and assuming that you can hear me i will begins your honor it's well established that the same decision maker they participate in multiple proceedings on the same subject and the fact that a decision maker has reached a conclusion in one proceeding and even stated that conclusion in strong terms does not render the decision maker constitutionally barred from proceeding in the  proceeding even if just just like an proceeding involves the same or similar issue and that's all that happens here plaintiffs point to statements that were part of the agency's official rule making proceedings statements after hearing were commissioners voted in favor of the rule or their written versions of those statements posted on their website in which the commissioners explained their reading their reasoning for voting in favor of the rule and the the those statements mirrored the agency's official explanation so the rule that was published in the federal register the plaintiff also point to a statement in a department of justice press release about us constitutional constitutional violations by participating in seconds in the nd proceeding the fact that there may be some similarity or overlapping subject matter properly as part of one proceeding in order to educate a nd proceeding and on this point your honor i would invite the court if it has it to review the  review the adjudication that warm almost fifty pages in our joint appendix where the commission reviewed and dependently the evidence and the legal arguments involved in the adjudication jurisdiction with respect to thens cross appeal with respect to the rule fifty nine dollars each challenge to the st nineteen pages of the district court's ruling as an there was a lot of discussion of fear about the commissioner's own children and putting them to bed and i mean does that show inappropriate that doesn't sound like something that one would say in support constitutional rule that would bar the commission from performing its statutory duty than here on i'm quoting from the united states versus morgan in the supreme court an unlighted there the the district court judge was for a rule that you can you're going to set aside the dupe preconceptions to rule fairly in the nd proceeding but i'm wondering what if the commissioner just flat out says i cannot be fair to this party or this company because of what i see here today i mean they just come out and say i cannot be fair and that's the st part of my question and how did that not happen in this case your honor if a technician i were to say i simply cannot be fair i can't and i'm blinded by something then that would overcome the presumption of course that the agency is you to cater to less than a judge could put those those facts aside that's not at all what happened here and in fact commissioner adler said as much he said i am  resulting issues related to the rule making and the adoption of an industry wide standard for how these products can be manufactured been distributed safely and that is those involved separate questions from the adjudication of whether any individual products on the circumstances extant in the market can remain can remain on the market safely or whether they constitute a substantial product hazards that must be remedied  a presumption and and an individual commissioner who would not be fair would and has stated as such would could not of course be presumed to be to be fair but that's entirely different from what happened here do you think that that's required that's flat out statement that i cannot be fair because i'm wondering how when you look at the statements there indicating some feelings about the matter right and then they go on to say but i can be fair so i guess i'm just trying to press you do that say i can't be fair you know your honor that is not the case and leads in the in the case law and in th circuit and in the cinderella case where the the official has has and now that they have prejudged pre committed to an outcome in a pending proceeding those are the circumstances in which it is apparent that there is prejudgment but nothing of the sort happened here instead what happened was there were issues that came before the commission as part of the rule making in which the commissioners had to and probably my fault but once you said that you were through and then i turned to my colleague to ask additional questions kevin did i'm hoping to get her to stop it was my fault but i'm hoping that her time approximating that we spend about five minutes of asking her questions through no fault of hers once she said that she was through ok so should i ring the bell twice at any point are there other circumstances the side the precise statement that issue in the st cinderella case in which the statements would violate due process clause and i think the answer is the courts needn't resolve the precise parameters of that because what was it at issue in those cases were statements about the outcome of a pending adjudication committing the agency decision maker to an outcome and we have nothing of the sort here here we have very standard agency rulemaking proceedings  which the the agency official explains their vote in favor of all making and the reasons for it and a subsequent adjudication that that may have involved related issues but it this is a hypothetical but it is predicated on something that historically did happen and that is obviously we did have an appeal on that bag a challenge to the rule  serve as a basis for for recusal in a later case but turning to the merits of the statement here the the the statement of judge k quoted in the d o j explain his vote in favor of the will and the this statement for were later posted on on the website they go on about the statement for one night as part of the practical matter to suggest as many paintings have that extra judicial source is the only basis for stablish in disqualifying bias and prejudice is the only common basis and not the exclusive on two feet is of their job in five and a half years since i filed the st motion in this case pointing out to the commissioners in essence i think they should proceed with some cautio from the beginning i will try to address justice judge bacharach's about maybe i'm projecting on just cracks hypothetical in this was when i argued before the commission back in june of two thousand and seventeen before they issued their final order in the case i was under no illusion what would happen before i started out that mor because i knew from the beginning what their positions were and i knew that there was no way i didn't write anything in a brief or argue anything before them and i had some pretty heated argument and followed up by judge i regarding the personal statements by how they were protected not just americans which may be part of the task of consumer product safety commission but their own their very own children now we're into asked the question is it possible that the average person looking at this could expect a fair hearing on appeal i don't think the answer could be anything other than you know argument so it's more like a hearing and an argument frank with us we give an opening for a number of minutes that the commissioners each had ten minutes to have questions so so that's how it was done but the only question i had was why it took them so long to hear the final order is that you have going to go on our disagreement with jackson is that he only excluded commissioner adler that's basically you know i'm standing on the belief that point but i believe that the commissioners conduct here does cross the line is a whole they were essentially warned if you kept on going anyway making process but i think that what we just heard from opposing counsel is that the press releases merely reiterated statements that were made during the rule making process that were otherwise public so my question to you is where it's a press release but that it's simply repeating what is already been said in the hearing does that affect your analysis of whether it's somehow objectionable well it doesn't affect my analysis because if they are basically congratulating themselves after a hearing that isn't out of court statement i mean it's extra judicial the fact that it might have called it in part i think if the court takes the time to look at the statements made are not related to or not supported by the record per se based on personal feelings and that's in that same goes for when commissioner pay if she's a press release or is quoted by the press commenting on judge art weight was order in opinion in an unrelated matter relating to them and when he knows that he could be called either way regardless of the appeal it's  they should not be done and it evidences and irrevocably clo mon as to the what the evidence will be in the future well i mean i think if you look at the commissioner and it's pretty clear that it's not disqualifying to have participated in a rule making to then participate in a due to cation on a subject matter statute to look at here that's why his language licky i believe is so informant because when he was that states to resolve the statute four hundred and fifty five is what you will statute that's not what we're dealing with here we're dealing with well let me turn to commissioner adler in in the statements that you object her to the commissioner states explicitly that he he says he's passing judgment on whether the maggots pregnant present a substantial product hazards but he can't comment on the taste that he has not yet seen it's not yet before him and then he seems to be very clearly separating the rulemaking stopped there that's the problem say it is probably because you are the same judge in the st place and if it were a legal issue that we're discussing i would have every right to judge again on the response and the difference between that in the situation and magnets is that they had already decided i'd virtue of their comments district court in the commission participating and in adjudication and certainly this court and the supreme court have said that repeatedly but then one that has focused in particular on  strong statements made about matters in the course of rule making and of course the light e p case which that magnets invokes and the united states versus morgan has stated clearly that in the case of morgan  the fact that the secretary here early not merely held but expressed strong views on matters believed by him to have been an issue did not and that him for exercising his duty and subsequent proceedings and and there the secretary was commenting on federal court proceedings that had occurred not only not two but three different times and the supreme court held that the secretary  fairly adjudicate fairly reach a decision on green and the rd time and similarly and why the key not establishing bias or partiality or expressions of impatience dissatisfaction annoyance inappropriate with respect to the adjudication the court has any further questions be happy to entertain those judge