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

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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

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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

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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

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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.