Opinion

Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board

796 F.3d 111
418 U.S. App. D.C. 111
115 U.S.P.Q. 2d (BNA) 1933
2015 U.S. App. LEXIS 14015
2015 WL 4727198

Court: Court of Appeals for the D.C. Circuit
Filed: Aug 11, 2015
Status: Published
Author: Garland
On the bench: Garland, Srinivasan, Wilkins
Cited by: 32 cases
Authority: More cited than 82.0%

explaining that “not every possible kind of taint is fatal because, if it were, there would be no way to remedy an Appointments Clause violation”

How later courts described this case

explaining that “not every possible kind of taint is fatal because, if it were, there would be no way to remedy an Appointments Clause violation”
noting that “the Board did not set the [minimum] fee based solely on SoundExchange’s administrative costs” but also “relied on the evidence of industry-wide average administrative cost”
emphasizing that the minimum fee distinction requirement applies to each “type of service,” 17 U.S.C. § 114 (f)(1)(B)—“not for each individual webcaster”
“[A] court’s holding that there has been an Appointments Clause violation does not mean that the violation cannot be remedied by a new, proper appointment.”

Written by the judges who cited it.

The opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2015 Decided August 11, 2015

No. 14-1068

INTERCOLLEGIATE BROADCASTING SYSTEM, INC.,

APPELLANT

APPELLEES

COLLEGE BROADCASTERS, INC. AND SOUNDEXCHANGE, INC.,

INTERVENORS

On Appeal From the Copyright Royalty Board

John R. Grimm argued the cause for appellant. With him on

the briefs were Timothy J. Simeone and Christopher J. Wright.

Sonia K. McNeil, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief was Mark

R. Freeman, Attorney.

Matthew S. Hellman argued the cause for intervenor

SoundExchange, Inc. With him on the brief were Michael B.

DeSanctis and Ishan K. Bhabha. David A. Handzo entered an

appearance.

David D. Golden and Catherine R. Gellis were on the brief

for intervenor College Broadcasters, Inc. in support of appellees.

Before: GARLAND, Chief Judge, and SRINIVASAN and

WILKINS, Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: Intercollegiate Broadcasting

System, Inc., appeals a determination by the Copyright Royalty

Board setting royalty rates for webcasting. Three years ago, we

vacated and remanded the Board’s prior determination on this

subject, concluding that its members had been appointed in

violation of the Constitution’s Appointments Clause.

Thereafter, the Librarian of Congress appointed a new Board,

which made the determination at issue here. Intercollegiate

contends that the new Board’s determination again violated the

Appointments Clause because it was tainted by the previous

Board’s decision. The appellant also disputes the merits of the

Board’s determination. For the reasons set forth below, we

reject both challenges.

Intercollegiate Broadcasting System (IBS) is a nonprofit

association that represents college and high school radio

stations, which historically broadcasted over the air. Many of its

member stations are now involved in webcasting -- the digital

transmission of sound recordings over the Internet by, for

example, Internet radio music services.

In 1995, Congress amended the Copyright Act to grant the

owner of a sound recording copyright the exclusive right to

publicly perform the copyrighted work by means of a digital

audio transmission. See Digital Performance Right in Sound

Recordings Act of 1995, sec. 2, § 106(6), Pub. L. No. 104-39,

109 Stat. 336, 336 (codified at 17 U.S.C. § 106(6)). This right

is now subject to certain limitations. Most relevant to this

appeal, subsequent amendments in the Digital Millennium

“created a statutory license in performances by webcast, to serve

Internet broadcasters and to provide a means of paying

(D.C. Cir. 2009) (internal quotation marks omitted); see 17

U.S.C. § 114(d)(2). These licenses permit entities other than the

recordings without the copyright holder’s permission. In

exchange, the licensees -- here, webcasters -- must pay royalty

fees to the copyright owner as required by the statute. See

Indep. Producers Grp. v. Library of Congress, 759 F.3d 100,

101 (D.C. Cir. 2014). Such royalties are normally paid to

intervenor in this case, SoundExchange, Inc.

In the Copyright Royalty and Distribution Reform Act of

2004, Pub. L. No. 108-419, 118 Stat. 2341, Congress created the

Board is composed of three Copyright Royalty Judges,

appointed by the Librarian of Congress, and is authorized to

determine rates and terms for the licensing and use of

copyrighted works in (inter alia) webcasting. See 17 U.S.C.

§§ 114(f), 801(b)(1). If the parties voluntarily agree on rates

and terms, the Act directs the Board to adopt their agreement.

See id. § 114(f)(3). If the parties fail to agree, the Board must

hold adversarial proceedings governed by the statute and its

regulations to determine “reasonable” royalty rates and terms for

the license period in question. Id. § 114(f)(2)(A); see id. § 803;

37 C.F.R. §§ 351.1 et seq. The Board’s final determination is

governed by the standards set forth in the Act. As relevant here,

the Board must “distinguish among the different types” of

services and must determine “a minimum fee for each such type

of service.” 17 U.S.C. § 114(f)(2)(B). The final rates and terms

must be those that “most clearly represent the rates and terms

that would have been negotiated in the marketplace between a

willing buyer and a willing seller.” Id. Following a review for

legal error by the Register of Copyrights, id. § 802(f)(1)(D), the

Librarian of Congress publishes the determination in the Federal

In January 2009, the Board initiated a proceeding to

establish the rates and terms for the public performance of

digital sound recordings for the 2011-2015 period. Most

participants reached settlements during the voluntary negotiation

period prescribed by the statute. See Determination of Royalty

Rates for Digital Performance Right in Sound Recordings and

Ephemeral Recordings, 79 Fed. Reg. 23,102, 23,102 (Apr. 25,

2014) [hereinafter 2014 Final Determination]; see also 17

U.S.C. § 803(b)(3). The Board held an evidentiary hearing for

the remaining participants, including Intercollegiate. The Board

received written and live testimony from fifteen witnesses and

admitted sixty exhibits into evidence. See 79 Fed. Reg. at

23,104. The record also included written and oral argument of

counsel. See id. The Board issued a final determination on

March 9, 2011. See Digital Performance Right in Sound

Recordings and Ephemeral Recordings, 76 Fed. Reg. 13,026

(Mar. 9, 2011) [hereinafter 2011 Final Determination]. Among

other things, the determination included a $500 per station or per

channel annual minimum fee for all commercial and

noncommercial webcasters.

Intercollegiate appealed the 2011 final determination,

contending both that the Judges were appointed in violation of

the Appointments Clause, and that the minimum fee was

unlawful as applied to “small” and “very small” noncommercial

webcasters. This court agreed with the former challenge and did

not reach the latter. See Intercollegiate Broad. Sys., Inc. v.

Cir. 2012). We determined that Congress had vested the Judges,

who could not be removed except for cause, with sufficient

authority and independence to qualify as “principal” officers of

the United States. Id. at 1336-41. Under the Appointments

Clause, however, principal officers must be appointed by the

President and confirmed by the Senate. See U.S. CONST. art. II,

§ 2, cl. 2. To “cure[] the constitutional defect with as little

disruption as possible,” we declared invalid and severed the

statutory provision that barred the Librarian of Congress from

removing the Judges without cause. Intercollegiate II, 684 F.3d

at 1336-37, 1340. “Once the limitations on the Librarian’s

removal authority are nullified,” we said, the Judges “become

validly appointed inferior officers.” Id. at 1341. Because the

Judges were not validly appointed at the time they issued the

challenged determination, however, we vacated and remanded

that determination without reaching the merits of

Intercollegiate’s challenge. Id. at 1342.

Thereafter, the Librarian appointed three new Copyright

Royalty Judges to replace the previous Judges. The new Judges

directed the parties to submit proposals regarding how to

proceed on the remand. Unsurprisingly, the parties proposed

nearly opposite ways forward. SoundExchange initially

proposed that the Judges “reinstate the Final Determination in its

entirety without undertaking further proceedings.”

SoundExchange’s Mot. Concerning Conduct of Proceedings on

Remand 1 (J.A. 173). Intercollegiate said the Judges should

reopen proceedings and permit additional written and oral

testimony and briefing. See IBS’s Proposal for Conduct of

Remand 1 (J.A. 194).

After reviewing the parties’ proposals, the Board issued a

preliminary Notice of Intention to Conduct a Paper Proceeding

on Remand. The Notice contained several key points. First, the

Board interpreted this court’s remand as directing it to review

the entire record and to issue a new determination on all issues,

not just the $500 minimum fee that Intercollegiate had

challenged on appeal. Notice of Intention to Conduct Paper

Proceeding on Remand 4 (J.A. 221) [hereinafter Notice].

Second, because the court did not reach the merits of the

dispute, the Board understood that it “could, after an appropriate

process, issue a new final determination that . . . reaches the

same conclusions . . . as the prior Final Determination.” Id. at

5 (J.A. 222). The Board recognized, however, that it was “also

free to reach completely different conclusions in [its] new final

determination.” Id. Third, the Board decided neither to “rubber

stamp” the prior Board’s decision, nor to conduct a “complete

‘do over’ of the entire original process.” Id. at 6 (J.A. 223).

Instead, it would conduct an independent, de novo review of the

entire written record of the proceeding. Id. at 7 (J.A. 224). The

Board decided not to hold new evidentiary hearings because

Intercollegiate had “fail[ed] . . . to point to any instance of an

exclusion of relevant evidence that affected the outcome of the

proceeding, or to any portion of the Final Determination that

turned on witness credibility.” Id. Likewise, the Board decided

not to accept additional submissions because “no party ha[d]

provided any specific reason . . . to reopen the record,” and

because each party “had ample opportunity to present its case.”

Id.

In sum, the Board concluded that “it would be neither fair,

nor efficient, nor economical to proceed . . . with additional

submissions, discovery, and evidentiary hearings.” Notice at 7-

8 (J.A. 224-25). Accordingly, as authorized by 17 U.S.C.

§ 803(b)(5), the Board stated its intention to “conduct[] only a

paper proceeding, consisting of a review of the existing record

in this proceeding, and then issu[e] a determination at the

conclusion of that review.” Id. at 9 (J.A. 226). The Board

established a ten-day period for comments on the Notice. “[T]o

the extent that any party disagree[d]” with the plan to go

forward with a paper proceeding, the Board directed such party

to “identify in its comments to this notice specific examples

where it believes the outcome of the original proceeding turned

on elements, such as witness demeanor, that are not readily

determined from a review of the written record.” Id.

After the end of the comment period, the Board announced

that it would “proceed with [its] consideration de novo on the

existing record” and would “accept no further submissions.”

Order Following Notice of Intention to Conduct Paper

Proceeding (J.A. 233). The Board issued its preliminary written

determination on January 9, 2014. See 2014 Final

Determination, 79 Fed. Reg. at 23,103. On April 25, 2014, the

Board issued the final determination at issue on this appeal. See

id. at 23,102. Once again, the final determination imposed a

$500 per station or per channel annual minimum fee for both

commercial and noncommercial webcasters. See id. at 23,122-

24. As in the 2011 final determination, the Board rejected

Intercollegiate’s proposal to impose lower annual fees on

“small” and “very small” noncommercial webcasters. Id. at

23,123.

Intercollegiate filed a timely appeal of the Board’s final

determination to this court, which has jurisdiction pursuant to 17

U.S.C. § 803(d)(1). Intercollegiate contends that the Board’s

determination violated the Appointments Clause again. It also

challenges the merits of the determination insofar as it requires

Intercollegiate’s members to pay $500 per year. Reply Br. 4 &

n.1. SoundExchange, the nonprofit entity responsible for

distributing statutory royalties for the 2011-2015 period, see 37

C.F.R. § 380.2, intervened to defend the determination.

Intercollegiate’s principal contention is that the new

Board’s determination violated the Appointments Clause

because it was “still tainted by the Appointments Clause

violation that originally led this Court to remand” the previous

Board’s determination. Intercollegiate Br. 15. We consider that

constitutional challenge de novo. See Am. Bus. Ass’n v. Rogoff,

649 F.3d 734, 737 (D.C. Cir. 2011).

The Appointments Clause provides that the President “shall

nominate, and by and with the Advice and Consent of the

Senate, shall appoint . . . Officers of the United States, . . . but

the Congress may by Law vest the Appointment of such inferior

Officers, as they think proper, in the President alone, in the

Courts of Law, or in the Heads of Departments.” U.S. CONST.

art. II, § 2, cl. 2. As we have noted, this court vacated and

remanded the previous Board’s 2011 determination of

webcasting rates because the Copyright Royalty Judges who

made that determination had been appointed in violation of the

Clause. Intercollegiate II, 684 F.3d at 1342. The Librarian of

Congress responded by replacing the three original Judges with

three new ones, appointed under the statute with the offending

provision severed and with the power to reconsider the matter de

novo.

Intercollegiate does not dispute that the three new Judges

were properly appointed by the Librarian under the

Appointments Clause. Rather, it contends that, “[b]y merely

reviewing de novo their predecessors’ proceedings instead of

conducting their own proceeding permitting firsthand credibility

determinations and evidentiary rulings, the Judges did nothing

more than enshrine the constitutional violations that this Court

sought to cure.” Intercollegiate Br. 15. We disagree.

This court has twice before considered the validity of

decisions made after the replacement of an improperly appointed

official. Both cases support the validity of a subsequent

determination when -- as here -- a properly appointed official

has the power to conduct an independent evaluation of the

merits and does so.

1. In FEC v. Legi-Tech, we held that a properly

reconstituted Federal Election Commission (FEC) could

reauthorize pending enforcement actions that had been initiated

by an unconstitutionally constituted Commission. 75 F.3d 704,

706 (D.C. Cir. 1996). In an earlier case, another panel of this

court had held that a provision of the Federal Election Campaign

Act, placing two congressional officers on the Commission as

ex officio members, violated constitutional separation-of-powers

principles. See FEC v. NRA Political Victory Fund, 6 F.3d 821

(D.C. Cir. 1993). That case also held that the ex officio

provision was severable. Id. at 827-28. Thereafter, the

Commission voted to reconstitute itself and exclude the ex

officio members. The reconstituted Commission then

considered the pending actions, deliberated for three days, and

voted to continue the actions against the defendant. This was

sufficient to cure the constitutional violation, we said,

notwithstanding the possibility that the Commission may have

in fact “rubberstamp[ed]” the enforcement action. Legi-Tech, 75

F.3d at 708-09.1

See Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision,

139 F.3d 203, 213 (D.C. Cir. 1998) (describing “misgivings” in Legi-

Tech about “whether the new FEC had engaged in a real fresh

deliberation” (internal quotation marks omitted)); see also Andrade v.

Regnery, 824 F.2d 1253, 1257 (D.C. Cir. 1987) (finding no

Appointments Clause violation where a properly appointed official

In Doolin Security Savings Bank, F.S.B. v. Office of Thrift

Supervision, we again affirmed the ability of a properly

appointed officer to uphold the decision of one who was not.

139 F.3d 203, 213-14 (D.C. Cir. 1998). There, the agency

persuaded us that a validly appointed agency director had “made

a detached and considered judgment” in ratifying the previous

director’s decision. Id. Because the new director “effectively

ratified the [previous director’s] Notice of Charges . . . at a time

when he could have initiated the charges himself,” it was not

even necessary to decide whether the previous director had

“lawfully occupied the position.” Id. at 214.

These precedents make clear that the new Board’s de novo

determination that a $500 annual fee was proper did not violate

the Appointments Clause. Intercollegiate seeks to avoid this

result by overstating the importance of particular facts in each

case.

Intercollegiate argues that Legi-Tech is distinguishable

because it was based in part on the practical futility of

remanding to the Commission for new proceedings because the

Commission’s voting membership had not changed. Under such

circumstances, we said, “forcing the Commission to start at the

beginning of the administrative process, given human nature,

promises no more detached and ‘pure’ consideration of the

merits.” Legi-Tech, 75 F.3d at 709. But Intercollegiate’s

argument proves too much. It implies that the Board’s

determination would be less vulnerable had the Librarian

retained the three original Judges -- who, we held, became

“validly appointed inferior officers” once “the limitations on the

Librarian’s removal authority [were] nullified,” Intercollegiate

with final authority, but who had been in office only three days,

ratified and implemented a program that had been extensively planned

by his improperly appointed predecessor).

II, 684 F.3d at 1341 -- rather than replaced them with new

individuals. We doubt that Intercollegiate would regard those

original Judges as more independent than their replacements.

Indeed, because Legi-Tech held that ratification by a

reconstituted Commission with the same voting members was

sufficient to satisfy the Appointments Clause, it follows a

fortiori that a de novo determination by a Copyright Royalty

Board with all new members was sufficient as well.

Intercollegiate also seeks to distinguish both Legi-Tech and

Doolin on the ground that they involved administrative

enforcement actions -- “an area of traditionally broad discretion”

-- rather than the exercise of judicial authority in an adversarial

proceeding. Intercollegiate Br. 25-26 & n.52. But neither Legi-

Tech nor Doolin rested its holding on that ground.2 Moreover,

this court subsequently suggested that the logic of Legi-Tech and

Doolin would apply in the adjudication context as well: in a

case vacating an order issued by a two-person National Labor

Relations Board (NLRB) that we found lacked a statutory

quorum, we suggested that ratification by a properly constituted

Board would be appropriate. See Laurel Baye Healthcare of

Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 476 (D.C. Cir. 2009)

(citing Legi-Tech, 75 F.3d 704); cf. Fortuna Enters., LP v.

NLRB, 789 F.3d 154, 158 (D.C. Cir. 2015) (reviewing an NLRB

decision that “reinstat[ed] and incorporat[ed] by reference” a

prior decision issued by a two-person Board).3

Legi-Tech mentioned the point in a single sentence, after the

court had already rejected the appellee’s challenge and immediately

before introducing a further rejection with the clause, “In any event.”

75 F.3d at 709.

In a footnote, Intercollegiate suggests that Doolin is also

distinguishable because it included a question as to whether the

previous director in that case was validly appointed under the

2. Intercollegiate maintains that two Supreme Court cases

stand for the proposition that the only way to remedy the

exercise of judicial authority by invalidly appointed judges is for

the new judges to “conduct a new hearing, not merely a de novo

review of the record assembled by the constitutionally invalid

tribunal.” Intercollegiate Br. 20. Neither case stands for that

proposition.

In the first case Intercollegiate cites, Ryder v. United States,

the Supreme Court held only that an Appointments Clause

violation arising out of a decision rendered by an improperly

constituted tribunal was not remedied through appellate review

by a properly constituted body with a narrower scope of

authority. 515 U.S. 177, 187-88 (1995). Ryder involved a

member of the United States Coast Guard who was convicted by

a court-martial. Two appellate courts -- the Coast Guard Court

of Military Review, followed by the United States Court of

Military Appeals -- affirmed his conviction. Ryder argued to the

Court of Military Appeals that two members of the Coast Guard

Court had been appointed in violation of the Appointments

Clause. Id. at 179. Although the Court of Military Appeals

agreed that the appointments violated the Clause, it nonetheless

affirmed the intermediate court’s ruling. Id. at 179-80.

The Supreme Court reversed, rejecting the government’s

argument that any defect in the Coast Guard Court “was in

effect cured by the review available to petitioner in the Court of

Military Appeals.” Id. at 186. Because the Coast Guard Court

“had broader discretion to review claims of error, revise factual

Vacancies Act. Intercollegiate Br. 28 n.54. But the court held that,

notwithstanding whether the previous director was validly appointed

under either the Vacancies Act or the Appointments Clause, Doolin,

139 F.3d at 205, 207, the new director could ratify the previous

director’s decision. Id. at 212-14 (citing Legi-Tech, 75 F.3d 704).

determinations, and revise sentences than” the Court of Military

Appeals did, the Supreme Court concluded it “simply cannot be

said . . . that review by the properly constituted Court of Military

Appeals gave petitioner all the possibility for relief that review

by a properly constituted Coast Guard Court . . . would have

given him.” Id. at 187-88. The Supreme Court therefore held

that Ryder was “entitled to a hearing before a properly appointed

panel of that court.” Id. at 188.

We agree with Intercollegiate insofar as it argues Ryder

stands for the proposition that review by a properly appointed

body can be insufficient to cure an Appointments Clause

violation. But it does not stand for the proposition that de novo

review is insufficient. To the contrary, the problem Ryder

identified was that the reviewing court (the Court of Military

Appeals) did not have authority to conduct a de novo review (as

did the Coast Guard Court). Id. at 187. Nor does Ryder stand

for the proposition that the only remedy for an Appointments

Clause violation is a new evidentiary hearing regardless of the

scope of the reviewing court’s authority. Intercollegiate’s only

support for that claim is a single sentence at the end of the

Court’s opinion, which stated that Ryder was “entitled to a

hearing before a properly appointed panel.” Id. at 188. Nothing

in that sentence suggests that a new hearing would have been

required if the reviewing court had possessed de novo authority.

Nor does anything suggest that such a hearing would have to

involve live witnesses or additional evidence.4

Cf. United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 241

(1973) (holding that a statute’s use of the word “hearing” did not “by

its own force require [an agency] either to hear oral testimony, to

permit cross-examination . . . , or to hear oral argument”); Henry J.

Friendly, “Some Kind of Hearing,” 123 U. PA. L. REV. 1267, 1281

(1975) (noting that a “hearing” may include a proceeding based on

written, rather than oral, presentations).

In the case before us, the original Copyright Royalty Board

did not have “broader discretion,” Ryder, 515 U.S. at 187-88,

than did the new Board. To the contrary, the new Board had full

authority to make its own determination, including the discretion

to do so after a completely new proceeding or a de novo review

of the record. Although it chose the latter, it did so of its own

accord. Thus, unlike in Ryder, here it can be said that “review

by the properly constituted [Board] gave [Intercollegiate] all the

possibility for relief that review by a properly constituted

[original Board] would have given [it].” Id. at 187-88.

Accordingly, Intercollegiate did indeed have “a hearing before

a properly appointed panel,” id. at 188, of Copyright Royalty

Judges.

The second case Intercollegiate cites, Wingo v. Wedding,

did not involve the Appointments Clause at all and is even

further afield. 418 U.S. 461 (1974). In Wingo, the Court held

that a court’s local rule authorizing magistrate judges to conduct

evidentiary hearings in federal habeas corpus proceedings was

invalid because it was precluded by the Federal Magistrates Act.

Id. at 472. The Court further held that, because the Act required

a district court judge to “personally hold evidentiary hearings,”

the invalidity of the rule was not cured by a provision requiring

the district court to review a recording of the evidentiary hearing

de novo. Id. at 472-74.

Thus, Wingo does not, as Intercollegiate insists, stand for

the general proposition that “de novo review of an existing

record is an inadequate remedy where a validly appointed judge

exceeds the scope of his legal authority.” Intercollegiate Br. 23.

Rather, it stands for the proposition that such review is

inadequate when a statute expressly requires the reviewing judge

to personally hold an evidentiary hearing. The statute governing

Board proceedings lacks any equivalent requirement that the

Judges hold live hearings. To the contrary, it expressly permits

them to proceed on the paper record alone. See 17 U.S.C.

§ 803(b)(5); see also id. § 803(b)(6)(C)(iii) (“Hearsay may be

admitted in proceedings under this chapter to the extent deemed

appropriate by the Copyright Royalty Judges.”).

Intercollegiate further maintains that, even if independent

review of a prior record by a properly constituted Board may be

sufficient to cure an Appointments Clause violation, the Board’s

determination on remand was “not independent of the earlier

Board’s reasoning, but rather was incurably tainted by it.”

Intercollegiate Br. 24. The appellant’s arguments about the

Board’s lack of independence are unpersuasive.

1. First, Intercollegiate makes a number of general

arguments. It argues that the fact that the new Judges’

determination was “substantially identical” to that of the prior

Judges “undermine[s] the pretense that the Judges’ decision was

fully independent.” Reply Br. 10. Although Intercollegiate

acknowledges that the new determination differs from the

previous one on a number of points that it does not challenge on

this appeal, see id. at 10 & n.9; Board Br. 18 n.4, it emphasizes

that the Board “adopted a rate structure that is overwhelmingly

(if not entirely) identical to the one this court vacated,” Reply

Br. 11. As our precedents show, however, once a new Board

has been properly appointed (or reconstituted), the

Appointments Clause does not bar it from reaching the same

conclusion as its predecessor. See Legi-Tech, 75 F.3d at 708-09;

Doolin, 139 F.3d at 213-14; see also Andrade v. Regnery, 824

F.2d 1253, 1257 (D.C. Cir. 1987). Identifying an Appointments

Clause infirmity in a decision does not guarantee that a party

will get the merits decision it wants.

Intercollegiate next seeks to infer a lack of independence

from the way the Judges characterized their task. Noting that,

in denying Intercollegiate’s motion for rehearing, the Judges

described their role as “‘pick[ing] up the process where th[e]

earlier Judges left off,’” Intercollegiate insists that they thus

“implicitly validate[d] every decision that led to the point where

the ‘earlier Judges left off.’” Intercollegiate Br. 30 (emphasis

omitted) (quoting Order Denying Mot. for Reh’g 2 (J.A. 235)).

But this takes the Judges’ statement badly out of context. The

Judges made that remark in rejecting Intercollegiate’s assertion

that the new panel had “improperly delegated responsibility for

holding hearings” to the prior panel. Order Denying Mot. for

Reh’g 2 (J.A. 235). As the Judges explained:

This assertion confuses “delegation” with

“succession.” This is not a case where the Judges

delegated the job of holding hearings to a subordinate

administrative law judge. The current Judges

succeeded to the positions of the earlier Judges and

picked up the process where those earlier Judges left

off.

Id. (internal citation and quotation marks omitted). The Judges

then went on to emphasize that the “current panel weighed and

analyzed the record de novo.” Id. at 3 (J.A. 236).

The Judges had earlier declared, in their Notice of Intention

to Conduct a Paper Proceeding, that they were “free to reach

completely different conclusions in their new final

determination” than the prior Judges reached. Notice at 5 (J.A.

222). After completion of the comment period that followed

that notice, the Judges announced that they would “proceed with

their consideration de novo on the existing record.” Order

Following Notice of Intention (J.A. 233). Thereafter, the

Judges’ final determination confirmed that they had decided the

matter “based upon a de novo review of the substantial record

that the parties developed during the proceeding leading to the

first determination.” 2014 Final Determination, 79 Fed. Reg. at

23,103. We think it beyond peradventure that the Judges

understood their task to involve a de novo determination.

2. We find equally unpersuasive Intercollegiate’s

miscellaneous attempts to identify specific indications of the

previous Judges’ hidden influence on their successors.

Intercollegiate notes that, although the regulations permit

the Board to conduct a papers-only hearing, here the Board “did

not conduct a review of just the papers,” but instead also

reviewed the record and transcripts from the prior proceeding.

Intercollegiate Br. 31-32 (emphasis omitted). But if this is a

problem of any kind, it is not a constitutional problem; nothing

in the Appointments Clause instructs properly appointed

officials to conduct proceedings in any particular way. Whether

it constitutes a problem of administrative procedure is a question

we address below. See infra Part III.

Intercollegiate attempts to transmute this procedural issue

into a constitutional one by focusing on the relationship between

the new Judges and their predecessors. In particular,

Intercollegiate argues that “the new Judges refused to consider

any argument or evidence not assembled by their

unconstitutionally appointed predecessors.” Reply Br. 1

(emphasis added). But the phrase “assembled by” is misleading.

As the Board emphasized in denying rehearing, “the parties to

that hearing created the record,” based on the evidence that they

themselves, including Intercollegiate, submitted. Order Denying

Mot. for Reh’g 2 (J.A. 235). There is no Appointments Clause

problem in limiting Intercollegiate to the evidence that it

decided, on its own volition, to submit to the previous Board.

Relatedly, Intercollegiate maintains that it has “never had

an opportunity to oppose the fee before a panel of judges whose

appointment does not offend the Constitution.” Reply Br. 2.

But again, that is incorrect. All of its original arguments were

presented, in paper form, to the new Board. And the Board gave

Intercollegiate the further opportunity to argue that such a paper

proceeding was insufficient: the Board expressly invited the

parties to identify any reason why they should not proceed on

the prior record. See Notice at 2, 9 (J.A. 219, 226).

Intercollegiate did submit comments arguing for a new

evidentiary hearing, but the new Board rejected those

arguments, concluding that “[e]ach party has had ample

opportunity to present its case.” Id. at 7 (J.A. 224). Again,

whether this contravened rules of administrative procedure is an

issue we address below. See infra Part III. But it is not an

Appointments Clause problem.

Intercollegiate also insists that the “oral testimony the

Judges reviewed was taken by the original Board, subject to the

original Judges’ evidentiary rulings, and is therefore tainted by

the original Board’s constitutional infirmity.” Intercollegiate Br.

32. But that, too, is incorrect. Intercollegiate maintains that, “if

the new Judges disagree[d] with an evidentiary ruling excluding

testimony, they ha[d] no way of reversing it.” Id. at 32 n.66. In

fact, the reconstituted Board had full authority to review de novo

and reject any of the original Board’s evidentiary rulings.

Indeed, in each circumstance in which the prior Board had

excluded evidence, the new Board concluded, de novo, that the

exclusion was appropriate. See 2014 Final Determination, 79

Fed. Reg. at 23,122 n.60; id. at 23,123. Moreover, with respect

to the excluded evidence that Intercollegiate principally presses,

which related to the finances of smaller webcasters, the new

Board went on to explain why, even if the evidence were

admitted, it would not support Intercollegiate’s rate proposal.

See id. at 23,123; Order Denying Mot. for Reh’g 4 (J.A. 237);