Amicus Curiae Brief — Jake's Fireworks, Inc., Petitioner v. Consumer Product Safety Commission, et al.

No. 24-693

───────────────────────────

In the

Supreme Court of the United States

──────────────────────────

JAKE’S FIREWORKS, INC.,

Petitioner,

v.

CONSUMER PRODUCT SAFETY COMMISSION, ET AL.,

Respondents.

──────────────────────────

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

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AMICUS CURIAE BRIEF OF THE BUCKEYE

INSTITUTE, MANHATTAN INSTITUTE,

AMERICANS FOR PROSPERITY FOUNDATION,

AND NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL CENTER,

INC., IN SUPPORT OF PETITIONER

──────────────────────────

David C. Tryon

Counsel of Record

Alex M. Certo

The Buckeye Institute

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

Counsel for The Buckeye Institute

*Counsel continued on the next page

John J. Park, Jr.

P.O. Box 3073

Gainesville, GA 30503

(678) 608-1920

JackParklaw@gmail.com

Counsel for The Buckeye Institute

Ilya Shapiro

Tim Rosenberger

Manhattan Institute

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute

Counsel for Manhattan Institute

Michael Pepson

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Americans for Prosperity Foundation

Elizabeth Gaudio Milito

Patrick J. Moran

NFIB SMALL BUSINESS LEGAL CENTER, INC.

555 12th Street, NW Ste. 1001

Washington, DC 20004

(202) 406-4443

elizabeth.milito@nfib.org

patrick.moran@nfib.org

Counsel for Amicus NFIB Small Business Legal Center,

Inc.

i

QUESTION PRESENTED

Whether judicial review under the Administrative

Procedure Act for such notices of violation is

unavailable until the agency further acts through

formal enforcement.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................ i

TABLE OF AUTHORITIES........................................ iii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ...................................... 2

ARGUMENT ................................................................. 3

I. Regulated parties are entitled to rely on

governmental threats of enforcement ................. 3

II. The CPSC’s Compliance Office is engaged in

regulation by enforcement, through bullying .... 6

III. Pre-enforcement review of the CPSC’s Notices of

Non-Compliance is warranted. ............................ 8

IV. The Court should allow pre-enforcement review

of the CPSC’s subjective, unreliable “poofbang”/“ear” test ................................................... 12

CONCLUSION ............................................................ 17

iii

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967) ................................. 9, 10, 11, 12

Bennett v. Spear,

520 U.S. 154 (1997) ........................................... 10, 11

Columbia Broadcasting System v. United States,

316 U.S. 407 (1942) ................................................... 9

Daubert v. Merrell Dow Pharmaceuticals,

509 U.S. 579 (1993) ................................................. 15

Free Enterprise Fund v. PCAOB,

561 U.S. 477 (2010) ................................................... 5

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010)........................................................ 9

Nastri v. Dykes,

No. 23-1023, 2024 WL 1338778

(2d Cir. Mar. 29, 2024) .............................................. 9

Sackett v. EPA,

566 U.S. 120 (2012) ........................................... 10, 11

Shelton v. Consumer Prods. Safety Comm’n,

277 F.3d 998 (8th Cir. 2002) ................................... 12

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ................................................. 16

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ................................................... 9

U.S. Army Corps of Engineers v. Hawkes Co.,

578 U.S. 590 (2016) ....................................... 5, 11, 12

iv

United States v. Shelton Wholesale, Inc.,

34 F. Supp. 2d 1147 (W.D. Mo. 1999) .................... 12

Whitmore v. Arkansas,

495 U.S. 149 (1990) ................................................... 8

Other Authorities

About Jake’s Fireworks, Jake’s Fireworks .................. 3

Ann Marie Buerkle, Statement from Acting

Chairman Buerkle on the Commission Vote on

Fireworks Amendments, U.S. Consumer Prod.

Safety Comm’n (Sept. 24, 2019) ............................. 16

Audible Effects Regulation, 35 Fed. Reg. 7415

(May 13, 1970).......................................................... 13

Briefing Memorandum from George A. Borlase,

Assistant Executive Director, Office of Hazard

Identification and Reduction et al, to U.S.

Consumer Prod. Safety Comm’n (Sept. 26,

2018) ......................................................................... 13

Chris Brummer et al., Regulation by

Enforcement, 96 So. Cal. L. Rev. 1297 (2024) ... 6, 17

Douglas Adams, The Hitchhikers Guide to the

Galaxy (1979) ........................................................... 14

Dr. Seuss, Horton Hatches the Egg (1940).................. 5

Elena Kagan, Presidential Administration, 114

Harv. L. Rev. 2245 (2001) ....................................... 14

Lars Noah, Administrative Arm-Twisting in the

Shadow of Congressional Delegations of

Authority, 1997 Wis. L. Rev. 873 (1997) .............. 6, 7

v

National Fireworks Association, Comment

Letter on Proposed Rule on Production of

Audible Effects Within the Meaning of the

Commission’s Fireworks Regulations Under

the Federal Hazardous Substances Act

(Oct. 4, 2016) ............................................................ 16

Peter Chan & A. Valerie Mirko,

Recommendations to the SEC to Modify its

Procedural Framework to PREVENT

REGULATION BY ENFORCEMENT

(Financial Services Institute, 2024) ......................... 6

Stephen Hylas, Final Agency Action in the

Administrative Procedure Act, 92 N.Y.U. L.

Rev. 1644 (2017) ...................................................... 11

U.S. Consumer Prod. Safety Comm’n, Consumer

Fireworks Testing Manual (4th ed. 2006) ............. 14

1

INTEREST OF AMICI CURIAE 1

The Buckeye Institute was founded in 1989 as an

independent research and educational institution—a

think tank—to formulate and promote free-market

policy in the states. The Buckeye Institute

accomplishes its mission by performing timely and

reliable research on key issues, compiling and

synthesizing data, formulating free-market policies,

and

marketing

those

policy

solutions

for

implementation in Ohio and replication across the

country. The Buckeye Institute works to restrain

governmental overreach at all levels of government.

The Buckeye Institute files lawsuits and submits

amicus briefs to fulfill that purpose. The Buckeye

Institute is a nonpartisan, nonprofit, tax-exempt

organization, as defined by I.R.C. section 501(c)(3).

The Manhattan Institute for Policy Research

(“MI”) is a nonpartisan public policy research

foundation whose mission is to develop and

disseminate new ideas that foster greater economic

choice and individual responsibility. To that end, MI

has historically sponsored scholarship and filed briefs

opposing government overreach.

Amicus curiae

Americans for Prosperity

Foundation (AFPF) is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society. Some

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amici curiae made any monetary contribution toward

the preparation or submission of this brief. Counsel timely

provided the notice required by Rule 37.2.

2

of those key ideas include the separation of powers and

constitutionally limited government. As part of this

mission, it appears as amicus curiae before federal and

state courts. AFPF believes due process and basic

fairness require that businesses like Jake’s Fireworks

have a safe pathway to obtain meaningful preenforcement judicial review of the government’s

enforcement decisions without being forced to risk

severe civil and criminal penalties.

The National Federation of Independent Business

Small Business Legal Center, Inc. (NFIB Legal

Center) is a nonprofit, public interest law firm

established to provide legal resources and be the voice

for small businesses in the nation’s courts through

representation on issues of public interest affecting

small businesses. It is an affiliate of the National

Federation of Independent Business, Inc. (NFIB),

which is the nation’s leading small business

association. NFIB’s mission is to promote and protect

the right of its members to own, operate, and grow

their businesses. NFIB represents, in Washington,

D.C., and all 50 state capitals, the interests of its

members.

SUMMARY OF ARGUMENT

This case presents the Court with another

opportunity to balance the scales of justice by giving

regulated parties timely access to judicial review of

agency threats of enforcement. The Consumer Product

Safety Commission (“CPSC”) demanded that Jake’s

Fireworks must destroy certain of its fireworks

inventory because they allegedly violate the CPSC’s

spurious “poof-bang” or “ear” test, a test that is

incapable of scientific application. The Fourth Circuit,

3

though, has left Jake’s Fireworks with a Hobson’s

choice: It can follow the CPSC’s instructions and

destroy its product or risk the imposition of severe civil

and criminal sanctions. The CSPC is effectively

regulating through enforcement—indeed through

bullying. That is an evasion of the Administrative

Procedure Act’s directive to regulate via notice and

comment. Indeed, in this case, the CPSC utilized this

enforcement

tactic

even

after

numerous

commentators and industry objectors challenged the

highly subjective “poof-bang” test. When the

government threatens civil and criminal penalties, the

regulated party is entitled to its day in court when the

basis for the prosecution is an invalid law or

regulation. This case is ripe for pre-enforcement

review consistent with this Court’s jurisprudence.

ARGUMENT

I. Regulated parties are entitled to rely on

governmental threats of enforcement.

Grandpa and Grandma2 were enjoying a quiet

evening at home when someone began banging on

their front door and threatening to break it down and

“get” them. Concerned, Grandpa called 911, where the

call went like this:

2 Jake’s

Fireworks was started over 75 years ago by “Grandpa

Johnny and Grandma Marietta” when they “sold fireworks from

the back of their house.” About Jake’s Fireworks, Jake’s Fireworks,

https://www.jakesfireworks.com/about (last visited Jan. 24, 2025).

4

911 Operator: “911, what’s your emergency?”

Grandpa: “There is someone outside my door

banging on it and telling me he is going to get me.

Can you send the police?”

911 Operator: “Has he broken in yet?”

Grandpa: “No, but he is trying. He is pounding, and

he says he is going to “take my money and give me

what I deserve.”

911 Operator: “Well, we don’t know if he means it.

Maybe he is just threatening to break in but

doesn’t really mean it. How can you be sure?”

Grandpa: “He is trying to smash the door down.

Send someone! I’m afraid.”

911 Operator: “Sir, we do not send the police just

because someone is pounding on your door and

threatening to break in. Call us if he follows

through on his threat and breaks in.”

Grandpa: “By then it will be too late.”

911 Operator: “I am afraid you called us too soon.

Have a nice day.”

The CPSC is not threatening bodily harm, but it

demanded that Jake’s Fireworks forgo selling its

fireworks and destroy them or face drastic fines and

penalties. The CPSC argues that Grandpa and

Grandma called upon the court too soon. They should

have waited until the CPSC imposed those fines and

5

penalties before asking the courts to get involved. But

by then, it will be too late. That is not the way the law

should work.

When the CPSC speaks—threatens—people listen.

And people expect that the CPSC officials mean what

they say. As children, we learn to expect that clarity

and truthfulness. Horton explained, “I meant what I

said and I said what I meant. . . . An elephant’s

faithful one hundred percent.” Dr. Seuss, Horton

Hatches the Egg 16 (1940). The Fourth Circuit’s ruling

suggests that the CPSC is not faithful “one hundred

percent,” rather the agency must act in order for its

“blustering” to be challenged. The Fourth Circuit

wants Jake’s Fireworks to gamble its business on the

possibility that the CPSC might be bluffing. Cf. Free

Enterprise Fund v. PCAOB, 561 U.S. 477, 490 (2010)

(noting that plaintiffs ordinarily do not have to “bet

the farm” to challenge a law); U.S. Army Corps of

Engineers v. Hawkes Co., 578 U.S. 590, 600 (2016)

(noting that plaintiffs need not wait for an agency to

“drop the hammer”).

The CPSC’s Compliance Office has engaged in

regulation by bullying, which is a subset of regulation

by enforcement. The CPSC’s decisionmaking has

significant administrative ramifications. This Court

has repeatedly held that pre-enforcement challenges

to threatened agency action can proceed. This Court’s

recognition of pre-enforcement challenges shows how

cramped the Fourth Circuit’s ruling is.

6

II. The CPSC’s Compliance Office is engaged in

regulation by enforcement, through bullying.

An agency engages in regulation by enforcement

when it “use[s] its enforcement powers to establish de

facto rules without due process, fair notice, and

consideration of public comments reflecting industry

practice.” Peter Chan & A. Valerie Mirko,

Recommendations to the SEC to Modify its Procedural

Framework to PREVENT REGULATION BY

ENFORCEMENT 2 (Financial Services Institute,

2024).3 By engaging in regulation by enforcement, an

agency “improperly circumvents the statutory

requirements for agency rulemaking, violates the

rights of those the agency regulates, and frustrates

productive approaches to best protect” the regulated

community and the public.” Id. In addition, an

agency’s pursuit of regulation by enforcement can

“extend[ ] an agency’s authority in ways that might

otherwise be impermissible, politically costly or even

illegal.” Chris Brummer et al., Regulation by

Enforcement, 96 So. Cal. L. Rev. 1297, 1300 (2024).

The threat of regulation by bullying, or as one

commentator calls it, agency “arm-twisting,” Lars

Noah, Administrative Arm-Twisting in the Shadow of

Congressional Delegations of Authority, 1997 Wis. L.

Rev. 873 (1997), can sometimes be enough to force

compliance with a directive that has not been

approved or vetted via notice and comment. Noah

explains that agency arm-twisting “refers to a threat

by an agency to impose a sanction or withhold a

3 https://tinyurl.com/ycx77p89.

7

benefit in hopes of encouraging ‘voluntary’ compliance

with a request.” Id. at 874.

The CPSC’s Compliance Office’s Notices of NonCompliance directed to Jake’s Fireworks are hardly

ambiguous. As the Fourth Circuit acknowledged,

those notices “though worded slightly differently,” told

Jake’s Fireworks that some of its fireworks were

banned hazardous substances. Pet. App. at 4a. The

Notices stated that “the staff requests that the

distribution of the sampled lots not take place and

that the existing inventory be destroyed.” Id. They

went on to “set forth a procedure for documenting the

destruction of the fireworks if Jake’s fireworks ‘chose

to destroy the goods’ in question, and provided a 90day deadline by which to do so.” Pet. App. at 5a; see

also Pet. at 7–8 (“[T]he September 2018 Notice

ordered, in bold, ‘The sampled lots must be

destroyed within 90 days of the date of this

letter unless an extension of time is requested

and approved by the [Compliance Office.]’”) (bold

and brackets in original).

The consequences for non-compliance with the

Compliance Office’s “request” were also spelled out.

The civil penalties could go as high as $110,000 per

violation, or up to $16.25 million for a “related series

of violations.” Pet. at 7. In addition, imprisonment for

up to five years is a potential criminal penalty. Id. If

that were not enough, the CPSC warned Jake’s

Fireworks that “further action” might follow,

“including reasonably anticipated litigation.” Id.

The CPSC further rebuffed Jake’s Fireworks’

efforts to contest the Notices. Jake’s Fireworks’

written communication of its position was rejected.

8

Pet. at 8. A meeting with the Director of the

Compliance Office “got nowhere” because “Jake’s was

informed that staff intended to enforce the regulation,

as articulated in the Notices, and that there was no

further decisionmaking process on these issues.” Pet.

at 9 (emphasis added).

The CPSC’s action represents regulation by

enforcement for two reasons. First, the CPSC

demands compliance within 90 days of the date of its

September 2018 Notice and other letters. Pet. at 7–8.

That short time for compliance combined with the

CPSC’s refusal to reconsider its position leaves Jake’s

Fireworks “in limbo.” Pet. at 11. Second, as discussed

below, the CPSC’s reliance on a “poof-bang” test lacks

a regulatory basis and scientific rigor. In short, the

CPSC put its marker down, daring Jake’s Fireworks

not to comply. Jake’s Fireworks can either

“voluntarily” comply with the CPSC’s edict or risk the

consequences.

III. Pre-enforcement review of the CPSC’s

Notices of Non-Compliance is warranted.

This case presents the Court with an opportunity

to refine and reinforce its standards for awarding preenforcement review. This Court has granted preenforcement relief in cases involving both statutory

and regulatory challenges. The Court has long

recognized that parties threatened with enforcement

of a challenged statute have standing as long as “the

alleged harm [is] actual or imminent.” Whitmore v.

Arkansas, 495 U.S. 149, 155 (1990). In 2014, the Court

held that a pre-enforcement challenge to an Ohio

statute proscribing “false statement[s]” during an

election was justiciable. Susan B. Anthony List v.

9

Driehaus, 573 U.S. 149 (2014). It noted that when

someone is threatened with the enforcement of a law,

“an actual arrest, prosecution, or other enforcement

action is not a prerequisite to challenging the law.” Id.

at 158. The threat of enforcement need only be

“sufficiently imminent.” Id. at 159. In the same way, a

speaker, facing a “credible threat” of enforcement was

not “required to wait and undergo a criminal

prosecution as the sole means of seeking relief.” Id. at

161 (quoting Holder v. Humanitarian Law Project, 561

U.S. 1, 15 (2010)). See also Nastri v. Dykes, No. 231023, 2024 WL 1338778 (2d Cir. Mar. 29, 2024)

(finding that “the credible threat of prosecution is a

quite forgiving requirement that sets up only a low

threshold for a plaintiff to surmount” (citation and

quotation marks omitted)).

The same holds true for agency action. In 1967,

Justice Harlan, writing for the Court, noted, “The

cases dealing with judicial review of administrative

actions have interpreted the ‘finality’ element in a

pragmatic way.” Abbott Laboratories v. Gardner, 387

U.S. 136, 149 (1967). He drew on Columbia

Broadcasting System v. United States, 316 U.S. 407

(1942), in which the Court held that an FCC

regulation dealing with contractual arrangements

between broadcasters and local stations could be

reviewed even though “no license had in fact been

denied or revoked.” Abbott Laboratories, 387 U.S. at

150. The Columbia Broadcasting Court declared that

the regulations “have the force of law before their

sanctions are invoked as well as after.” 316 U.S. at

418–19. Justice Harlan also pointed to two other

decisions that took “a similarly flexible view of

finality.” Abbott Laboratories, 387 U.S. at 150. Finally,

10

he observed that the “impact of the regulations upon

the petitioners is sufficiently direct and immediate as

to render the issue appropriate for judicial review at

this stage.” Id. at 152.

More generally, Abbott Laboratories sets out a twopart test for determining whether a challenge to an

agency action is ripe. First, the court considers “the

fitness of the issues for judicial decision.” Id. at 149.

Then, it considers the “hardship to the parties of

withholding court consideration.” Id.

In Bennett v. Spear, 520 U.S. 154 (1997), the Court

unanimously held that a biological opinion issued by

the Fish and Wildlife Service that limited the use of

water by landowners and others could be judicially

reviewed. It identified “two conditions” for

determining the finality of an agency action. “First,

the action must mark the ‘consummation’ of the

agency’s decisionmaking process—it must not be of a

merely tentative or interlocutory nature.” Id. at 177–

78 (citation omitted). “[S]econd, the action must be one

from which ‘rights or obligations have been

determined,’ or from which ‘legal consequences will

flow.’” Id (citation omitted). The Court concluded that

the biological opinion “alter[ed] the legal regime.” Id.

at 178.

Then, in Sackett v. EPA, 566 U.S. 120 (2012), the

Court held that a property owner could challenge a

compliance order issued by the EPA. It deemed the

compliance order to be final because that order

“determined” “rights or obligations” and “legal

consequences . . . flow” from it. Id. at 126 (quoting

Bennett, 520 U.S. at 178). The possibility of an

informal discussion with the EPA did not undercut the

11

finality of the agency action. As the Court explained,

“The mere possibility that an agency might reconsider

in light of ‘informal discussion’ and invited contentions

of inaccuracy does not suffice to make an otherwise

final agency action nonfinal.” Id. at 127.

Similarly, the Court held that the U.S. Army Corps

of Engineers’ jurisdictional determination was a

judicially reviewable final agency action. Hawkes Co.,

578 U.S. 590. It said that the issuance of the judicial

determination meant that “the Corps for all practical

purposes ‘has ruled definitively’ that respondents’

property contains jurisdictional waters.” Id. at 598

(citation omitted). The determination also led to

“direct and appreciable legal consequences.” Id.

(quoting Bennett, 520 U.S. at 178). Finally, the Court

observed that its “conclusion tracks the ‘pragmatic’

approach we have long taken to finality.” Id. at 599

(quoting Abbott, 387 U.S. at 149).

Jake’s Fireworks is entitled to pre-enforcement

review of the CPSC’s claims of non-compliance. The

CPSC’s Notices declare that certain fireworks are

hazardous and must be destroyed or legal

consequences will follow. Any coyness on the part of

the CPSC in its phrasing reflects the fact that it, like

other agencies, has “learned what language to use to

avoid satisfying the two prongs of the Bennett test.”

Stephen Hylas, Final Agency Action in the

Administrative Procedure Act, 92 N.Y.U. L. Rev. 1644,

1666 (2017). That coyness pales in the light of the

CPSC’s refusals to consider Jake’s Fireworks’ views.

The CPSC’s intent to enforce its Notices is credible.

This Court has “long held [that] parties need not

await enforcement proceedings before challenging

12

final agency action where such proceedings carry the

risk of ‘serious criminal and civil penalties.’” Hawkes

Co., 578 U.S. at 600 (quoting Abbott 387 U.S. at 153).

Jake’s Fireworks cannot proceed without incurring

“the risk of serious criminal and civil penalties.” The

Fourth Circuit’s inflexible and unpragmatic reading of

the finality requirement leaves Jake’s Fireworks

adrift.

IV. The Court should allow pre-enforcement

review of the CPSC’s subjective, unreliable

“poof-bang”/“ear” test.

The CPSC’s reliance on a “poof-bang” test for

evaluating whether Jake’s Fireworks are too loud is

the epitome of arbitrary and capricious. It is

inconsistent with the regulation the CPSC invokes to

support its Notices. Furthermore, it is incapable of

consistent and reliable application.

The CPSC’s expert first described the “poof-bang”

test, also called the “ear” or “audible effects” test, by

noting that “the CPSC determines whether a device is

intended to produce an audible effect by firing the

device and determining”—according to an anonymous

bureaucrat’s personal observation—“whether it goes

‘pop’ or ‘poof ’ when the visual effect (generally stars) is

seen or ‘boom’ or ‘bang’ when the visual effect occurs.”

United States v. Shelton Wholesale, Inc., 34 F. Supp.

2d 1147, 1158 (W.D. Mo. 1999), aff’d sub nom. Shelton

v. Consumer Prods. Safety Comm’n, 277 F.3d 998 (8th

Cir. 2002). The CPSC’s staff later explained:

To determine “intent to produce an

audible effect,” CPSC staff listens to the

device during field testing, and based on

13

the sound, determines whether the

applicable “loud report” was detected. If

staff hears a “loud report,” staff considers

the fireworks device “intended to produce

an audible effect,” in which case, the

burst charge (which causes the audible

effect) is limited to 2 grains (130 mg). To

be clear, staff does not listen for sound

level produced by a device but for a

certain type of sound. Specifically, staff

listens for a crisp, sharp sound profile

that is related to the pressure pulse

associated with the ignition of a

pyrotechnic material.

Briefing Memorandum from George A. Borlase,

Assistant Executive Director, Office of Hazard

Identification and Reduction et al, to U.S. Consumer

Prod. Safety Comm’n (Sept. 26, 2018) at 12.4

In the preamble of the Audible Effects Regulation,

35 Fed. Reg. 7415 (May 13, 1970), the CPSC’s

predecessor agency 5 noted that the “intention [of the

regulation was] not to ban so-called ‘Class C’ common

fireworks, but only those designed to produce audible

effects caused by a charge of more than 2 grains of

pyrotechnic composition.” To the extent that caveat

was designed to reassure sellers of Class C fireworks,

it might well have convinced interested sellers that

they did not need to submit a comment. In any event,

there is no regulatory basis for the CPSC to use the

4 https://tinyurl.com/cz2s7upw.

5 The CPSC adopted the existing regulations without change. Pet.

at 5, n.2.

14

“poof-bang” test. The CPSC created the test—poof—

out of thin air. But the CPSC’s Consumer Fireworks

Testing Manual does not authorize, explain, or even

mention the “poof-bang” test, the “ear” test, or the

“audible effects” test. See U.S. Consumer Prod. Safety

Comm’n, Consumer Fireworks Testing Manual (4th

ed. 2006).6 It is nearly as difficult to find the test on

any government website as the plans Arthur sought in

The Hitchhiker’s Guide to the Galaxy.7

As then-Professor Kagan wrote, “Bureaucracy is

the ultimate black box of government—the place

where exercises of coercive power are most

unfathomable and most threatening.” Elena Kagan,

Presidential Administration, 114 Harv. L. Rev. 2245,

2332 (2001). She explained, “To a great extent, this

will always be so: the bureaucratic form—in its

proportions, its reach, and its distance—is impervious

to full public understanding, much less control.” Id.

The “black box of government” hides the identity

and qualifications of the governmental “experts” who

make the regulatory decisions. Not only their identity,

but also their training, qualifications, knowledge,

biases, and even methodologies remain hidden. Even

if the existence of the “poof-bang” theory is disclosed,

those responsible for applying it remain hidden in the

bowels of the “black box of government.”

6 https://www.cpsc.gov/s3fs-public/pdfs/blk_pdf_testfireworks.pdf.

7 Arthur eventually found the plans which were “on display in the

bottom of a locked filing cabinet stuck in a disused lavatory with a

sign on the door saying ‘Beware of the Leopard.’” Douglas Adams,

The Hitchhikers Guide to the Galaxy 9–10 (1979).

15

The “poof-bang” test is a “black box” test that is

incapable of principled and consistent application.

This Court has addressed the issue of scientific

methodology. Following these directives, the “poofbang” test should be subject to the need to show that

its results are not just “relevant, but reliable.” Daubert

v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 590

(1993). The Court explained, “The adjective ‘scientific’

[in Federal Rule of Evidence 702] implies a grounding

in the methods and procedures of science.” Id.

“Proposed testimony must be supported by

appropriate validation—i.e., ‘good grounds,’ based on

what is known. Id. “[A] key question” regarding a

theory or technique is “whether it can be (and has been

tested).” Id. at 593. “Another pertinent consideration

is whether the theory or techniques has been subjected

to peer review and publication.” Id. A court

considering the proffer of scientific evidence should

also consider “the known or potential rate of error.” Id.

at 594. A final consideration is “widespread” or

“general” acceptance such that “a known technique

that has been able to attract only minimal support

within the community may properly be regarded with

skepticism.” Id. (citation omitted).

The “poof-bang” theory would not pass the Daubert

test. The CPSC does not use any scientific instruments

to conduct this test. Scientific instruments provide an

objective and reproducible methodology. For example,

a properly calibrated measuring device that measures

the decibel level at a specific distance from the

explosive device and under controlled circumstances,

e.g. indoors or outdoors, windy or calm atmospherics,

and specific humidity levels. The subjective

determination of a faceless bureaucrat that Jake’s

16

Fireworks is violating federal law and is subject to

huge fines and criminal prosecution is not scientific.

The National Fireworks Association pointed out that

the CPSC “has on numerous occasions made

conflicting determinations about the exact same

device” in using the “poof-bang” test. National

Fireworks Association, Comment Letter on Proposed

Rule on Production of Audible Effects Within the

Meaning of the Commission’s Fireworks Regulations

Under the Federal Hazardous Substances Act (Oct. 4,

2016).8 Acting Chairman Buerkle recognized this

problem, stating that although “the staff [of the

commission] has worked for years to replace [the ear

test] with a more objective standard,” “the effect of

today’s vote is to leave the oft-criticized ear test in

place for now.” Ann Marie Buerkle, Statement from

Acting Chairman Buerkle on the Commission Vote on

Fireworks Amendments, U.S. Consumer Prod. Safety

Comm’n (Sept. 24, 2019).9 Amici are unaware of any

testing that would support the “poof—bang” or “ear”

test’s validity or any supporting peer review or

publication. It is applied nowhere outside the confines

of CPSC’s lair. Cf. Skidmore v. Swift & Co., 323 U.S.

134, 140 (1944) (The weight to be given to the

judgment of an agency “will depend on the

thoroughness evident in its consideration, the validity

of its reasoning, its consistency with earlier and later

pronouncements, and all those factors that give it

power to persuade”). Here the CPSC’s testing is not

entitled to any weight. The CPSC has ignored public

comments

and

has

“leveraged

enforcement

8 https://www.regulations.gov/document/CPSC-2016-0020-0001.

9 https://tinyurl.com/3ftjdpns.

17

proceedings to make policy after abandoning a failed

notice-and-comment process.” Brummer et al., supra,

at 1313. This case epitomizes the need for preenforcement review of regulations when an agency

threatens enforcement.

CONCLUSION

The CSPC’s threats are akin to “your money or

your life,” differing only in degree. The sale of

fireworks is Grandpa’s and Grandma’s life. People are

entitled to intervention and protection when

threatened, whether by an intruder banging on their

door or the CPSC demanding destruction of their

business’ inventory or sending them to jail.

The Court should grant the petition and, on review,

reverse the decision of the Fourth Circuit Court of

Appeals.

Respectfully submitted,

David C. Tryon

Counsel of Record

Alex M. Certo

The Buckeye Institute

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

Counsel for The Buckeye Institute

*Counsel continued on the next page

18

John J. Park, Jr.

P.O. Box 3073

Gainesville, GA 30503

(678) 608-1920

JackParklaw@gmail.com

Counsel for The Buckeye Institute

Ilya Shapiro

Tim Rosenberger

Manhattan Institute

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute

Counsel for Manhattan Institute

Michael Pepson

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Americans for Prosperity Foundation

Elizabeth Gaudio Milito

Patrick J. Moran

NFIB SMALL BUSINESS LEGAL CENTER, INC.

555 12th Street, NW Ste. 1001

Washington, DC 20004

(202) 406-4443

elizabeth.milito@nfib.org

patrick.moran@nfib.org

Counsel for Amicus NFIB Small Business Legal Center,

Inc.