PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________________

ZEN MAGNETS, LLC, 

 Plaintiff - Appellee/CrossAppellant, 

v.

CONSUMER PRODUCT SAFETY 

COMMISSION, 

 Defendant - Appellant/CrossAppellee.

Nos. 19-1168, 19-1186

_________________________________________ 

Appeal from the United States District Court 

for the District of Colorado

(D.C. No. 1:17-CV-02645-RBJ)

_________________________________________ 

David C. Japha, Levin Jacobson Japha, PC, Denver, Colorado (Evan House

with him on the briefs), for Plaintiff-Appellee/Cross-Appellant. 

Jaynie Lilley, Attorney, Appellate Staff, United States Department of 

Justice, Civil Division, Washington, DC (Joseph H. Hunt, Assistant 

Attorney General; Jason R. Dunn, United States Attorney; Daniel Tenny 

and Patrick G. Nemeroff, Attorneys, Appellate Staff, on the briefs), for 

Defendant-Appellant/Cross-Appellee.

_________________________________________ 

Before BACHARACH, McHUGH, and EID, Circuit Judges.

_________________________________________ 

BACHARACH, Circuit Judge.

_________________________________________ 

FILED

United States Court of Appeals

Tenth Circuit

August 4, 2020

Christopher M. Wolpert

Clerk of Court
2 

The Consumer Product Safety Commission conducted two 

proceedings involving the making of small rare-earth magnets. The first 

proceeding consisted of a rulemaking affecting all manufacturers of these 

magnets. The second proceeding consisted of an adjudication affecting

only one manufacturer: Zen Magnets, LLC. For the adjudication, the 

Commission needed to provide Zen with a fair proceeding under the Fifth 

Amendment’s Due Process Clause. Withrow v. Larkin, 421 U.S. 35, 46–47 

(1975). 

Zen contends that the adjudication was unfair for two reasons: 

1. The Commissioners conducted the adjudication after engaging

in a rulemaking on closely related issues.

2. Three Commissioners participated in the adjudication after 

making public statements showing bias. 

The district court concluded that

• the Commission hadn’t denied due process by simultaneously 

conducting the adjudication after a related rulemaking, 

• two of the Commissioners (Kaye and Robinson) had not shown 

bias through their public statements, and

• one Commissioner (Adler) had shown bias through a public 

statement about Zen.

Both parties appeal. The Commission appeals the district court’s 

decision as to Commissioner Adler. Zen cross-appeals, arguing that

• three Commissioners had violated due process by prejudging

the issues and 
3 

• the district court had issued an advisory opinion on the merits.

Our jurisdiction extends to the parties’ contentions involving due 

process. For these contentions, we conclude that the Commissioners’ 

participation in the rulemaking and their statements did not result in a 

denial of due process. So we affirm the district court’s judgment as to

Commissioners Robinson and Kaye but reverse as to Commissioner Adler. 

We lack jurisdiction to decide whether the district court rendered an 

advisory opinion. 

I. The Commission conducts a rulemaking and a related 

adjudication. 

Zen’s small rare-earth magnets are shiny and smooth, resembling

candies that commonly garnish cookies and desserts. The appearance 

sometimes leads young children to put the magnets in their mouths. Older 

children also sometimes put the magnets in their mouths to magnetize 

braces or mimic facial piercings. When put in children’s mouths, the

magnets are sometimes swallowed, lodging in the digestive system and 

causing serious injury or death. 

The Consumer Product Safety Commission tried to address this

danger through both rulemaking and adjudication. Through rulemaking, the

Commission proposed a safety standard to either enlarge the magnets or 

weaken their magnetic strength. See Safety Standard for Magnet Sets, 77 

Fed. Reg. 53,781, 53,787–88 (Sept. 4, 2012); 15 U.S.C. §§ 2056(a), 2058 
4 

(2018). The Commission approved the final rule in a public hearing in 

September 2014. 1 At that hearing, three of the Commission’s members

(Adler, Kaye, and Robinson) made statements about the risk posed by the 

magnets, the impossibility of mitigating that risk, and Zen’s role as a

magnet distributor. 

Shortly after proposing the safety standard, the Commission initiated 

an adjudication by authorizing complaints against Zen and two other 

distributors of small rare-earth magnets. The complaints alleged that the 

magnets presented a “substantial product hazard.” See 15 U.S.C. § 2064(a)

(2018). The other two distributors entered into consent agreements with the 

Commission, leaving Zen as the only remaining distributor in the 

adjudication. 

In that adjudication, an administrative law judge found that 

• the magnets did not present a substantial product hazard when 

accompanied by appropriate warnings and age 

recommendations and 

• the previous warnings had been inadequate. 

Given these findings, the administrative law judge recalled the magnets 

that Zen had sold without adequate warnings or age recommendations. 

1

 Our court later vacated the rule and remanded to the agency after a 

challenge from Zen. See Zen Magnets, LLC v. CPSC, 841 F.3d 1141, 1144 

(10th Cir. 2016).
5 

Counsel for the agency appealed to the Consumer Product Safety 

Commission, and Zen sought recusal of Commissioners Adler, Robinson, 

and Kaye, arguing that they had improperly prejudged the adjudication 

based on

• the overlap between the issues in the rulemaking and 

adjudication and

• the Commissioners’ public statements. 

The Commissioners declined to recuse. Three years after passing the final 

magnet rule, the Commission decided that 

• the magnets presented a substantial product hazard because a 

defect created a substantial risk of public injury and

• no warnings could mitigate the risk of injury. 

Zen appealed to federal district court, renewing challenges to the

participation of Commissioners Adler, Robinson, and Kaye and arguing 

that the Commission’s decision was arbitrary and capricious under the 

Administrative Procedure Act. The district court ruled that (1) the decision 

was not arbitrary and capricious, (2) Commissioners Robinson and Kaye 

had not violated due process by participating in the adjudication after 

publicly remarking about Zen and its magnets, and (3) Commissioner Adler

had violated due process by participating in the adjudication after publicly 

remarking about Zen and its magnets. The district court thus invalidated 

the Commission’s final order. 
6 

After the district court issued its order, Zen filed a Rule 59(e) motion 

to alter or amend the judgment. In this motion, Zen asked the district court 

to vacate its conclusion that the Commission’s reasoning was not arbitrary 

and capricious, characterizing this conclusion as an impermissible advisory 

opinion. The district court rejected this request. 

II. We conduct de novo review.

Our review is de novo. N. M. Cattle Growers Ass’n v. U.S. Fish & 

Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir. 2001). The Commission’s 

opening brief cites the standard to review a summary-judgment ruling, and 

the parties refer to their briefs in district court as cross-motions for 

summary judgment. See First Br. at 17; Appellant’s App’x, vol. 2, at 398, 

419. But the summary-judgment standard doesn’t apply because the district 

court’s decision involved an administrative appeal. See Olenhouse v. 

Commodity Credit Corp., 42 F.3d 1560, 1579–80 (10th Cir. 1994) (stating 

that district courts reviewing agency actions should function like appellate 

courts and “motions for summary judgment are conceptually incompatible 

with the very nature and purpose of an appeal”). 

III. We have jurisdiction over the Commission’s appeal and part of 

Zen’s cross-appeal.

Every appellant bears the burden of proving appellate jurisdiction by 

demonstrating the finality of the challenged decision or identifying a 

specific grant of jurisdiction. EEOC v. PJ Utah, LLC, 822 F.3d 536, 542 
7 

n.7 (10th Cir. 2016); see 28 U.S.C. § 1291 (2018). An administrative

remand is not ordinarily considered a final decision. Western Energy All. v. 

Salazar, 709 F.3d 1040, 1047 (10th Cir. 2013). We thus generally lack 

jurisdiction over remands to administrative agencies. Id.

Both parties invoke the practical-finality exception for their appeals. 

We conclude that the exception applies to the Commission’s appeal as to 

the disqualification of Commissioner Adler, and we exercise pendent 

appellate jurisdiction over Zen’s cross-appeal as to the participation of 

Commissioners Kaye and Robinson. But we lack jurisdiction over Zen’s 

cross-appeal on the refusal to vacate the district court’s opinion as an 

advisory opinion. 

A. We have jurisdiction over the Commission’s appeal under 

the practical-finality exception. 

Though appellate jurisdiction requires finality, we construe the term 

“finality” based on practicality. Gillespie v. U.S. Steel Corp., 379 U.S. 

148, 152 (1964). With this lens of practicality, we sometimes regard a 

district court’s remand to an agency as “practically final.” Western Energy

All. v. Salazar, 709 F.3d 1040, 1049–50 (10th Cir. 2013). A district court’s 

remand is practically final when it is urgent that an issue be decided

because it is important, serious, and unsettled. Bender v. Clark, 744 F.2d 

1424, 1427 (10th Cir. 2013). 
8 

To decide whether a decision is practically final, we ask whether “the 

danger of injustice by delaying appellate review outweighs the 

inconvenience and costs of piecemeal review.” New Mexico v. Trujillo, 813 

F.3d 1308, 1317 (10th Cir. 2016) (quoting United States v. Copar Pumice 

Co., 714 F.3d 1197, 1209 (10th Cir. 2013)). 

Practical finality is particularly appropriate when an agency may be 

foreclosed from appellate review. Id. at 1318 n.4; Bender v. Clark, 744 

F.2d 1424, 1428 (10th Cir. 2013). For example, we found the ruling 

practically final in Bender v. Clark, 744 F.3d 1424, 1427–28 (10th Cir. 

2013). In Bender, a district court remanded after concluding that the 

Interior Board of Land Appeals had applied the wrong standard of proof. 

744 F.2d at 1426. In exercising jurisdiction, we emphasized the importance 

of applying the correct standard of proof. Id. at 1428. Though the issue 

was important, it was unlikely to return if we did not undertake appellate 

review. Id. So deferring appellate jurisdiction would have threatened our 

ability to address an important issue involving the standard of proof. Id.

Deferring jurisdiction here could similarly threaten our ability to 

address the Commission’s appellate issue involving due process. This issue 

is serious and important, for due process is an “absolute” and “important” 

constitutional right. Carey v. Piphus, 435 U.S. 247, 266 (1978). 

If we were to decline appellate jurisdiction, the Commission’s dueprocess issue would likely escape review in the future. Dismissal of the 
9 

appeal would spark new administrative proceedings before a new panel, 

and the resulting order would supersede the Commission’s existing order. 

So any challenge to the district court’s ruling on due process would likely 

become moot, and the Commission would likely lose the chance to appeal. 

Reviewing the issue now may also help avoid piecemeal litigation. If 

we decline review and Zen loses again in administrative proceedings, Zen 

could again appeal to the district court based on a denial of due process. 

And if the district court were to rule against Zen, it could appeal. If Zen 

again appealed, we could invalidate the decision for lack of due process,

triggering a new round of litigation. By addressing the due process claim 

now, we may avoid multiple rounds of litigation. 

Given the need for immediate review, we consider the district court’s 

ruling on Commissioner Adler as practically final. 

B. We lack independent jurisdiction over Zen’s cross-appeal.

Our appellate jurisdiction over the Commission’s appeal does not 

encompass Zen’s cross-appeal. So Zen bears the burden of proving

appellate jurisdiction over the cross-appeal. See pp. 6–7, above. Zen tries 

to satisfy this burden with three arguments:

1. We have jurisdiction over the cross-appeal as a matter of 

practical finality. 

2. We have jurisdiction under the collateral-order doctrine. 

3. The denial of Zen’s motion to alter or amend is a final 

judgment. 
10

We reject these arguments. 

First, the district court’s decision was not “practically final” for Zen. 

For administrative agencies, a remand prevents a later appeal of the initial 

decision. Sierra Club v. U.S. Dep’t of Agric., 716 F.3d 653, 656–57 (D.C. 

Cir. 2013). But private parties can freely challenge the initial decision 

after the agency carries out the remand order. Id. So the remand order did 

not prevent eventual appellate review of Zen’s arguments. 

Second, the collateral-order doctrine does not apply. Under this 

doctrine, the collateral issue must be subject to a conclusive determination, 

be important and separate from the merits of the action, and be effectively 

unreviewable after a final judgment. Mesa Oil, Inc. v. United States, 467 

F.3d 1252, 1254 (10th Cir. 2006). Zen argues that it satisfies these 

requirements with respect to the bias of two Commissioners and the district 

court’s refusal to vacate language constituting an advisory opinion. We 

disagree. 

Even if we decline to exercise jurisdiction over the cross-appeal, Zen 

could eventually appeal based on the participation of Commissioners Kaye 

and Robinson. The eventual availability of judicial review prevents 

reliance on the collateral-order doctrine.

Zen also argues that if this appeal is dismissed, we could never 

consider whether the district court’s discussion on the merits constituted 
11

an advisory opinion. But the district court’s ruling hasn’t been vacated. So 

when a final order is eventually issued, Zen could appeal and argue that 

the merits discussion was advisory. See 28 U.S.C. § 1291 (2018).

Third, Zen argues that the denial of its motion to alter or amend 

constituted a final judgment. But the administrative remand order did not 

constitute a “final order,” Western Energy All. v. Salazar, 709 F.3d 1040, 

1047 (10th Cir. 1984), so “the denial of a motion to alter such judgment 

cannot be final for such purposes either,” Branson v. City of Los Angeles, 

912 F.2d 334, 336 (9th Cir. 1990). 2

 

Even if the denial of the motion to alter or amend had constituted a 

final judgment, we would lack appellate jurisdiction over the issue 

involving an advisory opinion. In Zen’s motion to alter or amend the 

judgment, Zen characterizes the district court’s prior assessment of the 

Commission’s decision as an advisory opinion. Even if this assessment

constituted an advisory opinion, the district court’s prior language did not 

constitute a judgment, and the entry of judgment is what triggers appellate 

jurisdiction. See Jennings v. Stephens, 574 U.S. 271, 277 (2015) (“This 

2

 Zen points out that the Ninth Circuit has characterized the denial of a 

Rule 59(e) motion as an appealable judgment. Second Br. at 12 (quoting 

Balla v. Idaho State Bd. of Corrs., 869 F.2d 461, 467 (9th Cir. 1989)). But 

the Ninth Circuit made this characterization while observing that a final 

judgment is required for a motion under Rule 59(e). Balla, 869 F.2d at 467.

A judgment is final only if it ends the litigation and leaves only the 

execution of the judgment. Catlin v. United States, 324 U.S. 229, 233 

(1945).
12

Court, like all federal appellate courts, does not review lower courts’ 

opinions, but their judgments.”); Chevron, U.S.A., Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837, 842 (1984) (“[T]his Court reviews judgments, 

not opinions.”).

C. We exercise pendent appellate jurisdiction over Zen’s due 

process claims.

Although we lack jurisdiction over the cross-appeal, we exercise 

pendent appellate jurisdiction over Zen’s due process claims.

We may exercise pendent appellate jurisdiction over non-appealable 

decisions “that overlap[] with an appealable decision.” Moore v. City of

Wynnewood, 57 F.3d 924, 929 (10th Cir. 1995). Though pendent appellate 

jurisdiction is disfavored, it is discretionary. Id. We may exercise that 

discretion when the non-appealable and appealable decisions are 

“inextricably intertwined.” Id. at 930. Claims are “inextricably 

intertwined” when “the pendent claim is coterminous with, or subsumed in, 

the claim before the court on interlocutory appeal.” United Transp. Union

Loc. 1745 v. City of Albuquerque, 178 F.3d 1109, 1114 (10th Cir. 1999) 

(quoting Moore, 57 F.3d at 930). 

Only Zen’s due process claims are intertwined with the 

Commission’s appeal. Zen contends that the district court improperly 

issued an advisory opinion, but this contention does not bear on the 

Commission’s argument about disqualification of Commissioner Adler. 
13

Zen’s contentions about Commissioners Robinson and Kaye are 

different. Zen bases these contentions on the same legal standard and 

analysis underlying the appeal as to Commissioner Adler’s participation. 

Given this overlap, we exercise pendent appellate jurisdiction over Zen’s 

cross-appeal on the due process issues. 

IV. The Commissioners did not violate Zen’s right to due process. 

Zen argues that it suffered a denial of due process from

• the Commissioners’ participation in an adjudication after a

related rulemaking and

• the public statements by three Commissioners (Adler, 

Robinson, and Kaye) showing bias. 

We reject both contentions.

A. The Commissioners did not violate due process by

participating in an adjudication during the related 

rulemaking. 

Zen admits that agencies can conduct simultaneous rulemakings and 

adjudications, but insists that the Commission’s simultaneous rulemaking 

and adjudication violated due process in this case. Compare Oral Arg. at 

31:14–23 (“We are not saying that there’s anything inherently wrong with 

conducting a rulemaking at the same time as undergoing an adjudication.”), 

with Second Br. at 21 (“Zen argue[s] that because there was such a high 

degree of overlap concerning the facts and laws at issue, the Commission 

did necessarily prejudge those matters in advance.” (emphasis in original)). 

In our view, the Commission’s simultaneous use of rulemaking and 
14

adjudication did not violate due process. See Stephanie W. Kanwit, Federal

Trade Commission § 1:3 (2019) (“The courts have also generally upheld 

the commission when it has simultaneously conducted industry-wide 

investigations and adjudicative proceedings involving the same general 

subject matter.” (footnote omitted)). 3

Agency officials can undertake multiple roles when carrying out their 

statutory duties, and the occupation of different roles is not necessarily 

problematic. For example, administrative officials could participate in an 

administrative adjudication even after investigating and testifying about 

their opinions on the underlying conduct. FTC v. Cement Inst., 333 U.S. 

3

 Although the Commission simultaneously conducted the rulemaking 

and adjudication, the individual Commissioners did not. In 2012, the 

Commission proposed the product safety standard and authorized complaint 

counsel to issue an administrative complaint against the magnet 

distributors. The Commissioners voted over two years later on approval of

the final rule. Roughly two more years passed before the adjudication was 

appealed to the Commission. 

Zen’s briefing does not clearly identify whether its due process 

challenge is based on 

• the Commission’s simultaneous participation in the proceedings 

or 

• the Commissioners’ participation in the adjudication after 

engagement in the rulemaking. 

Despite this ambiguity, either challenge would fail because simultaneous 

rulemaking and adjudication would not violate due process.
15

683, 700 (1948). 4 And a medical examining board’s investigation of a 

doctor did not preclude the board from later holding a hearing on whether 

to suspend the doctor’s license. Withrow v. Larkin, 421 U.S. 35, 46 (1975). 

Occupying multiple roles is ordinarily permissible even when an 

administrative official enters an adjudication familiar with the facts. After 

all, judges need not ordinarily recuse after ruling on similar issues in other 

cases involving the same parties. See Frey v. EPA, 751 F.3d 461, 472 (7th 

Cir. 2014) (concluding that the district judge’s prior ruling on similar 

issues in an enforcement action did not require recusal in a citizen suit); 

Steering Comm. v. Mead Corp. (In re Corrugated Container Antitrust 

Litig.), 614 F.2d 958, 964 (5th Cir. 1980) (stating that “overwhelming 

authority” relieves judges of the need to recuse when presiding over a case 

involving the same parties and facts even after forming pertinent 

conclusions in prior cases). Recusal is required only if familiarity with the 

facts would prevent an administrator from “judging a particular 

controversy fairly on the basis of its own circumstances.” Hortonville Joint 

Sch. Dist. No. 1. v. Hortonville Educ. Ass’n, 426 U.S. 482, 493 (1976) 

(quoting United States v. Morgan, 313 U.S. 409, 421 (1941)). 

4

 Zen points out that in Cement Institute, the adjudication addressed 

whether the defendants had engaged in conduct previously deemed illegal. 

333 U.S. at 700. But Cement Institute clarifies that agency officials can 

simultaneously undertake multiple roles in related matters without 

violating due process. Id.
16

Zen does not show any circumstances suggesting the Commissioners’ 

inability to remain impartial after addressing related issues in the 

rulemaking. Without such a showing, we conclude that the Commissioners 

did not deny Zen’s right to due process by serving first as rulemakers and

then as adjudicators. See Ash Grove Cement Co. v. FTC, 577 F.2d 1368, 

1373–77 (9th Cir. 1978) (concluding that the FTC’s expression of 

conclusions in an enforcement policy, which resulted from an investigation 

through rulemaking, did not show prejudgment of related issues in an 

adjudication).

B. The Commissioners’ statements do not reflect prejudgment 

of the issues or a reasonable appearance of prejudgment.

Though agencies may undertake overlapping rulemakings and 

adjudications, commissioners may still be disqualified for bias if they have 

“prejudged the case or . . . given a reasonable appearance of having 

prejudged it.” Kennecott Copper Corp. v. FTC, 467 F.2d 67, 80 (10th Cir. 

1972). But challengers must overcome a presumption that adjudicators are 

neutral, for we assume that adjudicators are people “of conscience and 

intellectual discipline, capable of judging a particular controversy fairly on 

the basis of its own circumstances.” United States v. Morgan, 313 U.S. 

409, 421 (1941); see p. 34, below. 

To determine whether Zen has overcome this presumption, we 

consider the context and content of the Commissioners’ statements. The 
17

context can include a variety of circumstances, including whether the 

statements

• involved legal or factual issues 5 or

• occurred within the course of performing official duties. 6

The Commissioners addressed factual issues, and the factual nature 

of these issues supports Zen. But the parties disagree on whether the 

statements constituted part of the rulemaking proceedings. Zen contends 

that the Commissioners made four statements that

• appeared in press releases after the Commission had already

voted to approve a proposed version of the eventual rule and 

• were made to “commend[] the righteousness of [the 

Commissioners’] actions.”

5

 See 2 Charles H. Koch, Jr., Administrative Law & Practice § 6:10, at 

359 (3d ed. 2010) (“Bias as to legal theory or policy cannot be attacked 

because bias as to policy or theory does not create a defect in the 

decisionmaking.”); Kenneth Culp Davis, Administrative Law Text 245 (3d 

ed. 1972) (“Bias in the sense of crystallized point of view about issues of 

law or policy is almost universally deemed no ground for 

disqualification.”). 

6

 See 2 Charles H. Koch, Jr., Administrative Law & Practice § 6:10, at 

362 (3d ed. 2010) (“Where the potential bias, even as to specific facts, 

occurs within an institutionalized decisionmaking context, it may be 

permitted unless it strikes at the very integrity of that process.”). These 

circumstances are not exhaustive. For example, a commissioner’s personal 

stake in the outcome could substantially affect the need for 

disqualification. See 7 Charles H. Koch, Jr., Federal Administrative 

Practice § 8302, at 592 (3d ed. 2001) (stating that “[t]he highest 

probability” of actual bias comes when the decisionmaker has a personal 

stake in the outcome). 
18

Second Br. at 24. But the Commissioners made three of these statements in 

the rulemaking to explain their votes for the rule. The fourth statement was 

issued by the Department of Justice. In this statement, the Department of 

Justice included a comment by Commissioner Kaye about a ruling 

unrelated to the pending adjudication against Zen.

None of the four statements show that the Commissioners prejudged 

the adjudication or gave a reasonable appearance of prejudgment. 7

7

 In its reply brief, Zen also relies on another statement by 

Commissioner Robinson. On May 14, 2014, Commissioner Robinson made 

a written statement about the Commission’s vote to enter into a consent 

agreement with another firm that had sold high-powered magnet sets. 

Commissioner Robinson stated that “[h]igh-powered magnets [were]

responsible for horrific, long-term, and life threatening injuries in infants 

and children estimated to be in the thousands.” Appellant’s App’x, vol. 1,

at 268. In a reply brief, Zen criticized the May 14 statement. But in the 

opening brief, Zen had focused only on two other statements that 

Commissioner Robinson had made in a separate hearing. 

We decline to consider the statement on May 14 because Zen did not 

challenge this statement in the opening brief. See State Farm Fire & Cas. 

Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1993) (“Appellant failed to 

raise this issue in his opening brief and, hence, has waived the point.”); 

Third Br. at 1 n.1 (explaining Zen’s waiver); Second Br. at 28–29 (quoting 

Commissioner Robinson’s first and second statements but not her third

statement). 

Zen contends that it preserved this argument because the second brief 

repeatedly referred to Commissioner Robinson’s comments, signaling that 

all of the comments were involved in the appeal. Fourth Br. at 24. The use 

of the plural was not enough to alert us to the third statement made on May 

14. As noted above, Zen’s opening brief had focused on two separate 

statements that Commissioner Robinson had made in a separate hearing. 

Without identifying the third statement in the opening brief, Zen failed to

preserve this argument. 
19

1. The three statements made during the rulemaking and one 

statement made outside the rulemaking do not show 

prejudgment or its appearance. 

The Commissioners’ three statements in the rulemaking do not 

suggest prejudgment or an appearance of prejudgment. The same is true of 

Commissioner Kaye’s statement outside the rulemaking. 

a. To determine whether a statement shows prejudgment or its 

appearance, we consider the statement’s context and 

content.

The Commission encourages us to approve of each statement made 

during the rulemaking without considering the content. For example, the 

Commission contends that “[b]ecause Commissioner Adler was not 

disqualified from the adjudication by virtue of his participation in the 

rulemaking, he also was not disqualified by virtue of opinions he 

appropriately formed and expressed in connection with that rulemaking.” 

First Br. at 16–17.

Zen responds that this argument is unpreserved because the 

Commission did not make it in district court. We disagree. The 

Commission raised this argument in district court, though the wording was

different.

We generally decline to consider arguments that were not made in 

district court. We decline consideration even if the appellant makes an 

argument falling “under the same general category as 

an argument presented at trial.” McDonald v. Kinder-Morgan, Inc., 287 
20

F.3d 992, 999 (10th Cir. 2002) (citing Lyons v. Jefferson Bank & 

Trust, 994 F.2d 716, 722 (10th Cir. 1993)). But we focus on the theories 

that the parties raise, not “the . . . legal rubrics that provide the foundation 

for them.” Ave. Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 885 (10th 

Cir. 2016) (quoting Fish v. Kobach, 840 F.3d 710, 730 (10th Cir. 2016)).

In framing its argument to our Court, the Commission contends that 

administrators can adjudicate issues even when they have expressed strong 

views on the subject. The Commission made the same argument in district 

court when insisting that Commissioner Adler could participate in both the 

rulemaking and the adjudication. See Appellant’s App’x, vol. 2, at 464 

(“Time and time again, the Supreme Court has held there is no violation of 

due process even if officials have already considered similar facts, reached 

legal conclusions about those facts, and publicly discussed those 

conclusions.”); id. at 470 (“Engaging in a Rulemaking and Adjudication 

Does Not Demonstrate Bias”). The phrasing is new, but the argument is 

not.

Though the Commission’s argument isn’t new, it is invalid. Just 

because a commissioner can participate in both a rulemaking and an 

adjudication doesn’t mean that the commissioner’s statements are insulated

from scrutiny. To decide whether a commissioner has prejudged the matter 

or given the appearance of prejudgment, we consider the circumstances. 

See Kennecott Copper Corp. v. FTC, 467 F.2d 67, 80 (10th Cir. 1972). The 
21

circumstances include whether the commissioner made the statements 

while carrying out an official duty. 

The Supreme Court addressed this issue in Federal Trade 

Commission v. Cement Institute, 333 U.S. 683 (1948). There the FTC 

condemned a pricing system before conducting an adjudication against 

various companies for using this pricing system. 333 U.S. at 700. The 

Supreme Court held that the right to due process did not prevent the FTC 

from adjudicating the case after deciding that the pricing system was 

illegal: 

[No] decision of this Court would require us to hold that it 

would be a violation of procedural due process for a judge to sit 

in a case after he had expressed an opinion as to whether certain 

types of conduct were prohibited by law. In fact, judges

frequently try the same case more than once and decide identical 

issues each time, although these issues involved questions both 

of law and fact. Certainly, the Federal Trade Commission cannot 

possibly be under stronger constitutional compulsions in this 

respect than a court.

Id. at 702–03. 8

We addressed a different situation in Staton v. Mayes, 552 F.2d 908 

(10th Cir. 1977). There we considered an administrator’s comments while

8

 Zen argues that Cement Institute is distinguishable because the FTC 

did not “conclude, as a matter of law and fact, that the respondents in that 

case had engaged in an illegal multiple basing point system.” Second Br. at 

22. But like the agency in Cement Institute, the Commission here 

confronted different issues in the rulemaking and adjudication. See pp. 26–

27, 29–30, below.
22

campaigning for office. 552 F.2d at 913–14. We concluded that the 

comments showed prejudgment in a later adjudication, and we observed 

that the administrator had made the statements outside his official

capacity. Id. at 914 (“These were not mere statements on a policy issue 

related to the dispute, leaving the decision maker capable of judging a 

particular controversy fairly on the basis of its own circumstances.”). 9

Cement Institute and Staton mark opposite sides of the spectrum. 

Under Cement Institute, an administrator can ordinarily participate in an 

adjudication after opining on disputed issues in the course of other 

proceedings. After all, judges must often decide issues after squarely 

deciding the same issues in other proceedings. But Staton shows that when 

an administrator unnecessarily makes prejudicial remarks outside an 

authorized proceeding, the court is more likely to find a violation of due 

process. 

9

 The D.C. Circuit addressed an analogous issue in Cinderella Career 

& Finishing Schools, Inc. v. FTC. 425 F.2d 583 (D.C. Cir. 1970). There the 

FTC issued a complaint against a charm school for unfair or deceptive 

marketing. Id. at 584. After the FTC reviewed an administrative law 

judge’s decision, Cinderella moved to disqualify one of the commissioners 

based on his public statements about Cinderella’s advertising. Id. at 584–

85, 589–90. The D.C. Circuit held that the commissioner’s statements 

showed bias and that he should have been disqualified, emphasizing that 

the commissioner had made the pertinent comments outside his official 

duties. Id. at 590–91. 
23

Under Cement Institute and Staton, we ask whether administrators 

made the prior statements in the course of an authorized proceeding. If

they did so, we are less likely to consider the prior statements as evidence 

of prejudgment or its appearance. 10

But even when statements take place in the course of an authorized 

proceeding, the statements may reflect prejudgment or its appearance. See 

Kristin E. Hickman & Richard J. Pierce, Jr., Administrative Law Treatise 

§ 7.7, at 868 (6th ed. 2019) (“It is conceivable that a decisionmaker can 

form an opinion of a party so extreme that it renders the decisionmaker 

impermissibly biased, even though the sole source of the facts that form 

the basis for the opinion is a judicial proceeding in which the 

decisionmaker presided.”). So the court must consider not only the 

statements’ context but also their content. 

10 The Commission also refers to Liteky v. United States, 510 U.S. 540 

(1994). Liteky held that 28 U.S.C. § 455(a) requires federal judges and 

justices to recuse from subsequent judicial proceedings based on

statements in previous judicial proceedings only when the statements are 

“so extreme as to display clear inability to render fair judgment.” 510 U.S. 

at 551. But Liteky bears little consequence here; that case relied on the 

requirements of 28 U.S.C. § 455(a), which arguably differ from the 

requirements for due process. See United States v. Couch, 896 F.2d 78, 81 

(5th Cir. 1978) (“[S]ection 455 and the Due Process Clause are not 

coterminous.”).
24

b. Commissioner Adler’s statement during the rulemaking does 

not show prejudgment or its appearance. 

Commissioner Adler made his statement during the rulemaking when 

explaining his vote. In the hearing on rulemaking, Commissioner Adler 

stated that “if these magnet sets remain on the market irrespective of how 

strong the warnings on the boxes in which they’re sold or how narrowly 

they are marketed to adults, children will continue to be at risk of 

debilitating harm or death from this product.” Appellant’s App’x, vol. 2, at

422.

Zen argues that this statement was made in a press release. But this 

statement is audible in the video recording of the rulemaking proceeding. 

U.S. Consumer Product Safety Commission, Commission Meeting: 

Decisional Matter - Safety Standard for Magnet Sets Final Rule [“Hearing 

Video”], YouTube, at 22:20–22:36 (Oct. 2, 2019),

https://www.youtube.com/watch?v=nyomlgxgQeU&feature=youtube. The 

Commission later printed Commissioner Adler’s statement and put it on the 

Commission’s website. But Commissioner Adler made this statement in the 

rulemaking itself, not afterward. 

Zen analogizes the statement to comments made following a 

proceeding when an adjudication is pending on the same issues. The 

analogy is inapt because Commissioner Adler didn’t make the statement

after the rulemaking. If a newspaper had printed the comments after the 
25

rulemaking, few would characterize the newspaper account as a new 

statement made outside of the rulemaking. Here the publication appeared

on the Commission’s website rather than in a newspaper, but this 

distinction does not give us any reason to treat the statement differently.

Because Commissioner Adler made the statement in the rulemaking itself, 

this factor weighs for the Commission. But this factor does not end the 

inquiry; we must still consider the content of Commissioner Adler’s 

statement.

The right to due process is violated when a commissioner’s remarks 

demonstrate prejudgment or the appearance of prejudgment. See Part 

IV(B), above. Zen argues that the statement shows Commissioner Adler’s

predisposition to find the magnets dangerous even with warnings. For three

reasons, we disagree. 

First, Commissioner Adler was directly addressing an issue before 

the Commission in the rulemaking: whether the risk could be addressed

through alternatives like warnings. See 15 U.S.C. § 2058(f)(3) (2018). 

Commissioner Adler had to decide the issue in order to resolve the 

rulemaking. 

Second, the statement was measured. Commissioner Adler said only 

that he didn’t think that warnings could mitigate the harm. This statement 

resembles the Commission’s explanation for the rule, which casts doubt on

the impact of warning labels on the risk of injury. See Safety Standard for 
26

Magnet Sets, 77 Fed. Reg. 53,781, 53,789 (Sept. 4, 2012). So 

Commissioner Adler’s statements do not show prejudgment or its 

appearance.

Third, Commissioner Adler clarified that his comments at the hearing 

did not bear on his judgment in the adjudication. Right after making his 

statement, Commissioner Adler emphasized that

• he was not “passing judgment on whether magnets present [a 

substantial product] hazard” for the adjudication because “[he] 

ha[d] not seen the case before [him],” Hearing Video at 24:38–

24:43, and 

• “[e]ach type of proceeding carries different factual elements 

and different standards of proof,” id. at 25:41–25:46. 11 

Commissioner Adler then repeated these comments in a written 

statement on the rulemaking, acknowledging “that a product found to 

present an unreasonable risk of injury” in a rulemaking “might be 

11 Zen points out that the district court concluded that the “role of 

warnings and marketing efforts [had been] of central relevance in the 

adjudication.” Appellant’s App’x, vol 1, at 521. But the issues in the 

rulemaking and adjudication differed. See pp. 26–27, 29–30, below.

Zen also argues that Commissioner Adler’s statement was 

extrajudicial because the rulemaking did not address the need to remove 

the magnets from the market. But Commissioner Adler made the statement 

• during the rulemaking 

• about issues involved in the rulemaking.

So his statement was not extrajudicial. See pp. 24–25, above.
27

completely exonerated as a substantial risk of injury” in an adjudication.

Appellant’s App’x, vol. 1, at 269. 12 

Given the context and content of Commissioner Adler’s statements, 

we conclude that they did not show prejudgment or the appearance of 

prejudgment.

c. Commissioner Robinson’s statements during the rulemaking 

do not show prejudgment or its appearance. 

Zen also addresses two of Commissioner Robinson’s remarks during 

the rulemaking: 

1. “The problem was however that however they were 

marketed that these were items that were being swallowed 

by young children and ingested by teenagers and were 

causing some very, very serious injuries and even 

deaths.” 

2. “With the data that we had even though it made a 

compelling case for this being an unreasonable risk of 

injury it was understated so the risk was even higher.” 

Appellant’s App’x, vol. 2, at 423 (emphasis in original). 13

12 Indeed, the Commission used different reasoning in the adjudication 

and final rulemaking. See, e.g., id. at 69 n.28 (noting that in the 

adjudication, the Commission declined to rely on emergency-room injury

reports for injury estimates even though the Commission had relied in the 

rulemaking on these reports).

13 Although Commissioner Robinson is no longer on the Commission, 

her departure does not moot the issue. See Second Br. at 25 n.12. If 

Commissioner Robinson’s participation violated Zen’s right to due process, 

her participation would invalidate the Commission’s decision because the 

Court would have no way of knowing whether she had influenced the other 
28

Zen again says that the statements came in a press release. But 

Commissioner Robinson’s statements are recorded in a videotape of the 

rulemaking as she explained her decision. The first statement came in

Commissioner Robinson’s opening remarks, Hearing Video at 1:40–1:59; 

the second statement came when Commissioner Robinson explained her 

vote for the rule, id. at 30:14–30:24. 

The Commission later printed Commissioner Robinson’s statement 

and put a written version on the Commission’s website. But just like 

Commissioner Adler, Commissioner Robinson didn’t make any new 

statements for the website; the Commission simply printed the statements 

that Commissioner Robinson had made during the rulemaking itself. So the

context of the statements supports the Commission.

But we must still consider whether the statements’ contents show 

prejudgment or the appearance of prejudgment. The district court answered 

“no,” and we agree. 

In her opening remarks, Commissioner Robinson suggested that no 

marketing could mitigate the risk. See p. 27, above. But the statement did 

not show that the Commissioner’s mind was closed to the possibility of 

mitigating the risk through better instructions. 

two Commissioners’ decisions. See Cinderella Career & Finishing Schs., 

Inc v. FTC, 425 F.2d 583, 592 (D.C. Cir. 1970).
29

In her second statement, Commissioner Robinson also distinguished 

between the standards used in rulemaking and adjudication. The 

rulemaking required the Commission to make specific findings, including 

the necessity of eliminating or reducing the risk of injury. 15 U.S.C. 

§ 2058(f)(3) (2018). By contrast, the adjudication required the Commission 

to decide whether the magnets constituted a “substantial product hazard.” 

15 U.S.C. § 2064(a) (2018). The term “substantial product hazard” refers 

to either 

• a failure to comply with consumer product safety rules “which 

creates a substantial risk of injury to the public” or 

• “a product defect which (because of the pattern of defect, the 

number of defective products distributed in commerce, the 

severity of the risk, or otherwise) creates a substantial risk of 

injury to the public.” 

Id. 

In explaining her vote for the rule, Commissioner Robinson 

reiterated the elements necessary for rulemaking under 15 U.S.C. 

§ 2058(f)(3). See Hearing Video at 27:30–27:38 (“In approaching my 

decision in this matter, I very much looked carefully at the statutes under 

which we operate in rulemaking.”). Commissioner Robinson noted that the 

data had “made a compelling case for this being an unreasonable risk of 

injury” but hadn’t shown whether a potential product hazard would have 

been substantial. See Appellant’s App’x, vol. 2, at 423. So Commissioner 
30

Robinson’s statement does not bear on the issue underlying the 

adjudication.

* * *

Given the context and content of Commission Robinson’s statements, 

we conclude that they do not show prejudgment or the appearance of 

prejudgment.

d. Commissioner Kaye’s statements (one made during the 

rulemaking and one made outside the rulemaking) do not 

show prejudgment or its appearance. 

Zen also points to an impassioned statement at the rulemaking by 

then-Chairman Kaye about the magnets’ dangers: 

We all have fears in life. Every single one of us. For me, the 

biggest without any question, is something tragic happening to 

one of my boys. Every night, EVERY NIGHT, long after we have 

put them to bed, I sneak back into their rooms to kiss them one 

more time. As I do that, I feel tremendous gratitude they are alive 

and well, and that I am so blessed to have the privilege of hearing 

in the dark of their rooms the soothing and rhythmic sound of 

their breathing. I hug them tight, trying not to wake them, all the 

while knowing that, as long as I might hang on that particular

evening, that moment is rather fleeting. And I also know each 

night that there is certainly no guarantee I will have even one 

more night to hold onto them tight.

As a parent and as the Chairman of the CPSC, I hurt so much for 

[AC’s] family. I was so deeply moved that [AC’s] mother, 

brothers, grandmother, aunt, and cousin took the time to drive 

from Ohio to attend the Commission’s vote. I will always think 

of [AC] when it comes to this rule and the action the Commission 

has approved, and I am so deeply sorry for [AC’s] family’s loss.

Id. at 422 (emphasis in original). 
31

Zen again alleges that this statement was made in a press release 

after the rulemaking. But Commissioner Kaye made this statement in the 

rulemaking as he explained his vote. Hearing Video at 15:19–16:37. The 

making of this statement in the rulemaking favors the Commission.

But we must also consider whether the contents of the statement 

reflect prejudgment or the appearance of prejudgment. Like the district 

court, we conclude that the statement does not show prejudgment. The 

statement was passionate, but this passion is not disqualifying. See United 

States v. Morgan, 313 U.S. 409, 421 (1941) (concluding that the Secretary 

of Agriculture’s expression of “strong views” on an issue did not require 

disqualification from participating in related proceedings). In the same 

speech, Commissioner Kaye attributed his vote and his remarks to the 

Commission’s mandate to protect consumers. Hearing Video at 9:35–9:43

(“I have not seen a better example of the Commission, in particular CPSC 

staff, responding and proceeding in a manner true to our mission and 

purpose.”)

Zen argues that Commissioner Kaye’s statement went too far and 

showed “a personal stake in the outcome of both proceedings,” 

demonstrating that he was “removing the Subject Products from the market 

in order to protect his own children.” Fourth Br. at 10 (emphasis in 

original). We disagree. Commissioner Kaye never said that his children 

had used the magnets. He was simply expressing sympathy for the family 
32

of a child who had died from swallowing the magnets. This expression of 

sympathy did not reflect prejudgment of the issues. See United States v. 

Rangel, 697 F.3d 795, 804–05 (9th Cir. 2012) (holding that a district 

judge’s expression of sympathy for crime victims did not require 

disqualification from sentencing). 14

Commissioner Kaye made another statement unrelated to the 

rulemaking process. In general, comments by adjudicators outside their 

official duties are not enough, standing alone, to require disqualification. 

For example, in Kennecott Copper Corp. v. FTC, a copper corporation

acquired one of the two leading coal corporations in the country. 467 F.2d 

67, 69 (10th Cir. 1972). The FTC alleged that this acquisition had violated 

the Clayton Act. Id. The copper corporation argued that it had not received 

due process because one of the Commissioners had given a public 

interview using the copper corporation’s case as an example. Id. at 80. In 

evaluating the claim, we considered not only the Commissioner’s decision 

to give an interview but also what she had said. Id. We concluded that the 

comments did not infringe the right to due process. Id. 

Given Kennecott, we consider the context of Commissioner Kaye’s 

statement. It was disconnected from the rulemaking but not from his duties 

14 In Rangel, the district judge expressed sympathy for the victims after 

hearing them recount their hardships. 697 F.3d at 804–05. Similarly, 

Commissioner Kaye expressed sympathy for the child’s family after seeing 

that they had attended the vote for the rulemaking. See p. 30, above.
33

as a Commissioner. In March 2016, a district court enjoined Zen from 

selling certain rare-earth magnets. Zen had purchased hundreds of 

thousands of small rare-earth magnets at a discount from another magnet 

company. One week later, the seller agreed to recall the magnets as part of 

an agreement with the Commission. Following this agreement, Zen was 

enjoined from reselling the magnets. 

The Department of Justice issued a press release about the injunction 

and included an official statement by Commissioner Kaye. In the press 

release, Commissioner Kaye stated:

Today’s decision puts the rule of law and the safety of children 

above the profits sought by Zen . . . . Far too many children have 

been rushed into hospital emergency rooms to have multiple, 

high-powered magnets surgically removed from their stomachs. 

Young children have suffered infections and one child tragically 

died from swallowing loose magnets that often look like candy. 

The ruling is a major victory for the safety of consumers. Our 

pursuit of this case makes clear we will not tolerate the sale of 

recalled goods in any form. I am pleased that Judge Arguello 

ordered Zen to issue refunds to consumers, and I urge anyone 

who purchased these magnets to immediately seek a refund from 

Zen.

Appellant’s App’x, vol. 1, at 275–76. Zen objects to the accusation that it 

elevated profit over “the rule of law” and “the safety of children.” Second 

Br. at 30 (quoting Appellant’s App’x, vol. 1, at 275). 

This statement does not show that Commissioner Kaye prejudged the

adjudication. Enforcing the recall order was unrelated to the adjudication.

Appellant’s App’x, vol. 2, at 524. And Commissioner Kaye was simply 
34

addressing Zen’s decision to sell magnets that had been recalled. The 

statement did not bear on the issue involved in the adjudication (whether 

unrecalled magnets posed a substantial product hazard). 

Commissioner Kaye’s comments were also measured. Though 

Commissioner Kaye lauded the court for prioritizing safety over Zen’s 

profits, the statement focused on the injury from selling magnets that had 

already been recalled. The message is not enough to overcome the

presumption that agency adjudicators are “capable of judging a particular 

controversy fairly on the basis of its own circumstances.” United States v. 

Morgan, 313 U.S. 409, 421 (1941); see p. 16, above. 15

V. Conclusion

Because Zen did not suffer a violation of due process from the 

Commissioners’ participation in the adjudication, we

• reverse the district court’s exclusion of Commissioner Adler 

and conclude that his participation in the adjudication did not 

violate due process and

• affirm the district court’s rejection of Zen’s challenges to the 

participation of Commissioners Kaye and Robinson based on 

bias. 

15 Zen also argues that we should exclude the Commissioners from 

participating in the adjudication because the Commission’s chairperson 

thought that her colleagues had prejudged the issues. But we must make 

our own independent determination on the issue of due process. We can 

evaluate the entirety of the Commissioners’ statements as they appear in 

the videotape of the rulemaking. We have no need to defer to a 

characterization by another participant in the rulemaking.