Live365, Inc. v. Copyright Royalty Bd., 2010 WL 621718 (D.D.C. 2010)
We previously discussed this case in early September. Live365 filed a facial challenge against the CRB and the Librarian of Congress, arguing that the appointment of the Board transgressed Article 2, Section 2, Clause 2 of the U.S. Constitution. In the motion at bar, Live365 sought a preliminary injunction seeking a stay of In Re Digital Performance Right in Sound Recordings and Ephemeral Recordings, Docket No. 2009-1 (CRB Webcasting III). The Defendant’s responded with a motion to dismiss for lack of subject matter jurisdiction. The D.C. District Court denied both.
Defendants motion to dismiss for lack of subject matter jurisdiction
The Defendants argued that the Court had no jurisdiction to hear the challenge because under 17 U.S.C. § 803(d)(1), “[a]ny determination’ of the Copyright Royalty Judges in the Webcaster III proceeding [is vested exclusively with] the District of Columbia Circuit.” The Defendants also contended that the case didn’t come within the exception that permits a district court to exercise jurisdiction over a facial challenge to the constitutionality of a statute under which the agency was proceeding because the plaintiff’s claim was a direct challenge to the Webcaster III proceeding itself.
In this regard, the defendants argue that this case is distinguishable from Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 676 (D.C.Cir.2008), cert. granted, — U.S. —-, 129 S.Ct. 2378 (2009), and Time Warner Entertainment Co. v. FCC, 93 F.3d 957 (D.C.Cir.1996), because here the plaintiff’s suit “is not independent of any administrative proceeding.” Id. Specifically, the defendants claim that, “among other things,” the plaintiff is seeking to have an order issued by the CR Board judges in the Webcasting III proceeding altered to extend a filing deadline imposed by that order. Id. Therefore, the defendants contend that jurisdiction rests exclusively with the District of Columbia Circuit. Id.
Live365 argued that the Court had jurisdiction via Section 1331, as a civil action that arises under the Constitution. The Plaintiff further argued that its claims were independent of the Webcaster III proceeding and that the remedy sought (a stay of the Webcaster III proceeding) didn’t change the fact that its challenge was independent of the proceeding.
The Court found that 17 U.S.C. § 803(d)(1) limited judicial review of determinations of the CRB judges to the District of Columbia Circuit, but not an attack on the legislation which established the CRB. The Court found that the action fell “squarely within the exception recognized by Time Warner and Free Enterprise, which authorize[d the] Court to exercise jurisdiction over a facial challenge to the constitutionality of a statute”:
The government’s argument that this case is distinguishable from Free Enterprise and Time Warner because the Complaint targets a specific ongoing proceeding is unpersuasive. In General Electric, the plaintiff’s due process challenge against the Environmental Protection Agency (“EPA”) pursued in this court was sanctioned by the Circuit despite there having been “ongoing interactions over remediation at several locations” between the parties, because “the lawsuit [did] not challenge any particular action or order by the EPA.” Id. at 191. Thus, although the plaintiff’s injunction request could have the effect of extending the September 29, 2009 deadline set by the CR Board judges and could inevitably impact the progression of the Webcasting III proceeding, their request for the injunction is derived from their constitutional facial challenge to the appointment of the CR Board judges, which is wholly independent of any action actually taken or expected to be taken in the future by the CR Board judges.
Appointments Clause challenge
To briefly review Appointments Clause structures at an oversimplified level, courts have interpreted the Appointments Clause as creating a four-pronged structure for evaluating members of the executive branch: Head of Departments, principal officers, inferior officers and employees. Head of Department and principal officers must be appointed by the President with the advice and consent of the Senate. Inferior Officers must be appointed by either the President or a Head of Departments. Lesser employees do not transgress the Appointments Clause regardless of their appointment method.
Live365 argued that the CRB judges were principal officers who may only be appointed by the President; or in the alternative, that they were inferior officers whose appointment was unconstitutional because the Librarian of Congress was not a Head of Department in the Executive Branch.
Whether the Librarian of Congress is a principal officer
The most interesting issue in App0ointments Clause challenges, for me at least, is how courts struggle with the majority opinion’s finding from Freytag v. Comm’r of Internal Revenue, 501 U.S. 868 (1991) that a Head of Department is confined to heads of “Cabinet-level departments,” which are “limited in number and easily identified.” The Court in Live365 sidestepped Freytag and instead looked to Eltra Corp. v. Ringer, 579 F.2d 294, 300 (4th Cir. 1978), which was issued thirteen years before Freytag, for the presumably intentionally circular proposition that if an officer is appointed by the President and invested with the power to appoint other officers, she is a principal officer:
The Register is appointed by the Librarian of Congress, who in turn is appointed by the president with the advice and consent of the Senate. By the nature of his appointment the Librarian is a[ ] [principal] [o]fficer of the United States, with the usual power of such officer to appoint ‘such inferior [o]fficers (i.e., the Register [and the CR Board judges] ), as (he) think(s) proper. 579 F.2d at 300 (internal citation and quotation marks omitted).
Accordingly, the Librarian is seemingly a principal officer that heads an Executive Department, and therefore, has the power to appoint inferior officers. Thus, given the manner in which the Librarian is appointed and considering many of the functions assigned to him, the plaintiff has not met its burden of showing that there is a substantial likelihood that it will succeed on the merits of its alternative Appointments Clause challenge.
Whether the Librarian is a member of the executive branch
The Court also looked to Eltra for precedence on the issue of whether the Librarian was a member of the executive branch. As the Court noted, the Librarian is appointed by the President with the advice and consent of the Senate; the President, not Congress, has the power to remove the Librarian at will; and while the Library is codified under Title 2 of the United States Code, which addresses specifically the Legislative Branch, “such code-grouping cannot determine whether a given function is executive or legislative.” Eltra at 579 F.2d at 301.
Whether the CRB judges are principal or inferior officers
Live365 argued that the CRB judges were principal officers and must be appointed by the President. The Court found that CRB Judges were “sufficiently subordinate to both the Librarian of Congress and the Register of Copyrights to qualify as inferior officers, and thus, their appointments by the Librarian do not offend the Appointments Clause.”
In both Edmond and Freytag, the judges were held to be inferior officers despite the fact that their duties included taking testimony, ruling on the admissibility of evidence, issuing protective orders, and issuing subpoenas, and the CR Board judges exercise many of those same responsibilities. Thus, the guiding precedent of the Supreme Court seemingly requires the conclusion that despite the level of autonomy the CR Board judges exercise, the degree of direction and supervision exercised over them by the Librarian and the Register renders them inferior rather than principal officers.
Previous posts on an Appointments Clause challenge to the Copyright Royalty Board:
- LIVE365 files Appointments Clause challenge to the Copyright Royalty Board (September 9, 2009)
- Filings from D.C. Court of Appeals review of Copyright Royalty Board order (March 24, 2009)
- Royalty Logic’s Appointments Clause challenge of the Copyright Royalty Judges (March 31, 2009)
- Supreme Court to hear Appointments Clause challenge; Ramifications for the Copyright Royalty Board litigation (May 19, 2009)
- Breaking News: Every pending copyright case lacks jurisdiction (May 20, 2009)
- Supreme Court docket roundup of copyright cases (June 30, 2009)