What Is Disruptive May Be Key in Whether Reinstatements Are Stayed

Whether disruptions at CPSC are due to the firings or to the reinstatements of the Democratic commissioners is a question that may determine if two stays are granted. The answer involves whether the status quo would be keeping the three statutorily protected commissioners at work or leaving them dismissed until courts settle questions of the constitutionality of the provision in the CPSA that forbids their being fired except for neglect of duty or malfeasance in office.

In one of the stay requests – to the 4th circuit U.S. appeals court – the Department of Justice (DOJ) is portraying a power struggle since the trio returned as disruptive and "chaos." That fight was over an agenda meeting that ultimately resulted in a directive undoing numerous actions taken during the Democrats' absences (see related stories in this issue).

DOJ is especially focused on Commissioner Richard Trumka. He posted a statement (bit.ly/4n6Mg5k) to his area of the CPSC website describing his desire to move against actions taken during the lockout of the Democrats. Then he and the other two forced the meeting and vote.

The DOJ motion describes Acting Chairman Peter Feldman's attempt to cancel the planned meeting, pointing to statements by him and Trumka in an internal email chain:

"The Acting CPSC Chairman stated that 'in light of the breadth of this proposed language and its potential for extensive disruption,' these items should be discussed later after time for deliberation, particularly given the holiday-shortened week 'and the ongoing deconflict and recusal analysis'…Plaintiffs, however, instructed CPSC staff to attend the meeting, stating that if staff did not attend they would be 'ignor[ing] the directive of the Commission'…Plaintiff Trumka followed this order by stating 'I suggest you [agency staff] read the [district] Court order and decide whether you want to personally violate it.'"

Later, the DOJ motion further described the situation:

"Commissioner Trumka proceeded to hold an unauthorized, 'emergency' meeting anyway, ordering the agenda planning committee to either attend or 'personally violate [this Court's order]'...The three reinstated Commissioners then approved the Ballott Vote package…This purported meeting epitomizes the chaos that has and will continue to ensue during the course of litigation where the final verdict on whether plaintiffs were unlawfully removed has not yet been rendered on appeal. Indeed, Acting Chairman Feldman [and] Commissioner [Douglas] Dziak maintain that the meeting was unauthorized and invalid."

The motion referenced a declaration by Tripp DeMoss, Feldman's senior counsel, and DOJ asserted:

"In addition to the procedural chaos, as the DeMoss Declaration explains, the agenda proposal will be extremely disruptive to the Agency by, for example, terminating personnel, changing all Records of Commission Action for votes taken since May 8, 2025 to render them 'null, void, and of no effect,' and notifying the Office of the Federal Register that the vote to withdraw a particular notice of proposed rulemaking is 'null and void' and to 'direct publication' of the notice…The proposal is doubly disruptive because it conflicts with the balance of powers set forth in the Consumer Product Safety Act and would usurp the Acting Chairman's authority over personnel – which the statute gives him and the Commission has always understood the Chair to have."

DOJ made similar but briefer contentions in a stay request in Maryland U.S. district court, where the ruling occurred.

Opposing motions in both courts for the reinstated commissioners point to Judge Matthew Maddox's assertion in his district court ruling that the type of disruption at issue – repeated firings and reinstatements – is not likely because he issued a permanent injunction. Both motions then assert that the disruptions DOJ describes are due to the firings.

The district court motion (bit.ly/4l8WgsW) argues:

"[T]he CPSC's General Counsel, on the same day that the Court entered its order, informed all CPSC leadership that Plaintiffs had been 'fully reinstated' to their positions… Plaintiffs have been carrying out their duties as Commissioners…as this Court has held they have a legal right to do. Far from preventing disruption, then, granting a stay would unsettle the status quo by ejecting Plaintiffs from the roles they currently occupy based on the speculative possibility that the Fourth Circuit might disagree with this Court's conclusion on the merits."

The appeals court motion (bit.ly/45wMY5v) argues:

"Plaintiffs are currently serving as Commissioners, and it is Defendants who seek to upend the status quo by preventing them from continuing to serve in the positions that the district court held they are entitled to occupy. Moreover, it is Defendants who bear the burden of establishing that the disruption that would result from the temporary relief they seek would serve the balance of the equities and the public interest. Defendants have not come close to doing so."

DOJ is raising disruption because a recent Supreme Court stay of similar reinstatements at two other agencies included concerns about disruptions if the officials were repeatedly removed and returned to their work while their situations work through the appeals process.

Since the filing of DOJ's 4th circuit motion, Trumka has posted a follow-up statement (bit.ly/4l846Tz) describing and celebrating the actions in the approved directive.