Independent Producers Group v. Library of Congress

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2014 Decided July 25, 2014
No. 13-1132
INDEPENDENT PRODUCERS GROUP,
APPELLANT
v.
LIBRARY OF CONGRESS AND REGISTER OF COPYRIGHTS,
APPELLEES
CHRISTIAN BROADCASTING NETWORK, INC., ET AL.,
INTERVENORS
Appeal of an Order of the Copyright Royalty Board
2
Brian D. Boydston argued the cause and filed the briefs
for appellant.
Sonia K. McNeil, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Stuart F. Delery, Assistant Attorney General, and Scott R.
McIntosh and Mark R. Freeman, Attorneys.
Clifford M. Harrington, Matthew J. MacLean, Gregory
O. Olaniran, and Lucy H. Plovnick were on the brief for
intervenors Settling Devotional Claimants and Program
Suppliers, in support of appellees.
Before: ROGERS, BROWN and MILLETT, Circuit Judges.
Opinion for the court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: The Copyright Office of the
Library of Congress manages a royalty fund that provides
payments to copyright holders when they are statutorily
obligated to license their work to third parties. Appellant
Independent Producers Group (IPG) challenges the
distribution of royalties from that fund for religious
programming broadcasts on cable television in 1998. The
complication for IPG is that, eleven years ago, its former
president signed settlement agreements that fully disposed of
IPG’s interest in those 1998 royalties. On the basis of those
agreements, the Librarian of Congress determined that there
was no remaining controversy over the 1998 royalties and
made a final distribution of those funds in 2003. A decade
later, IPG asks this court to unravel that distribution. That we
cannot do. Instead, because we lack statutory jurisdiction
over this dispute, we dismiss this appeal.
3
I
The Constitution empowers Congress to “promote the
Progress of Science and useful Arts, by securing for limited
Times to Authors * * * the exclusive Right to their * * *
Writings[.]” U.S. CONST. Art. 1, § 8, cl. 8. Pursuant to that
grant of authority, Congress adopted the Copyright Act to
balance two often competing “communications policies
grounded in the Constitution—ensuring the protection of
intellectual property and encouraging the free flow of
information” to the public. National Cable Television Ass’n
v. Copyright Royalty Tribunal, 689 F.2d 1077, 1078–1079
(D.C. Cir. 1982) (footnote omitted).
One way the Copyright Act effectuates that balance is by
providing for the compulsory licensing of copyrighted
material in certain circumstances. See 17 U.S.C. §§ 107–122;
see also National Cable, 689 F.2d at 1078. Such compulsory
licensing limits the exclusive rights of copyright holders by
allowing anyone who meets the statutory conditions—
including the payment of a royalty fee—to make and
distribute the copyrighted work without contractual
permission from the copyright owner. See Recording
Industry Ass’n of America v. Copyright Royalty Tribunal, 662
F.2d 1, 3 (D.C. Cir. 1981). The particular compulsory
licensing provision at issue here enables cable operators, by
paying a royalty fee, to retransmit to their customers
television programs that are owned by broadcast stations. 17
U.S.C. § 111.
In 1998, the responsibility for setting reasonable rates and
distributing them rested with ad hoc Copyright Arbitration
Royalty Panels within the Library of Congress. 17 U.S.C. §
801 (2000) (amended 2004). In 2004, Congress reassigned
those duties to a newly created Copyright Royalty Board
4
within the Library of Congress. Copyright Royalty and
Distribution Reform Act of 2004, Pub. L. No. 108-419, 118
Stat. 2341 (codified at 17 U.S.C. §§ 801 et seq.). The Board
is composed of three Copyright Royalty Judges. 17 U.S.C.
§ 801(b); 37 C.F.R. § 301.1. Those Royalty Judges are
“appointed by the Librarian of Congress to encourage
settlements and, when necessary, resolve statutory license
disputes.” 70 Fed. Reg. 30901-01.
To promote the efficient distribution of royalty fees,
Congress crafted distribution procedures that encourage the
private resolution of fee disputes and limit judicial review of
such private agreements. For example, Congress excepted
from the antitrust laws agreements by claimants (i) resolving
“the proportionate division of statutory licensing fees among
them[selves],” (ii) “lump[ing] their claims together and
fil[ing] them jointly or as a single claim,” or (iii) designat[ing]
a common agent to receive payment on their behalf.” 17
U.S.C. § 111(d)(4)(A).
At the outset of the fee distribution process, “every
person claiming to be entitled to statutory license fees for
secondary transmissions” must file a claim with the Copyright
Royalty Judges.” 17 U.S.C. § 111(d)(4)(A). The Royalty
Judges subsequently “determine whether there exists a
controversy concerning the distribution of royalty fees.” Id.§ 111(d)(4)(B). If the Royalty Judges conclude that there is
no controversy, they authorize the Librarian of Congress to
distribute the royalties to each qualified applicant. Id.
If, on the other hand, a controversy exists, the Royalty
Judges must “conduct a proceeding to determine the
distribution of royalty fees.” 17 U.S.C. § 111(d)(4)(B).
While that controversy is pending, the Royalty Judges retain
“the discretion to authorize the Librarian of Congress to
5
proceed to distribute any amounts that are not in controversy”
at any time. 17 U.S.C. § 111(d)(4)(C). For cable royalty
distributions, the Royalty Judges typically conduct two rounds
of proceedings. In Phase I, the Royalty Judges split the
overall pot of money among the different categories of
claimants, such as sports claimants and music claimants. See
37 C.F.R. § 351.1. In Phase II, the Royalty Judges divide the
money between the individual copyright owners within each
category. Id.When a controversy arises, the Royalty Judges publish a
notice of commencement of dispute proceedings in the
Federal Register, 17 U.S.C. § 803(b)(1)(A)(i), at which point
interested claimants must file petitions to participate, id.§ 803(b)(1)(A)(ii). Once the time to file petitions expires, id.,
the Royalty Judges send each petitioner a list of all the other
petitioners, which marks the start of a three-month long
“voluntary negotiation period.” Id. § 803(b)(3).
For claims still in dispute after the negotiation period, the
Royalty Judges accept written submissions, supervise a 60-
day discovery period, and order a 21-day settlement
conference period. 17 U.S.C. § 803(b)(6)(C). Only after
those time-periods for voluntary resolution pass may the
Royalty Judges resolve the dispute. Id. § 803(c)(1). Their
decision must be in writing, “supported by the written
record,” and must “set forth the findings of fact relied on by
the Copyright Royalty Judges.” Id. § 803(c)(3). The Register
of Copyrights then has 60 days to review that determination
for “legal error” in the resolution “of a material question of
substantive law[.]” Id. § 802(f)(1)(D). The final
determination is published in the Federal Register. Id.
§ 803(c)(6).
6
Not every decision the Royalty Judges make is subject to
judicial review. Instead, Congress provided that “[a]ny
determination of the Copyright Royalty Judges under
subsection (c)”—that is, 17 U.S.C. § 803(c)’s controversy-
resolution process—“may, within 30 days after the
publication of the determination in the Federal Register, be
appealed, to the United States Court of Appeals for the
District of Columbia Circuit[.]” 17 U.S.C. § 803(d)(1)
(emphasis added).
II
This case arises from a tangled web of internal and
external disputes involving IPG. IPG is a company that, as
relevant here, represents copyright holders claiming an
interest in the religious programming portion of the 1998
cable royalty fund. The company’s founder, Raul Galaz, was
convicted in 2002 of submitting fraudulent claims to the
Copyright Office, in which he asserted rights to royalties
(under the same statutory license scheme at issue in this case)
for the cartoon show “Garfield and Friends.” See Galaz v.
Jackson, No. B184916, 2006 WL 648852, at *1-*2 (Cal. App.
2d Dist. March 16, 2006). Around the time of his conviction,
Raul Galaz divorced his wife, Lisa Galaz. As part of the
divorce decree, the former spouses split Mr. Galaz’s 75%
ownership interest in IPG’s predecessor entities, each taking
37.5%. See Galaz v. Oshita, Nos. B181278 & B187428, 2006
WL 1461134, at *1 (Cal. App. 2d Dist. May 30, 2006).
Marian Oshita, the president of IPG, owned the remaining
25%. Id.In May 2002, Raul Galaz transferred his remaining stake
in the companies to Oshita, leaving her with 62.5%
ownership. Galaz v. Oshita, Nos. B181278, B187428, 2006
WL 1461134, at *1. But Lisa Galaz never signed off on that
7
transfer, and fought it in the courts. She won when a
California court ordered that, “from the date of entry of this
judgment [January 26, 2005], plaintiff, Lisa Katona Galaz, is
the owner of a 75% economic and membership interest in”
IPG. Galaz v. Oshita, No. BC 297015, Plaintiff’s Judgment
on Jury Verdict at 8 (Cal. Super. Ct. L.A. County, Jan. 26,
2005), J.A. 197.
The upshot of that internal imbroglio is that Marian
Oshita controlled the company and acted as president between
May 2002 and January 26, 2005. That period coincides with
crucial negotiations over the Phase II distribution of the 1998
religious-programming cable royalties funds.1 In July and
November of 2003, Oshita signed two settlement agreements
that together resolved IPG’s claims to that portion of the 1998
fund. J.A. 134, 141.
With those agreements in place, all claimants in the
religious programming category—including IPG—promptly
moved the Register of Copyrights for a final distribution of
royalties. See Notice of Settlement of Phase II Devotional
Claims and Motion for Distribution of Funds, Copyright
Office Docket No. 2001-8 CARP CD 98-99 (November 14,
2003), J.A. 94. The Register granted the motion, noting that
“all Phase II controversies concerning the distribution of the
1998 cable royalty fees have been settled and no other
1
The Copyright Office began Phase I proceedings for the 1998
royalty fund in 2000. See 65 Fed. Reg. 54,077-02 (Sept. 6, 2000).
IPG participated. The Librarian announced a final Phase I
allocation and published it in the Federal Register in 2004. See 69
Fed. Reg. 3606-04 (Jan. 26, 2004). This court upheld that
allocation on appeal. See Program Suppliers v. Librarian of
Congress, 409 F.3d 395 (D.C. Cir. 2005).
8
controversies exist regarding the distribution of royalty fees in
this category.” Order, Copyright Office Docket No. 2001-8
CARP CD 98-99 (November 19, 2003), J.A. 298. No party
objected or sought judicial review of that decision or the
subsequent distributions in 2003 and 2004.
IPG also asserted distinct royalty claims as a “program
supplier.” Program suppliers are “the copyright owners of
movies and syndicated shows.” Program Suppliers, 409 F.3d
at 397. IPG pressed its claim in that category until March
2004, when Oshita entered into a settlement agreement with
the Motion Picture Association of America that fully disposed
of IPG’s interest in that pot of money. J.A. 26. As part of
that settlement, IPG “agree[d] to withdraw its notice(s) of
intent to participate in the proceeding to distribute the 1997,
1998, and 1999 Cable Royalty Funds[.]” J.A. 37.
Relying in part on that agreement, the Copyright Office
distributed almost all of the remaining 1998 cable royalties in
May 2007, setting aside just $800,000 to resolve some
remaining controversies in the program supplier category.
See Order, Docket No. 2001-8 CARP CD 98-99 (May 24,
2007), J.A. 253.
Responsibility for the remainder of the 1998 fund, along
with the 1999 fund, passed to the Royalty Judges in August
2007, see 72 Fed. Reg. at 45,071-01 (August 10, 2007), and
the Judges announced in January 2008 the start of Phase II
proceedings for those consolidated funds, see 73 Fed. Reg.
5596-01 (January 30, 2008).
IPG, having since come under the control of its current
management, filed a petition to participate in the January
2008 dispute resolution proceeding, raising claims in both the
religious programming and program supplier categories. The
Motion Picture Association objected that the 2004 settlement
9
agreement barred IPG from taking part in the proceedings as a
program supplier. IPG responded by suing in California state
court to have the 2004 agreement rescinded, arguing that
Oshita had lacked the authority to bind the company. With
that state-court litigation pending, both IPG and the Motion
Picture Association petitioned the Royalty Judges for a stay of
proceedings, which was granted. See Order Granting Motions
to Stay, Docket No. 2008-1 CRB CD 98-99 (July 23, 2008),
J.A. 299.
The California litigation concluded in July 2012, when
the California Court of Appeal determined that, in 2005, IPG
had ratified the program suppliers’ settlement agreement by
retaining the benefits of the settlement, and was therefore
bound by it. See Worldwide Subsidy Group v. Motion Picture
Association of America, Inc., No. B236717, 2012 WL
2950719, at *3 -*4 (July 20, 2012). By resolving the case on
that basis, the court did not decide whether Oshita had the
authority, actual or apparent, to bind the company before
2005.
Following the California court’s decision, the parties to
the 1998 fund (other than IPG) moved for a final distribution,
which did not include any payout to IPG. See Motion for
Final Distribution of the 1998 and 1999 Cable Royalty Funds
and 1999 Satellite Royalty Funds, Docket No. 2008-1 CARP
CD 98-99 (August 29, 2012), J.A. 1. IPG strenuously
objected. See Opposition of Independent Producers Group to
Motion for Final Distribution of 1998 and 1999 Cable
Royalty Funds and 1999 Satellite Royalty Funds, Docket No.
2008-1 CRB CD 98-99 (September 5, 2012), J.A. 60. In
IPG’s view, the 2004 program suppliers agreement covered
only the program supplier category, and left the company’s
religious programming claims intact. With respect to the
separate July and November 2003 settlement agreements that
10
addressed IPG’s share of the religious programming royalties,
IPG’s current management contended that it had “absolutely
no details” regarding those agreements, not “even the date of
[their] existence.” Id. at 5, J.A. 64.
The Royalty Judges approved final distribution of the
1998 fund in January 2013. See Order Granting in Part
Motion for Final Distribution of the 1998 and 1999 Cable
Royalty Funds and the 1999 Satellite Royalty Funds, Docket
No. 2008-1 CRB CD 98-99 (January 31, 2013), J.A. 78. The
Royalty Judges found that “IPG’s assertion that a controversy
remains for the 1998 cable funds with respect to the
devotional programming category is belied by the fact that the
Librarian ha[d] already made a final distribution of those
monies” back in November 2003. Id. at 2, J.A. 79. There
being “no suggestion or proof” that the “settlement agreement
between Devotional Claimants and IPG, which served as the
basis for making the distribution, is defective or otherwise
invalid,” the Royalty Judges concluded that no controversy
remained involving the 1998 fund. Id. at 3, J.A. 80.
IPG moved for reconsideration with respect to the
devotional programming distribution only, arguing that Oshita
lacked the power to bind the company in 2003, and that “IPG
expressly notified several parties participating in cable royalty
proceedings” of its internal disputes. See Independent
Producers Group’s Motion for Reconsideration of Order
Granting Final Distribution of the 1998 Cable Royalty Funds
(Devotional), Docket No. 2008-1 CRB CD 98-99 (February
15, 2013) at 5, J.A. 86.
The Royalty Judges denied reconsideration. See Order
Denying Independent Producers Group’s Motion for
Reconsideration, Docket No. 2008-1 CRB CD 98-99 (March
11, 2013), J.A. 231. They reasoned that, even if IPG could
11
show that the 2003 agreements were invalid, “the Librarian of
Congress * * * determined in 2003 that no controversies
existed in the devotional programming category for the 1998
cable royalties * * *. Accordingly, he made a final
distribution of those monies,” which “ended the matter.” Id.
at 2, J.A. 232.
IPG appealed both determinations to this court, invoking
the judicial review provision of 17 U.S.C. § 803(d). We
decide the question of this court’s jurisdiction de novo. See,
e.g., Battle v. F.A.A. 393 F.3d 1330, 1332 (D.C. Cir. 2005).
III
Unfortunately for IPG, this knotty dispute is not one that
this court may untangle through an appeal under 17 U.S.C.
§ 803(d). Congress was explicit that this court has statutory
jurisdiction only to review a “determination” by the Royalty
Judges “under subsection (c)” of Chapter 8 of the Copyright
Act. See 17 U.S.C. § 803(d)(1). And the straightforward text
of that provision excludes IPG’s effort to revisit a past
distribution that was based on a “no controversy”
determination.
To begin with, Section 803(d) does not authorize judicial
review of just any objection to any decision made by the
Royalty Judges. Instead, appeals may be taken only by an
“aggrieved participant in the proceeding under subsection
(b)(2) who fully participated in the proceeding and who
would be bound by the determination.” 17 U.S.C.
§ 803(d)(1).2 Thus, one precondition for judicial review is
2
The judicial review provision states, in full:
12
that there be a “proceeding” conducted by the Royalty Judges
“under subsection (b)(2).” Id. And subsection (b)(2), in turn,
governs petitions by parties to participate following the
Royalty Judges’ formal notice in the Federal Register that a
contested proceeding will be conducted, id. § 803(b)(1) & (2).
The 2003 determination that no controversy remained
involving the devotional programming category, and the
Royalty Judges’ reliance on that decision here, did not involve
any controversy “proceeding” “under subsection (b)(2).”
Moreover, a right to appeal does not arise unless the
Royalty Judges conduct the type of controversy proceeding in
which parties may “fully participate[]” and which results in
binding determinations. 17 U.S.C. § 803(d)(1). Resolution of
a disputed controversy through formal proceedings fits that
bill; the decision in this case that no controversy exists and
thus that no proceedings are needed does not.
Any determination of the Copyright Royalty Judges under
subsection (c) may, within 30 days after the publication of
the determination in the Federal Register, be appealed, to
the United States Court of Appeals for the District of
Columbia Circuit, by any aggrieved participant in the
proceeding under subsection (b)(2) who fully participated
in the proceeding and who would be bound by the
determination. Any participant that did not participate in a
rehearing may not raise any issue that was the subject of
that rehearing at any stage of judicial review of the hearing
determination. If no appeal is brought within that 30-day
period, the determination of the Copyright Royalty Judges
shall be final, and the royalty fee or determination with
respect to the distribution of fees, as the case may be, shall
take effect as set forth in paragraph (2).
17 U.S.C. § 803(d)(1).
13
Likewise, Congress set a time limit on appeals, requiring
that they be filed “within 30 days after the publication of the
[Royalty Judges’] determination in the Federal Register.” 17
U.S.C. § 803(d)(1). That timeframe works when a contested
determination results in a final written decision by the
Royalty Judges, which, by statute, must be published in the
Federal Register. 17 U.S.C. § 803(c)(6). But a determination
of no controversy and a distribution pursuant to private
settlement, as occurred here, make no appearance in the
Federal Register. The time to appeal from the type of non-
controversy determination at issue here, if an appeal were
permitted, would never begin or end.
The text of subsection 803(c), which identifies the
proceedings from which appeals may be taken, drives the
point home. That subsection lays out a variety of procedural
requirements, all of which pertain to formally contested
proceedings, and virtually none of which could apply sensibly
to a finding of no controversy or payment pursuant to a
privately negotiated settlement agreement.
First, subsection (c) requires that the Royalty Judges set
forth the findings of fact on which they rely in making a
determination, and that the determination be supported by the
written record. 17 U.S.C. § 803(c)(3). That makes sense as a
way to explain and justify a controverted determination after
formal proceedings, as well as to ensure an adequate record
for review in this court. But it ill suits the Royalty Judges’
merely mechanical act of tracking a settlement agreement
when making uncontested disbursements, a step for which no
proceedings are undertaken and no facts formally found.
Second, the statute requires that a subsection (c)
determination issue within eleven months of the conclusion of
a three-week settlement period, which itself follows a sixty-
14
day discovery period. 17 U.S.C. § 803(c)(1) (cross-
referencing Section 803(b)(6)(C)(x)). Discovery, however, is
not needed for a voluntary settlement agreement. And if the
parties reach an accord early in the settlement period, there
would be no rational justification for Congress to insist that
the Royalty Judges make them sit on their hands for another
three weeks before releasing the funds. The existence of
those time periods in subsection 803(c) thus highlights that
putting a private settlement into effect is an entirely different
process from imposing the Royalty Judges’ independent
“determination” on parties who could not agree on
distribution.
Third, and relatedly, the eleven months the Copyright Act
gives the Royalty Judges to reach a determination allows
them to weigh evidence, determine facts, and prepare a
written decision when the parties disagree. But giving effect
to a voluntary settlement agreement takes far less time. In
this case, it took just five days. Tellingly, Congress
separately addressed the timing of distributions following
settlement agreements, which can take place at any time
“during the pendency of any proceeding[.]” 17 U.S.C.
§ 111(d)(4)(C). The statutory structure thus indicates that
Congress put contested and non-contested distributions on
distinct procedural tracks, permitting an appeal only from the
former.
Fourth, subsection (c)(6) links publication in the Federal
Register—which triggers the running of the appeal time
period, 17 U.S.C. § 803(d)(1)—to the termination of the time
for the Register of Copyrights to review final determinations
by the Royalty Judges pursuant to 17 U.S.C. § 802(f)(1)(D).
That review by the Register is “for legal error [in] the
resolution * * * of a material question of substantive law
under this title[.]” 17 U.S.C. § 802(f)(1)(D). The resolution
15
of contested claims to copyright royalty funds could readily
implicate interpretation of the Copyright Act. But a finding
of no controversy and the straightforward distribution of
funds pursuant to a private settlement agreement affords the
Royalty Judges no occasion to opine on material questions of
law under the Copyright Act.
Indeed, the kinds of legal questions that might arise from
a settlement agreement, such as contractual disputes or
questions of agency law like IPG raises, are not questions of
law “under this title,” 17 U.S.C. § 802(f)(1)(D), and would
likely fall entirely outside the jurisdiction of the Royalty
Judges, see National Broadcasting Co. v. Copyright Royalty
Tribunal, 848 F.2d 1289, 1295 (D.C. Cir. 1988) (Copyright
Royalty Tribunal, predecessor to the Judges, authorized only
to decide distributional issues, not “common law claims of
entitlement”).
There are, in short, two different kinds of decisions that
arise in the Copyright Act’s royalty distribution process: (1) a
determination under Chapter 8 in which the Royalty Judges
decide who gets what, subject to direct review in this court;
and (2) a mechanical distribution under Chapter 1 in which
the parties themselves decide who gets what and the Royalty
Judges simply give effect to that uncontroverted division of
the pie, with no direct review in this court ensuing. When the
parties bypass the controversy process by settling their
dispute, they forgo the particular opportunity for judicial
review in this court authorized by 17 U.S.C. § 803(d)(1).
IV
IPG objects that its current management never received
notice of the 2003 religious-programming settlements or the
ensuing distribution of those funds, and that those agreements
were void from the beginning, which now precludes treatment
16
of this case as a non-controverted settlement. In effect, the
company argues, the Royalty Judges decided the merits of
whether or not IPG was bound by Oshita’s agreements in the
guise of determining whether any dispute existed at all.
That is not right. What is key to judicial review is not
current IPG management’s knowledge of what past
management did, but the type of proceeding the Royalty
Judges conducted based on the information they were
provided by interested parties at the time. And nothing in the
record or IPG’s argument remotely suggests that the Royalty
Judges had any notice of any controversy concerning the
settlement agreements or Oshita’s authority at the time they
made their no-controversy determination. While IPG
contends that it gave some parties notice of a dispute, IPG
does not claim that it gave the Royalty Judges any warning at
all. That is particularly troubling given that current IPG
management was aware of Oshita’s efforts to settle royalty
fund disputes by no later than November 3, 2003.3 The
Royalty Judges did not distribute the uncontested religious
programming funds until more than two weeks later. Current
management thus had time to notify the Royalty Judges that a
controversy was brewing. But they did not do so.
Moreover, whatever IPG’s grievances with its former
president or even with the alleged behavior of other parties,
those are questions of corporate authority under state law for
state court disposition. They are not the types of issues that
fall within the Copyright Act’s reach or the Royalty Judges’
3
See Opposition of Independent Producers Group to Motion for
Final Distribution of 1998 and 1999 Cable Royalty Funds and 1999
Satellite Royalty Funds, Docket No. 2008-1 CRB CD 98-99
(September 5, 2012), J.A. 62.
17
bailiwick. See National Broadcasting Co., 848 F.2d at 1295.
Indeed, the Royalty Judges delayed proceedings in this case to
allow the California courts to determine the disputed
questions of corporate authority pertaining to the validity of
the 2004 program suppliers settlement agreement. IPG could
have sought a similar stay to litigate Oshita’s authority to
enter into the 2003 devotional programming agreements. But
it chose not to.
IPG, in short, seeks judicial review under an inapposite
jurisdictional grant of a decade-old distribution based on the
actions of IPG’s then-president, on which the Royalty Judges
reasonably relied and, indeed, the authority for which has
never been challenged in state court. We accordingly need
not decide what the jurisdictional implications (if any) would
be if a diligent and innocent party discovered a fraud for the
first time after a distribution occurred, or if the Royalty
Judges were on notice of a settlement agreement’s challenged
validity before they acted. We also need not consider the
availability of extraordinary review for an allegedly ultra
vires agency action, see Mittleman v. Postal Regulatory
Commission, No. 12-1095, slip op. at 14 (D.C. Cir. July 8,
2014); cf., e.g., Bowen v. Michigan Academy of Family
Physicians, 476 U.S. 667, 670 (1986) (there is a “strong
presumption that Congress intends judicial review of
administrative action”). Nor need we decide today whether
review of the Royalty Judges’ determination of no
controversy may ever lie in the district court under the
Administrative Procedure Act (APA), 5 U.S.C. §§ 501 et seq.
Compare Ethnic Employees of the Library of Congress v.
Boorstin, 751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985) (“the
Library [of Congress] is not an agency under the
Administrative Procedure Act”), with Intercollegiate
Broadcasting System, Inc. v. Copyright Royalty Board, 684
F.3d 1332, 1341-1342 (D.C. Cir. 2012) (the Royalty Judges
18
are “a component of the Executive Branch”); see also 17
U.S.C. § 701(e) (actions by the Register of Copyrights are
subject to APA review). IPG did not pursue APA review in
the district court, and this court may transfer a case to the
lower court for initial review only “if it is in the interest of
justice[.]” 28 U.S.C. § 1631. Even assuming such review
were available, that interest would be distinctly ill-served by
keeping this litigation alive for yet another round. The appeal
is accordingly dismissed for want of jurisdiction.
So ordered.