Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

*

KEEZIO GROUP, LLC, *

*

Plaintiff, *

* Civ. No. MJM-25-1389

v. *

*

U.S. CONSUMER PRODUCT SAFETY *

COMMISION, et al., *

*

Defendants. *

*

* * * * * * * * * *

MEMORANDUM OPINION

Keezio Group, LLC (“Plaintiff” or “Keezio”) filed this civil action after the United States

Consumer Product Safety Commission issued a press release warning consumers about risks to

infants associated with one of Keezio’s products. ECF No. 1. The matter is before the Court on

Defendants’ motion to dismiss for lack of jurisdiction and failure to state a claim. ECF No. 20. No

hearing is necessary to resolve the pending motion. See Loc. R. 105.6 (D. Md. 2025). For the

reasons stated herein, Defendants’ motion shall be granted.

I. PROCEDURAL HISTORY

On May 1, 2025, Keezio filed a two-count Complaint against the United States Consumer

Product Safety Commission (“CPSC”); Peter A. Feldman, in his official capacity as Acting

Chairman of the CPSC; and Jennifer Sultan, in her official capacity as Acting Director of the Office

of Compliance and Filed Operations for the CPSC (collectively, “Defendants”). See ECF No. 1

(“Compl.”). The Complaint alleges unlawful agency action under the Administrative Procedure

Act (“APA”) and a violation of the Fifth Amendment’s Due Process Clause. Id.

On August 7, 2025, Defendants moved to dismiss for lack of jurisdiction and failure to

state a claim. ECF No. 20. Keezio filed a response in opposition on September 4, 2025, ECF No.

23, and Defendants filed a reply on November 24, 2025. ECF No. 27. Keezio also filed a Motion

to Take Judicial Notice of Government Record on September 4, 2025, ECF No. 24, which is

unopposed and shall be granted.

II. FACTUAL BACKGROUND

Keezio is a California corporation that designs, manufactures, imports, and sells infant and

toddler sleep products. See Compl. ¶¶ 8, 16. It sells products both through its own e-commerce

website as well as through Amazon as a “third-party logistics provider.” Id. at ¶¶ 18–19.

The United States Consumer Product Safety Commission (“CPSC”) is a federal agency

established by Congress to “protect the public against unreasonable risks of injury associated with

consumer products,” “assist consumers in evaluating the comparative safety of consumer

products,” and “develop uniform safety standards for consumer products.” 15 U.S.C. §§

2051(b)(1)–(3), 2053(a). CPSC carries out those missions by exercising various statutory

authorities, including under the Consumer Product Safety Act (“CPSA”), 15 U.S.C. § 2051 et seq.

CPSC is headquartered in Bethesda, Maryland and has a testing facility in Rockville, Maryland.

Compl. ¶ 9.

Children’s products such as Keezio’s are subject to mandatory safety standards and

enforcement by CPSC. Id. ¶ 38 (citing 15 U.S.C. § 2051). Keezio’s products include play yards1

1 A play yard, or playpen, “is a framed enclosure that includes a floor and has mesh or fabric sided

panels primarily intended to provide a play or sleeping environment for children. It may fold for storage or

travel.” Compl. ¶ 26.

and original equipment manufacturer (“OEM”) replacement play yard mattress pads, including

model HP-TPM-2, sold under the “hiccapop” brand name. See Compl. ¶¶ 8, 22.2

On November 18, 2024, CPSC issued a Notice of Violation stating that it had obtained

Keezio products from Amazon, tested the “hiccapop Pack and Play Mattress Pad Model HP-TPM-

2” (the OEM Replacement Mattress), and determined that the product failed to comply with one

or more provisions of 16 C.F.R. part 1241. Compl. ¶ 66. The Notice, signed by Senior Compliance

Officer Joseph Williams, directed Keezio to stop selling the “crib mattresses.” Id. ¶¶ 70, 74.

Keezio alleges that CPSC applied the wrong standard. Specifically, Keezio contends that

CPSC improperly applied 16 C.F.R. part 1241, when it should have applied 16 C.F.R. part 1221

to the OEM Replacement Mattress. Id. ¶ 67.

The test summary accompanying the Notice included a photograph of a mattress labeled

as manufactured in May 2024.3 Id. ¶ 68. The Notice did not limit its “stop sale” directive to

mattresses from that production period; instead, it broadly directed Keezio to stop selling the “crib

mattresses.” Id. ¶ 71.

Keezio alleges that CPSC did not have the HP-TRAVELPOD-DPM play yard (the “DPM

Play Yard”) to use when testing the May 2024 OEM Replacement Mattress. Id. ¶ 75. According

to Keezio, this omission is critical because the applicable testing protocol requires placing the

mattress into its intended play yard and measuring any gaps between the mattress and the play

yard’s interior walls. Without the corresponding play yard, Keezio alleges, proper testing cannot

be performed. Id. ¶ 76.

2 Keezio refers to the HP-TPM-2 mattress as the “OEM Replacement Mattress.” Compl. ¶ 22. This

memorandum opinion adopts that reference.

3 In May 2024, Keezio manufactured 13,944 OEM Replacement Mattresses. Compl. ¶ 69.

In December 2024, Keezio provided CPSC with materials it believed necessary for proper

testing under 16 C.F.R. part 1221, including: (1) a DPM Play Yard; (2) a “v2” play yard and its

corresponding mattress (not yet available for sale); and (3) a prototype mattress made with new

shell material and not intended for use with either play yard. Id. ¶ 78. Keezio requested retesting

under part 1221 rather than part 1241. Id. ¶¶ 67, 78. On January 13, 2025, CPSC issued a Results

of Sample Analysis Report for the DPM Play Yard that did not identify performance violations

but continued to apply 16 C.F.R. part 1241. Id. ¶ 79.

Keezio alleges that CPSC conducted improper testing. According to the Complaint, CPSC

tested the DPM Play Yard using the prototype mattress rather than the May 2024 OEM

Replacement Mattress. Id. ¶ 80. It also allegedly tested the May 2024 mattress with the v2 play

yard—despite the mattress being labeled for use with the DPM Play Yard—and concluded that the

mattress did not fit the v2 play yard. Id. ¶ 81. Keezio further alleges that CPSC did not test the

May 2024 mattress with the DPM Play Yard at all. Instead, CPSC allegedly compared its

measurements to the prototype mattress, determined that it was one and a half inches shorter,

concluded it would not fit the DPM Play Yard, and issued a second failing report. Id. ¶ 82.

After receiving the January 13, 2025, test results, Keezio provided videos demonstrating

proper fitment of the May 2024 mattress in the DPM Play Yard. Id. ¶ 83. Keezio alleges that CPSC

did not consider these materials and instead issued an Amended Notice of Violation that again

directed Keezio to recall the “hiccapop” mattress. Id. ¶ 84. The Amended Notice also stated that

CPSC tested the “hiccapop Play Yard” (i.e., the v2 play yard not yet available to consumers) and

found that it failed to comply with ASTM F406, 16 C.F.R. § 1221.2. Id. ¶ 85. CPSC also directed

Keezio to stop selling the play yard, despite the fact that this product was not yet on the market.

Id. ¶ 86.

On March 5, 2025, CPSC’s Division of Regulatory Enforcement notified Amazon by email

that it would issue a unilateral press release the following day regarding Keezio’s OEM

Replacement Mattress. Id. ¶ 87. CPSC did not notify Keezio before contacting Amazon. Id. The

email instructed Amazon to send the press release to all customers who had purchased any OEM

Replacement Mattress on Amazon—not just those from the May 2024 production. Id. ¶ 88. Less

than thirty minutes after emailing Amazon, CPSC informed Keezio’s counsel of the planned press

release. Id. ¶ 89.

On March 6, 2025, at 1:23 a.m., Keezio responded that it had been denied due process and

that the press release would harm its reputation and goodwill. Id. ¶ 93. Keezio requested review

by CPSC’s General Counsel or, alternatively, a hearing before the Commission. Id. ¶ 94. CPSC

did not respond and proceeded to publish the press release later that day (the “Press Release”). Id.

¶¶ 95, 101.

The Press Release advised consumers to stop using Keezo’s OEM Replacement Mattresses

immediately due to a risk of “Serious Injury or Death from Entrapment or Suffocation.” Id. ¶ 102.

Amazon distributed the notice to approximately 108,000 customers and offered refunds at

Keezio’s expense. Id. ¶¶ 103, 104, 124. Nearly 34,000 customers requested refunds—far

exceeding the number of May 2024 units sold—totaling approximately $1.2 million. Id. ¶ 125.

Amazon did not require proof of disposal, instead allowing customers to certify destruction. Id. ¶¶

104, 112. It also removed all Keezio OEM Replacement Mattresses from its platform, regardless

of production date. Id. ¶ 127.

III. STANDARD OF REVIEW

A defendant may move to dismiss a complaint for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). The plaintiff bears the burden of establishing the court’s

subject matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (citing

Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.

1991)). “[W]hether an agency’s action ‘constituted final agency action under the APA so as to be

reviewable in court’ is ‘a question of subject matter jurisdiction.’” Am. Acad. of Pediatrics v. FDA,

379 F. Supp. 3d 461, 474 (D. Md. 2019) (quoting Invention Submission Corp. v. Rogan, 357 F.3d

452, 458 (4th Cir. 2004)). Where, as here, a defendant raises a facial challenge under Rule

12(b)(1)—arguing that the complaint fails to allege facts sufficient to establish jurisdiction—the

court accepts the complaint’s allegations as true and affords the plaintiff the same procedural

protections as under Rule 12(b)(6). Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

Under Rule 12(b)(6), a complaint must be dismissed if it “fail[s] to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Rule

12(b)(6), the pleading must state a “plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662,

678–79 (2009). A claim is plausible when the facts alleged permit the court to draw a reasonable

inference that the defendant is liable. Id. at 678. Rule 12(b)(6) “tests the sufficiency of a

complaint”; it does not resolve factual disputes or the merits of a claim. Velencia v. Drezhlo, Civ.

No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).

When evaluating motions under Rules 12(b)(1) and 12(b)(6), the court may take judicial

notice of facts “not subject to reasonable dispute” because they “can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

201(b)(2). “Specifically, the court may take judicial notice of publicly available information on

state and federal government websites without converting the motion to one for summary

judgment.” Est. of Green v. City of Annapolis, 696 F. Supp. 3d 130, 147 (D. Md. 2023) (citing

U.S. v. Garcia, 855 F.3d 615, 621 (4th Cir. 2017)). The court may also consider documents

incorporated into the complaint by reference. Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166

(4th Cir. 2016).

IV. DISCUSSION

A. APA Review

The first count of the Complaint asserts a claim under the APA that CPSC’s issuance of

the Press Release was an abuse of discretion and an unlawful, arbitrary and capricious agency

action. The APA permits judicial review of a “final agency action for which there is no other

adequate remedy in a court . . . .” 5 U.S.C. § 704. The statute “waives the federal government’s

sovereign immunity from suit and permits federal court review of final agency actions.” Maryland

v. Smith, 766 F. Supp. 3d 498, 511 (D. Md. 2025) (quoting COMSAT Corp. v. Nat’l Sci. Found.,

190 F.3d 269, 274 (4th Cir. 1999)) (cleaned up). Under the APA, district courts “have jurisdiction

to set aside agency action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law,’ including action that is ‘contrary to constitutional right, power, privilege, or

immunity.’” Id. at n.18 (quoting 5 U.S.C.A. § 706(2)(A)–(B)). In the Fourth Circuit, the question

of whether an agency action is a reviewable final agency action is a jurisdictional issue. See Jake’s

Fireworks Inc. v. U.S. Consumer Prod. Safety Comm’n, 105 F.4th 627, 631 (4th Cir. 2024), cert.

denied, 145 S.Ct. 2700 (2025) (explaining that the APA waives the federal government’s sovereign

immunity and “[b]ecause sovereign immunity is jurisdictional in nature, finality under the APA is

a jurisdictional requirement”) (citation modified). Defendants argue that this Court lacks subject-

matter matter jurisdiction because the Press Release is not a “final agency action.” Def. Mem.

(ECF No. 20-1) at 8–16.

Keezio argues that CPSC’s “unilateral” Press Release constitutes a final agency action

because it represents a “final disposition” of the agency’s decision-making process—i.e., it is an

“order” under 5 U.S.C. § 551(6)—and is subject to statutory and regulatory requirements ensuring

accuracy and fairness. Pl. Opp’n (ECF No. 23) at 9–11. Moreover, Keezio contends, the Press

Release marked the consummation of CPSC’s process, following testing, notices of violation, and

Keezio’s unsuccessful attempts to respond or seek review. See id. at 14–17. According to Keezio,

CPSC’s determination that the May 2024 production OEM Replacement Mattress failed to comply

with one or more provisions of 16 C.F.R. part 1241 “set in motion legal obligations upon the

Commission,” leading to final agency action. Id. at 17. Specifically, Keezio argues that CPSC was

obligated “to determine that publication of a unilateral press release was accurate and not

misleading. Whether or not the Commission reached the correct conclusion, before it could publish

the unilateral press release, it had to reach a conclusion, and it had to be final.” Id.

The APA defines “agency action” to include “the whole or a part of an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof, or failure to act . . . .” 5 U.S.C. §

551(13); see also Veterans Legal Servs. Program v. U.S. Dep’t of Def., 990 F.3d 834, 839 (4th Cir.

2021) (noting that § 551(13) “refers only to conduct that is ‘circumscribed’ and ‘discrete’”

(quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004))). To be subject to review

under the APA, “the ‘agency action’ must be ‘final.’” Nat’l Ass’n for the Advancement of Colored

People v. Bureau of the Census (“NAACP”), 945 F.3d 183, 189 (4th Cir. 2019) (quoting Vill. of

Bald Head Island v. U.S. Army Corps of Eng’rs, 714 F.3d 186, 194 (4th Cir. 2013)). An agency

action must satisfy two conditions to be deemed “final” under the APA. Id.; see also U.S. Army

Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 597 (2016). First, the action must “mark the

‘consummation’ of the agency’s decisionmaking process[.]” Bennett v. Spear, 520 U.S. 154, 178

(1997) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113

(1948)). Second, “the action must be one by which ‘rights or obligations have been determined,’

or from which ‘legal consequences will flow[.]’” Id. at 178 (quoting Port of Boston Marine

Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

Several courts, including a judge of this Court, have found or suggested that press releases

do not constitute final agency action subject to APA review. See Pharm. Mfrs. Ass’n v. Kennedy,

471 F. Supp. 1224, 1227–33 (D. Md. 1979); Arrow Reliance, Inc. v. Califf, No. 2:22-cv-1057,

2022 WL 3104102, at *4 (W.D. Wash. Aug. 4, 2022) (“The APA clearly defines when agency

action occurs, [and] the issuing of a notice or press release is not included in that definition.”);

Barry v. U.S. S.E.C., No. 10-CV-4071 CBA, 2012 WL 760456, at *5–6 (E.D.N.Y. Mar. 7, 2012);

Hoxsey Cancer Clinic v. Folsom, 155 F. Supp. 376, 378 (D.D.C. 1957); Hearst Radio v. FCC, 167

F.2d 225, 226–27 (D.C. Cir. 1948) (FCC publication, containing allegedly defamatory information

about station owner, did not satisfy “the statutory definition of ‘agency action’”). Cf. Pub. Util.

Dist. No. 1 of Snohomish Cnty., Washington v. Bonneville Power Admin., 250 F. App’x 821, 823

(9th Cir. 2007) (“We lack jurisdiction to entertain the petition because the issuance of the press

release is neither a final action nor the implementation of a final action within the meaning of

[Northwest Power Act].”).

Keezio’s argument that the Press Release is an “order,” and thus agency action, is

unpersuasive. The APA defines “order” as “the whole or a part of a final disposition, whether

affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule

making but including licensing.” 5 U.S.C. § 551(6). The Press Release does not “order [Keezio]

to do anything,” nor does it impose “determinate consequences” beyond practical effects. Intl. Tel.

& Tel. Corp., Commun. Equip. and Sys. Div. v. Loc. 134, Intern. Broth. of Elec. Workers, AFL-

CIO, 419 U.S. 428, 443, 445 (1975) (holding that an order under § 551(6) must have some

“determinate consequences for the party to the proceeding” not just “practical consequences”); see

also Hoxsey Cancer Clinic, 155 F. Supp. at 378 (“The defendants have made no order; they are

adjudicating no rights; they are issuing no directions. What they are doing is disseminating

information and warning the public against the use of certain medicines and of a certain treatment

for internal cancer.”). Nor does the Press Release fix “obligations or legal relationships.” Georator

Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (holding that EEOC’s “determination of

reasonable cause to believe that the charge of discrimination filed against the plaintiff was true”

was not an “order”).

To be sure, the Complaint alleges significant downstream effects of the Press Release,

including refunds issued by Amazon at Keezio’s expense, reputational harm, and removal of

products from Amazon’s platform. See Compl. ¶¶ 103–112, 125, 127. But such market-based

consequences do not transform the Press Release into an agency “order.” See Senior Executives

Ass’n v. U.S., Civ. No. AW-12-02297, 2013 WL 1316333, at *17 (D. Md. Mar. 27, 2013) (holding

that the government’s planned publication of plaintiffs’ financial information “is not an ‘order’

because it is not the final disposition of an adjudicatory process”); Invention Submission Corp. v.

Rogan, 357 F.3d 452, 459 (4th Cir. 2004) (stating that the persuasive value of agency reports or

publications do not create a reviewable agency action under the APA because such reports or

publications do not create legal rights or obligations) (citing Flue Cured Tobacco Cooperative

Stabilization Corp. v. EPA, 313 F.3d 852, 861 (4th Cir. 2002)).4

4 In Invention Submission, the Fourth Circuit held that the Patent and Trademark Office’s

advertising campaign warning consumers about invention promotion scams did not constitute final agency

action. Id. at 460. Any harm to the plaintiff that resulted from independent third-party responses to the

public awareness campaign “cannot be imputed to the PTO for purposes of determining whether its conduct

was a final agency action.” Id.

Notably, CPSC regulations provide a mechanism for seeking retraction of allegedly

inaccurate or misleading disclosures. See 16 C.F.R. § 1101.52(b). That regulation provides, in part,

that a manufacturer or other person

may request a retraction if he/she believes the Commission or an

individual member, employee, agent, contractor or representative of

the Commission has made public disclosure of inaccurate or

misleading information, which reflects adversely either on the safety

of a product with which the firm deals or on the practices of the firm.

16 C.F.R. § 1101.52(b). Apparently, Keezio did not invoke this procedure before filing suit. See

Def. Mem. at 10 n.9; Pl. Opp’n at 2. Instead, Keezio relies on a March 6, 2025, email requesting

internal review or a hearing, but it cites no authority to show that such an email can substitute for

the retraction procedure prescribed by regulation. As CPSC acknowledges, a formal retraction

request would have required the agency to determine whether it had disseminated inaccurate or

misleading information, culminating in a Commission “decision.” See 16 C.F.R. § 1101.52(d);

Def. Mem. at 17 n.9. That decision might constitute an agency action; the Press Release does not.

Even if the Press Release fell within the APA’s definition of “agency action,” it is not a

final agency action. The Press Release did not determine Keezio’s, nor any other party’s, “rights

or obligations[,]” nor did it impose any “legal consequences” upon Keezio. Bennett, 520 U.S. at

178 (citations omitted). And the facts Keezio sets forth in the Complaint do not establish that the

Press Release was the “consummation of [CPSC’s] decision making process[.]” NAACP, 945 F.3d

183, 189 (quoting Vill. of Bald Head Island, 714 F.3d at 194); see also Pub. Util. Dist. No. 1, 250

F. App’x at 823 (holding that press release “is not a final action because the press release fails both

prongs of [Bennett finality test]”).

The Fourth Circuit’s recent decision in Jake’s Fireworks is instructive. The case arose after

CPSC’s Compliance Office sampled fireworks imported by Jake’s Fireworks and issued several

Notices of Noncompliance asserting that the products were dangerously overloaded with explosive

materials. Jake’s Fireworks, 105 F.4th at 630. Jake’s Fireworks sought judicial review twice. In

its first lawsuit, filed in 2019, it sought injunctive and declaratory relief, arguing that the Notices

constituted unlawful agency enforcement action. Id. The district court dismissed the case,

concluding that the Notices were not reviewable final agency actions because they did not mark

the consummation of the Commission’s decisionmaking process. Id. (citing Jake’s Fireworks Inc.

v. U.S. Consumer Prod. Safety Comm’n, 498 F. Supp. 3d 792, 806–07 (D. Md. 2020)). The district

court emphasized two points: first, Jake’s Fireworks could request an informal hearing with the

Compliance Office to seek reconsideration; and second, the Notices were merely “intermediate

ruling[s] of a subordinate official.” Id. After that dismissal, Jake’s Fireworks requested an informal

hearing in November 2020 to challenge the Notices. When the Compliance Office declined to hold

a hearing or revisit its findings, Jake’s Fireworks filed a second lawsuit, again challenging the

Commission’s actions and alleging that it had been unable to sell over $2.6 million worth of

fireworks due to fear of enforcement penalties. Id. at 630–31. The district court again dismissed

the case. On appeal, the sole question before the Fourth Circuit was whether the Notices constituted

reviewable final agency action under the APA. Id. The Fourth Circuit held that they did not. It

explained that the Notices reflected only “preliminary findings,” did not “bind” either the

Commission or the company, and did not “trigger any of the administrative, civil, or criminal

proceedings that the Commission could pursue.” Id. at 632–33. Instead, the court emphasized,

CPSC’s investigatory and enforcement process culminates only when “the Commission itself”

issues a “final order[]” announcing a definitive determination that a violation has occurred. Id. at

632.

Similarly here, the Press Release does not constitute a “final order” of the Commission or

resolve an adjudicatory proceeding; rather, it reflects the agency’s view that certain products do

not comply with applicable standards. Like the notices in Jake’s Fireworks, the Press Release does

not bind Keezio, “command any action,” or itself initiate enforcement proceedings. Id. at 633; see

also Pharm. Mfrs. Ass’n, 471 F. Supp. at 1227 (“The issuance of the instructions . . . seems to be

a long way from constituting ‘final agency action’ in the sense that the CPSC is doing or proposing

to do anything to the plaintiffs.”); Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940,

944 (D.C. Cir. 2012) (warning letters are advisory and do not constitute final agency action);

Barry, 2012 WL 760456, at *6 (finding that press release is not “final” agency action subject to

APA review because “no rights or obligations were determined by the press release, and . . . the

legal consequences faced by [plaintiff] flowed not from the press release[]”).

Nor do CPSC’s internal publication procedures transform the Press Release into final

agency action. Although the agency must check for accuracy and fairness before publication, see

15 U.S.C. § 2055(b)(6); 16 C.F.R.§ 1101.1(c), such internal review does not mark the

consummation of the agency’s decisionmaking process where no binding determination or legal

consequence follows. Indeed, as noted supra, Keezio has not invoked the available regulatory

mechanism for seeking retraction. See 16 C.F.R. § 1101.52(b). Had it done so, the process would

have culminated in a formal Commission decision regarding whether the disclosure was inaccurate

or misleading. Id. § 1101.52(d)–(e). The absence of such a determination supports the conclusion

that the Press Release is not final agency action.

Keezio argues that Defendants “ignore cases involving lawsuits against the CPSC where

courts had no difficulty concluding” that CPSC’s actions, including press releases, were final

agency actions. See Pl. Opp’n at 17–18. First, Keezio cites Relco, Inc. v. Consumer Product Safety

Commission, 391 F. Supp. 841 (S.D. Tex. 1975). There, the district court dismissed a challenge to

a CPSC press release because the plaintiffs were “not seeking to review any finally adjudicated

determination or order.” Id. at 847. Although the court found that the agency’s warning was final

“in its most certain and practical sense[,]” id. at 846, it held that “review of the warning must

initially be brought before the agency and is not final at law until it is so brought[,]” id. at 847.5

Keezio’s reliance upon Relco is misplaced.6

Next, Keezio cites Kaiser Aluminum & Chemical Corp. v. U.S. Consumer Product Safety

Commission, 414 F. Supp. 1047 (D. Del. 1976). In that case, however, CPSC conceded that the

challenged publications would constitute final agency action absent a pending rulemaking. Id. at

1054. No such concession has been made here. Moreover, like Relco, Kaiser predates Bennett v.

Spear, 520 U.S. 154 (1997)—which established the governing test for final agency action—by

more than two decades, limiting its persuasive value.

Finally, Keezio relies heavily on Doe v. Tenenbaum, 127 F. Supp. 3d 426 (D. Md. 2012).

There, Judge Williams of this Court held that CPSC’s decision to publish, over the plaintiff’s

objection, a third-party report concerning an infant death constituted a final agency action. Id. at

459–65. The Court explained that “the Commission’s decision perfected an adversarial process”

defined in the statute in which the plaintiff was required to file an objection supported by

“evidence,” and the Commission made a “legal determination that Plaintiff failed to carry the

burden of proof and that the report otherwise satisfied the statutory and regulatory preconditions

for publication.” Id. at 463. The Court emphasized that “[t]hese conditions”—“consummation of

5 Notably, the court did not analyze whether the warning constituted “agency action.” By contrast,

courts in the Fourth Circuit “determine first” whether the challenged conduct qualifies as “agency action”

before turning to the question of finality. Golden & Zimmerman, L.L.C. v. Domenech, 599 F.3d 426, 431

(4th Cir. 2010).

6 Likewise, U.S. v. 52,823 Children’s Dolls, More or Less, No. 89-CIV-4643, 1989 WL 140250

(S.D.N.Y. Nov. 13, 1989), does not advance Keezio’s position. There, the court did not independently

analyze whether a press release constituted final agency action, but instead relies upon Relco for the

proposition that the issuance of a press release is itself final agency action requiring Commission approval.

Id. at *7. As explained, Relco did not so hold.

an adversarial process” and determination of the plaintiff’s “right . . . to prevent a materially

inaccurate report from” being published—were central to its decision and “are not present

whenever the government plans to publish controversial research or completes a multistep

administrative process.” Id. at 462–63.

Tenenbaum is distinguishable in several key respects. First, Tenenbaum involved a

statutory scheme that required CPSC to publish certain third-party reports of harm after providing

the manufacturer with notice and an opportunity to object. Here, CPSC had no “statutory mandate”

or “legal obligation” to publish the Press Release. Id. at 460–61. Second, the plaintiff in

Tenenbaum invoked the applicable regulatory procedures by filing a formal material inaccuracy

claim, triggering an adjudicative process that culminated in a definitive agency determination. Id.

at 461 (citing 16 C.F.R. § 1102.26(a) and U.S.C. § 2055a(c)(4)(A)). Accordingly, the Court

rejected the Commission’s arguments about the intermediate nature of its decision to publish a

report, concluding instead that the decision was the consummation of a lengthy informal

adjudication, which constituted finality for purposes of judicial review under the APA. Id. at 464–

65. Here, by contrast, Keezio did not pursue the available regulatory mechanism for seeking

retraction. And its informal communications with CPSC staff do not resemble the statutorily

prescribed, adversarial process at work in Tenenbaum. Instead, Keezio’s position is more akin to

that of the plaintiff in Jake’s Fireworks in its initial suit, where the court found that the agency’s

decisionmaking process had not yet reached its endpoint, in part because further administrative

review remained available.7, 8

In sum, the cases Keezio cites do not establish that the Press Release at issue in this case

constitutes a final agency action. Indeed, the weight of authority suggests otherwise. Because

Keezio has not established the jurisdictional prerequisites of an “agency action” that is “final,” the

Court lacks subject-matter jurisdiction. See FlueCured Tobacco Coop. Stabilization Corp., 313

F.3d at 857. Therefore, Keezio’s APA claim must be dismissed.

B. Due Process

In the second count of the Complaint, asserted under 42 U.S.C. § 1983, Keezio alleges that

Defendants “denied Keezio its due process rights, has unlawfully stopped the sale of all Keezio

OEM Replacement Mattresses regardless of production date, and has caused Keezio to refund to

customers the purchase price” of those products. Compl. ¶ 129.

Defendants argue that, although Keezio characterizes the Press Release as “false,

misleading and inaccurate,” there is “no constitutional doctrine converting every defamation by a

public official into a deprivation of liberty” under the Due Process Clause. Def. Mem. at 17 (citing

Paul v. Davis, 424 U.S. 693, 702 (1976)). According to Defendants, reputational harm alone—

7 Notably, Keezio’s Complaint alleges that it exhausted administrative remedies; however, Keezio

does not dispute that it did not follow 16 C.F.R. § 1101.52(b) to request a retraction. See Pl. Opp’n at 2

(“…Defendants assert that Keezio should have sought a retraction directly from the CPSC [16 C.F.R. §

1101.52(b).] This ignores Keezio’s requests for independent review by the Commission’s general counsel

and, failing that, a hearing before the Commission both of which were rejected.”).

8 Keezio requests, and CPSC does not oppose, that this Court take judicial notice of a public

statement by Commissioner Feldman and former Commissioner Dziak explaining their abstention from a

Commission vote on whether to retract a statement in an unrelated matter involving a product sold by

Dreamland Baby. See ECF Nos. 24 & 24-2. As relevant here, Feldman and Dziak expressed the view that

Dreamland Baby was not without recourse for the challenged public statements and that the requested relief

is best pursued in federal court because the statements constituted “final agency action.” Id. In support, the

Commissioners cited Doe v. Tenenbaum, 127 F. Supp. 3d 426, 465 (D. Md. 2012). As explained above,

however, Tenenbaum is materially distinguishable from this case.

absent a more tangible interest—does not implicate any protected liberty or property interest. Id.

And Keezio, Defendants argue, fails to identify any specific property interest of which it has been

deprived. Id. Instead, the Complaint alleges harm to Keezio’s business, including Amazon-issued

refunds, reputational damage, and removal of its products from Amazon’s platform. Id. (citing

Compl. ¶¶ 103–112, 124, 127, 129). Defendants contend that these harms do not reflect a

“distinct[]” change in legal status but instead “flow[] from injury … to a plaintiff’s reputation.” Id.

(quoting Siegert v. Gilley, 500 U.S. 226, 234 (1991)). Defendants therefore maintain that Keezio’s

alleged financial losses are not a sufficiently direct deprivation of property to state a due process

claim. Id. at 25.

Keezio responds that, although reputational harm alone is insufficient, a due process claim

may arise where such harm is coupled with state action that distinctly alters or extinguishes legal

status. Pl. Opp’n at 18. Keezio contends that the Complaint plausibly alleges such a deprivation.

Id. In particular, Keezio argues that when CPSC “condemns a product as inherently dangerous and

unfit, that denouncement may be tantamount to an economic death knell.” Id. (quoting Relco, 391

F. Supp. at 846). Keezio alleges that the Notice of Violation and Amended Notice directed it to

stop selling its products, and that the Press Release—disseminated by Amazon at CPSC’s

request—caused widespread refunds, chargebacks, and removal of its products from the

marketplace. Id. According to Keezio, the combined effect of these actions was “tantamount to a

product ban,” effectively extinguishing its ability to sell its products. Id. Keezio further asserts that

the resulting chargebacks and lost revenue constitute a tangible deprivation of property directly

traceable to CPSC’s conduct. Id.

The second count of the Complaint does not state a plausible due process claim. The Fifth

Amendment’s Due Process Clause provides that no person shall be “deprived of life, liberty, or

property, without due process of law.” See U.S. Const. amend. V. “Like its Fourteenth Amendment

counterpart, Fifth Amendment due process has both ‘substantive and procedural components.’”

D.B. v. Cardall, 826 F.3d 721, 739 (4th Cir. 2016) (citation omitted). A procedural due process

claim requires that Keezio show “(1) [it] had property or a property interest (2) of which [CPSC]

deprived [it] (3) without due process of law.” Sunrise Corp. of Myrtle Beach v. City of Myrtle

Beach, 420 F.3d 322, 328 (4th Cir. 2005) (citation omitted). A substantive due process claim

requires (1), again, “property or a property interest; (2) that the [government] deprived [Keezio]

of this property or property interest; and (3) that the [government’s] action falls so far beyond the

outer limits of legitimate governmental authority that no process could cure the deficiency.” Id.

(citation omitted). “To establish a substantive due process violation, the plaintiff must show that

[the government actor’s] behavior was ‘so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.’” Dean ex rel. Harkness v. McKinney, 976 F.3d 407, 413 (4th

Cir. 2020) (citation omitted).

Here, Keezio fails to allege that it had a cognizable property interest of which CPSC

deprived it or any other conduct by CPSC that may fairly be said to shock the contemporary

conscience. Accepting the facts in the Complaint as true, there is no doubt, as Keezio argues, that

“CPSC’s actions caused real and substantive effects on Keezio’s business.” Pl. Opp’n at 18. But

“[e]vidence of the impact on [a plaintiff’s] market share and sales . . . does not show that its

property right—the ability to sell its product lawfully—has been deprived by [the government]

and instead, shows third party and market reactions to [the government’s action].” Mallinckrodt

Inc. v. FDA, Civ. No. DKC-14-03607, 2015 WL 13091366, at *17 (D. Md. July 29, 2015).

In Mallinckrodt, a pharmaceutical company alleged that its approved drug had been

“effectively taken off the market” and its property rights impaired after the FDA changed the

drug’s therapeutic equivalence rating, which in turn led pharmacists and distributors to stop

purchasing or dispensing it. Id. at *16. The court distinguished between a cognizable deprivation—

where “the property itself or the use or benefit of the person’s property interest [is] taken for a

short period of time”—and the broader, rejected proposition that due process requires notice and

a hearing before any government action that merely affects a product in which a party has an

interest. Id. Because the FDA had not suspended or revoked the plaintiff’s authority to sell its drug,

the court held that no property deprivation had occurred. Id. Instead, the plaintiff’s losses were

caused by independent third parties who reacted to the FDA’s rating but were not compelled by it.

Id. The court explained that such “consequential impacts”—including “the decrease in market

share and financial losses”—were “not a sufficiently direct deprivation of property to state a due

process violation.” Id. at *16–17.

The same reasoning applies here. Keezio does not allege that CPSC prohibited or otherwise

eliminated its ability to sell its products. Rather, Keezio alleges that its mattresses were “effectively

taken off the market” because Amazon chose to issue refunds and cease sales.9 “This indirect effect

… can hardly be said to constitute a constitutional deprivation of property deserving fifth

amendment protection.” Indus. Safety Equip. Ass’n, Inc. v. EPA., 837 F.2d 1115, 1122 (D.C. Cir.

9 To the extent Keezio argues that the Amended Notice of Violation is the source of a constitutional

deprivation, that theory is also unpersuasive in light of Jake’s Fireworks. There, the Fourth Circuit held that

similar CPSC notices were not final agency action because they did not consummate the agency’s

decisionmaking process. 105 F.4th at 634. Although the court did not address whether such notices have

“direct and appreciable legal consequences,” id. at n.4, the Fourth Circuit has made clear that where a

“preliminary determination is without legal effect in and of itself, due process is satisfied so long as there

is an opportunity to be heard before any final agency action becomes effective.” Georator, 592 F.2d at 768–

69 (citing Ewing v. Mytinger & Casselberry, 339 U.S. 594, 598 (1950)). Here, Keezio does not allege that

the Amended Notice was final agency action or had binding effect. Instead, its Complaint alleges, in its

second count, that CPSC “caused Keezio to refund to customers” and seeks relief in the form of a retraction

of the Press Release. Compl. ¶¶ 129, 131. These allegations confirm that Keezio’s claimed injury stems

from third-party reactions to the Press Release, not from any government action that altered Keezio’s legal

rights or obligations.

1988). Keezio has not alleged that it has been deprived “some benefit to which [it] ha[s] a legal

right.” Gen. Elec. Co. v. Jackson, 610 F.3d 110, 121 (D.C. Cir. 2010).10

Nor does Keezio fall within the line of cases holding that a due process violation may arise

when, in addition to reputational harm, “the government-imposed stigma is so severe that it

‘broadly precludes’ plaintiffs from pursuing ‘a chosen trade or business.’” Gen. Elec. Co, 610 F.3d

at 121 (quoting Trifax Corp. v. District of Columbia, 314 F.3d 641, 644 (D.C. Cir. 2003)). In Old

Dominion Dairy Products, Inc. v. Sec. of Def., the D.C. Circuit held that due process required the

government to provide a contractor notice of charges that the contractor lacks honesty or integrity

because contractors unfavorably audited by the government, though not formally debarred, are

“effectively put . . . out of business.” 631 F.2d 953, 963 (D.C. Cir. 1980). Plaintiffs claiming such

“broad preclusion” must allege something approaching “formal exclusion from a chosen trade or

profession,” not merely claims analogous to defamation. Trifax Corp., 314 F.3d at 644. The facts

alleged in Keezio’s Complaint do not meet this demanding standard.11

The Complaint fails to state a plausible due process claim in its second count. Therefore,

it must be dismissed.

10 I do not mean to trivialize the impact that CPSC’s statement had on Keezio’s business. But it is

well established that market impact alone cannot sustain a due process claim. As the Fourth Circuit observed

in its APA analysis in Flue–Cured Tobacco, it is unlikely that “Congress intended to create private rights of

actions to challenge the inevitable objectionable impressions created whenever controversial research by a

federal agency is published. Such policy statements are properly challenged through the political process

and not the courts.” 313 F.3d at 858; see also Invention Submission Corp., 357 F.3d at 459 (quoting the

same).

11 Among other things, Keezio alleges that it is currently engaged in the business of selling toddler

sleep products, that its reputation has made it a market leader, and that it is among the largest children’s

brand companies in the United States. See, e.g., Compl. ¶¶ 8, 17, 20, 21.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 20, shall be granted,

and the Complaint shall be dismissed without prejudice. Plaintiff’s Motion to Take Judicial Notice,

ECF No. 24, shall also be granted.

A separate Order will issue.

Date: April 22, 2026

Matthew J. Maddox

United States District Judge