be removed for cause, the company said.

In arguing that the agency’s structure is illegal, it cited the U.S. Code in saying that the president can remove CPSC commissioners for “neglect of duty or malfeasance in office but for no other cause,“ arguing that such a restriction ”violates Article II of the U.S. Constitution.”

“Leachco may well forever lose its ability to vindicate its constitutional rights and to obtain meaningful relief,” according to the emergency filing.  “And, the whole time, it will suffer through the very process it claims is unconstitutional and continue to endure financial and reputation injuries. Nor does it make any sense to compel Leachco (and the government) to proceed through the administrative action, since ‘agency adjudications are generally ill-suited to address structural constitutional challenges, which usually fall outside the adjudicators’ areas of technical expertise.’”

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It added, “Thus, Leachco must ‘bet the farm”—indeed, it must lose the farm—just to get to any resolution of its constitutional claims. And, once in court, it must overcome dubious deference and remedial doctrines—and ... hope that it may receive retrospective relief.”

The lawsuit stems from the CPSC’s move to file a complaint against Leachco in early 2022 following two reports of infant deaths in connection to the company’s Podster loungers and for what it described as a “refusal to undertake a voluntary recall” of the products.

The Podster Playtime, one of the Leachco Podster loungers the U.S. Consumer Product Safety Commission issued a “stop use” warning about. Leachco says the loungers are safe if used as intended. (U.S. Consumer Product Safety Commission)

According to the agency’s complaint against the firm, the “product can cause airflow obstruction if an infant rolls, moves, or is placed in a position where the infant’s nose or mouth are obstructed by the Podsters.”

“While the Podsters contain warnings and instructions regarding use of the product, the complaint states it is foreseeable caregivers will use the infant lounger for infant sleep and without supervision, and the product is defective. Under federal law, consumers’ actual use is considered in deciding whether a product is defective,” it said.

The agency also warned consumers to “stop using” the products.

“For decades, CPSC has emphasized that the best place for a baby to sleep is on a firm, flat surface in a crib, bassinet or play yard,” it said at the time, adding that it’s still investigating the matter.

According to the warning, the agency said the babies who died were 17 days old and 4 months old. They suffocated when a shift in position blocked their mouths and noses. At the same time, Pottery Barn initiated a separate recall of more than 3 million of its infant loungers months before that.

In response, Leachco said on its website at the time that its Podster item “is not a sleep product” and is “intended for daytime use with awake babies.” And it added flatly that the “CPSC’s claims are wrong” because the “agency ignores the important role loungers can have for parents and makes the wrong choice for families. Leachco stands by the Podster’s quality, safety, and value.”

First Candle, a group that describes itself as one that seeks to end infant sleep-related deaths, said that the CPSC’s actions are unjust.

“We are deeply concerned that, if juvenile products that parents need to safely care for their baby are no longer on the market, they will turn to other makeshift solutions which have no safety standards and are not intended for the use of caring for a baby,” First Candle wrote, in support of Leachco.

Neither Leachno nor the CPSC have issued a public statement since the Supreme Court’s action.

The case is Leachco v. Consumer Product Safety Commission, U.S., No. 23A124.