Consumer Federation of America v. Consumer Product Safety Commission

D.H. GINSBURG, Circuit Judge,

concurring:

I fully concur with the court’s excellent opinion — to the extent that it decides the issues actually before us today. Unfortunately, however, the court appends a paragraph at the end of its opinion (Op. at 37-38) in order to address a matter that even it acknowledges is “[peripheral” (Op. at 38) and in fact formed no part of the Commission decision under review. Cf. SEC v. Chenery, 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (“a simple but fundamental rule of administrative law ... is ... that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency”). Therefore, the court’s “wide-ranging remarks are not only dictum, but obiter.” Scott v. United States, 419 F.2d 264, 282 (D.C.Cir.1969) (Leventhal, J., concurring).

When a court makes such a casual remark, it is all too likely to get things not quite right. Today’s outing illustrates the point.

*39The court ventures to “anticipate that, ultimately, the Commission will not rely upon the ATV-riding preferences of youths in deciding whether adult-size ATVs subject children to ‘unreasonable risks.’ ” The reason: “children’s evident limitations in judging the risks of attractive, yet hazardous products.” Op. at 38. The purpose of a youth ban would be, of course, to prevent ATV-riding by children who would otherwise be riding them under the consent decree regime. One of the costs of such a ban is self-evidently the loss of enjoyment experienced by the children who are thereby prevented from riding, and the Commission must take that cost into account if it is to do a sensible cost-benefit analysis. See Consumer Product Safety Act, 15 U.S.C. §§ 2058(c)(1), 2058(f)(2) (when proposing or promulgating consumer safety product rule CPSC must provide, respectively, a preliminary and final “description of the potential benefits and potential costs” of the proposed rule, “including costs and benefits that- cannot be quantified in monetary terms”); cf. Edith Stokey & Richard Zeckhauser, A Primer for Policy Analysis 134 (1978) (a • cost-benefit analysis “requires systematic enumeration of all benefits and all costs, tangible and intangible, whether readily quantifiable or difficult to measure, that will accrue to all members of society if a particular project is adopted”) (emphases added). To be sure, that cost may be outweighed by the safety benefits of keeping those children off ATVs. The Commission, however, has not yet addressed in the first instance the question whose answer the court today “anticipate[s],” and it is both premature and presumptuous for the court to assume that children ride ATVs only because they are less able than adults to assess the risks involved. (In fact, since an ATV costs about $3000, there is almost surely an adult purchaser behind every presumably risk-insensitive child rider, and it will be for that parent to assess the risk that an ATV poses to her child.)

In sum, the court both invades the province of those charged in statute law with conducting a cost-benefit analysis, see CPSA, 15 U.S.C. §§ 2058(c)(1), 2058(f)(2), and risks creating analytic bedlam when it departs from its judicial role in order to “anticipate” an issue not now before it. Better to leave to the Commission those responsibilities that the Congress has vested in the Commission and to end our opinions when we have decided all of the issues necessary to the resolution of the dispute before us.