[00:00:00] Speaker 04: Pace number 23-5067, Medical Imaging and Technology Alliance and Advanced Medical Technology Association for the Valence versus Library of Congress and Carla Hayden in her official capacity as Librarian of Congress. [00:00:15] Speaker 04: Mr. Kimberley for the Appellants, Ms. [00:00:17] Speaker 04: Myron for the Appellees. [00:00:27] Speaker 07: Good morning. [00:00:27] Speaker 07: Morning, your honors, may it please the court. [00:00:29] Speaker 07: My name is Michael Kimberly and I represent the appellants. [00:00:33] Speaker 07: Your Honors, if I may, I'd like to start where I think there's common ground among the parties and the district court, and that's that when the Library of Congress uses APA notice and comment rulemaking procedures to promulgate a regulation that's published in the Federal Register, codified in the Code of Federal Regulations, and implements a statute that settles the rights of regulated parties with the force and effect of law, it's acting as a component of the executive branch. [00:01:01] Speaker 07: and not the legislative branch. [00:01:03] Speaker 03: Okay, but let's talk about that because that's somewhat of a hybrid argument that when an agency has certain functions that are executive and then certain functions that are legislative, somehow that we allow the APA to separate that out and then allow there to be APA review as opposed to looking at categorically what the agency is or the entity is. [00:01:30] Speaker 07: Your honor, what this court's cases teach on that front, and I think Washington Legal Foundation is a good starting point, Pickus and Ryan are other examples, is that in determining whether a government entity is an agency for APA purposes, what the court is to look at is the branch of government in which that entity is located. [00:01:51] Speaker 03: So in- They're located in Congress here. [00:01:54] Speaker 07: No, that's the thrust of our point, Your Honor, is after intercollegiate there can be no question that in this respect the library really is a unique agency with feet in both branches of government. [00:02:06] Speaker 07: It is unquestionably exercising executive authority. [00:02:10] Speaker 07: This is the quintessence of the execution of laws to promulgate regulations that implement them. [00:02:16] Speaker 07: It can't be a part of the legislative branch in undertaking that function. [00:02:22] Speaker 07: If it were, we'd have a very serious separation. [00:02:24] Speaker 03: That's what I'm getting at. [00:02:25] Speaker 03: Can you separate or segregate the functions to then determine based on what function that they are performing at that particular time that that determines whether or not [00:02:36] Speaker 03: you come under APA review. [00:02:38] Speaker 07: And so I would say, Your Honor, with respect to agencies that are categorically within the executive branch, the answer is no. [00:02:45] Speaker 07: I think the question with respect to the library is somewhat different. [00:02:47] Speaker 07: You have to ask what role, sort of what hat, if you will, it's wearing at a given time. [00:02:53] Speaker 07: It has a legislative branch hat and it has an executive branch hat. [00:02:58] Speaker 07: It's unique, I think, among agencies, certainly among agencies that this court has considered in any of its prior APA cases. [00:03:04] Speaker 03: But have we ever found that you can, again, segregate these roles and then determine when it's exercising a particular role? [00:03:11] Speaker 03: For example, in the executive branch, that's when it then comes under APA review, when otherwise it also has legislative functions. [00:03:20] Speaker 07: Your honor, I think the relevance of the function that the library is playing is not direct relevance, but rather relevance insofar as it indicates the branch within which the library is with respect to the action that it's undertaking. [00:03:36] Speaker 07: So and I would add that the idea that the APA's definition of agency allows for consideration of function is baked into the definition of itself. [00:03:47] Speaker 07: 5 USC section 701 specifies, for example, that even with respect to purely executive government entities, [00:03:57] Speaker 07: Any that, quote, perform functions conferred by section 1738 and so forth are to be excluded from the APA. [00:04:06] Speaker 07: Those functions relate to things like mortgage insurance. [00:04:11] Speaker 07: So the APA itself accounts for the idea that sometimes function is taken into account. [00:04:18] Speaker 07: The distinction between Congress and the courts and the executive itself embodies an understanding that function is relevant to determining whether a government is an agency or not. [00:04:30] Speaker 03: Do you have other examples of other agencies treated that way? [00:04:33] Speaker 03: Were their functions changed? [00:04:36] Speaker 07: No, Your Honor, because as I said, I think the library is in this respect unique. [00:04:41] Speaker 07: We're not aware of any other agency that has been characterized by this court in binding precedent and other courts as a hybrid entity that at times functions as a part of the legislature and at times functions as part of the executive. [00:04:56] Speaker 07: This court has dealt. [00:04:57] Speaker 06: Kimberly, then why did you not raise your separation of powers claims on appeal? [00:05:02] Speaker 06: Because they were raised below and decided by the district court. [00:05:06] Speaker 06: So I'm curious about that. [00:05:10] Speaker 07: Your honor, it's because we take intercollegiate at face value and we understand the government in this case to acknowledge and agree that the library is in fact a component of the executive branch. [00:05:22] Speaker 06: So what would be the consequences if this court were to hold that the library is an agency for purposes of the APA? [00:05:29] Speaker 06: Then would all of the library's congressional type functions also be subject to APA review? [00:05:36] Speaker 07: I don't think the court has to say that, Your Honor. [00:05:38] Speaker 07: I think it's enough to say that for purposes of resolving this appeal, that when the library is engaged in traditional APA notice and comment rulemaking, [00:05:49] Speaker 07: Again, quintessential executive exercise of executive power that in that role, it is it is an agency for purposes of the API. [00:05:59] Speaker 06: So then how would we decide which of its functions in future cases were executive and which were [00:06:04] Speaker 07: legislative well your honor i think um the four circuits decision in ultra corporation gives the roadmap for understanding how that might work i'd say i i think probably what you're looking at really is just whether the library is engaged in rulemaking um we've not been able to conceive any other circumstance in which the library is is exercising purely executive power [00:06:28] Speaker 06: There's lots of statutory rulemaking authorities, some of which just involve internal matters or matters that perhaps relate to its function as some kind of support entity of Congress. [00:06:39] Speaker 06: Would those actions all become APA reviewable? [00:06:42] Speaker 07: Your honor, I don't think so. [00:06:45] Speaker 06: You don't think so. [00:06:46] Speaker 06: But once we've said it's an agency, then what's the consequence? [00:06:50] Speaker 07: Well, but again, I don't think the court has to say it's an agency for all and every purpose or all purposes. [00:06:55] Speaker 07: I think it's enough to say when it is engaged in APA rulemakings, it's plainly an agency. [00:07:01] Speaker 06: Was that circular APA rulemaking? [00:07:03] Speaker 06: I mean, what about the other rulemakings? [00:07:05] Speaker 07: Well, I would say about the other rulemakings, your honor. [00:07:08] Speaker 07: First of all, those are not undertaken according to notice [00:07:11] Speaker 07: There's not publication in the Federal Register, which is another indication that Congress understood that the library is an agency for this purpose. [00:07:19] Speaker 07: The Congress itself will issue rules and regulations for, say, conduct within the capital complex. [00:07:27] Speaker 07: That is not an exercise of executive authority. [00:07:32] Speaker 07: And we wouldn't say that it is with respect necessarily to the library either. [00:07:36] Speaker 07: about the there's nothing inherent in that in that sort of self-governance and administration that's inherently executive or implementing law the way that a regulation that settles the rights of private regulated parties does. [00:07:51] Speaker 03: But what about when we've come out right and said the Library of Congress is not an agency as defined under the Administrative Procedure Act? [00:07:58] Speaker 01: This court has said that at least three times. [00:08:01] Speaker 01: We're supposed to look at what our colleagues have said [00:08:04] Speaker 01: and sittings before our sittings. [00:08:06] Speaker 01: We've said it definitively, clearly, and explained it in us so that I wasn't confused about what my colleagues in the past thought. [00:08:14] Speaker 01: In fact, I was on one of the cases. [00:08:16] Speaker 01: We have held against you. [00:08:18] Speaker 01: With the precise point that you have now advanced in this court has been rejected at least three times by this court. [00:08:26] Speaker 07: Your Honor, I absolutely must disagree, respectively. [00:08:31] Speaker 07: Clark is the starting point, a case from 1984 that predates the DMCA, which gave the library this executive rulemaking power. [00:08:41] Speaker 07: That case has to be viewed just like ethnic employees has to be viewed through the facts of the case. [00:08:47] Speaker 07: And the facts of that case were an employment dispute concerning a first member retaliation claim. [00:08:53] Speaker 07: did not implicate the library's executive function in any way, shape or form. [00:08:58] Speaker 07: And this court was not presented with the question whether the library, when it is wearing its executive hat, when it is functioning as, in the words of intercollegiate, a component of the executive branch, [00:09:09] Speaker 07: it must be understood as an agency. [00:09:11] Speaker 07: I would say in ethnic employees, it involves the same basic fact pattern. [00:09:16] Speaker 07: It's an employment dispute. [00:09:17] Speaker 07: None of the other cases where Clark is cited for this proposition turns on this proposition at all. [00:09:23] Speaker 07: So I think it would be respectfully incorrect to say that any of the other cases hold it. [00:09:27] Speaker 01: We must be reading different cases. [00:09:29] Speaker 01: There are two other cases in addition to the one you have mentioned in which the court has clearly said that the Library of Congress is not an agency under the APA. [00:09:39] Speaker 01: And it is said in such a way that I was not confused. [00:09:42] Speaker 01: It would not matter about functional. [00:09:44] Speaker 01: No one has accepted this functional analysis that you're offering us now. [00:09:49] Speaker 01: And we have said consistently, and I say to myself, why would I walk away from what my colleagues have said in the past? [00:09:56] Speaker 01: It is not an agency under the APA, period. [00:10:01] Speaker 07: Your honor, there are two responses to that, if I may. [00:10:04] Speaker 07: The first response is this question just wasn't posed in those other cases. [00:10:10] Speaker 07: The DMCA was enacted. [00:10:11] Speaker 07: The DMCA, which accords the librarian executive rulemaking power, was not enacted until after Clark was decided. [00:10:19] Speaker 01: So it just wasn't- Not just Clark. [00:10:21] Speaker 01: There are cases after Clark. [00:10:24] Speaker 07: dealing with the same basic fact pattern as Clark. [00:10:26] Speaker 01: And Your Honor, what I would say beyond that is... None of them limited themselves that way. [00:10:30] Speaker 01: They took the legal question that you're now posing and they gave an answer that's inconsistent with the one that you're offering. [00:10:37] Speaker 07: They rejected it. [00:10:38] Speaker 07: Your honor, the question whether the library was for any one purpose or another an element of the executive branch that constitutes an agency just wasn't presented in those cases. [00:10:51] Speaker 07: It's not surprising that the court wouldn't acknowledge a limit that wasn't brought to its attention at the time and wasn't relevant to the outcome. [00:10:58] Speaker 07: The case, I would add additionally, Your Honor, that we have here the canon in favor of judicial review and the notion that the government's position in this case is that the word Congress appearing in section 701 has to be understood to include an agency that functions as a component of the executive branch. [00:11:19] Speaker 07: We don't think that's a plausible way to read the statute at all. [00:11:23] Speaker 07: But if it were, it certainly isn't the only permissible reading of the statute. [00:11:27] Speaker 07: And therefore, it's one that this court needs to resolve under the candidate in favor of judicial review in favor of recursion. [00:11:33] Speaker 06: Mr. Kimberly, so it seems to me when the APA was enacted in the 40s, the Library of Congress did not have any executive functions or executive [00:11:43] Speaker 06: powers that were assigned to it. [00:11:46] Speaker 06: And our cases recognize that broadly speaking, in some kind of historical sense, the Library of Congress is part of the Congress or some kind of auxiliary to Congress. [00:11:56] Speaker 06: And then it seems to me, as you've suggested, the Library has been given making authority and given executive powers by Congress in the Copyright Act and the DMCA. [00:12:07] Speaker 06: And so I think you have to have an account of which one of these things [00:12:12] Speaker 06: Trumps, right? [00:12:13] Speaker 06: Is it the fact that they now have executive power and so therefore are an agency within the meaning of the EPA? [00:12:19] Speaker 06: Or do we still understand it as somehow part of the Congress which is exempted from the APA? [00:12:25] Speaker 06: And I think those two things are in tension in part because of subsequent statutes and subsequent powers. [00:12:31] Speaker 07: that have been assigned to the library and your honor if you're inclined to look at it look at it in that categorical way that it's got to be one or the other i think after enactment of the dmca and after this court's opinion and intercollegiate there can be no question but that it is a component of the executive branch and not the legislative well i think it could be a component of the executive branch and then possibly still exempted from the definition of agency because it's part of the congress [00:13:01] Speaker 06: And I think your honor, there are other exemptions like other there are other entities that exercise executive power that are also exempted from APA review. [00:13:10] Speaker 06: So I think you have to have some account of why the library has sort of fallen out of that. [00:13:16] Speaker 06: congressional exemption category. [00:13:19] Speaker 07: And the answer simply is the allocation to it of executive rulemaking power. [00:13:23] Speaker 07: Congress is even, so take as given for purposes of this argument that prior to the assignment to the library of executive rulemaking functions, it was a part of the Congress. [00:13:38] Speaker 06: Yeah, I think just assume that. [00:13:39] Speaker 07: Yeah, just assume for the sake of argument. [00:13:42] Speaker 07: Congress can convert the library into [00:13:45] Speaker 07: a executive agency by allocating to it powers that cannot be exercised by an element of the Congress and must be exercised only by elements of the executive branch. [00:13:58] Speaker 07: I would add we have other textual clues here that Congress would not have intended to exclude the library from judicial review in circumstances like this. [00:14:06] Speaker 07: The librarian herself is appointed by and removable by the president, suggesting that control over this agency is within the executive branch. [00:14:14] Speaker 07: And again, it's utilization of the Code of Federal Regulations and the Federal Register, which are two things that Congress has said very expressly are things that only executive agencies within the executive branch are empowered to do. [00:14:29] Speaker 07: There's no question the library is engaging in that kind of traditional notice and comment rulemaking using the Federal Register and the Code of Federal Regulations. [00:14:36] Speaker 07: There's a strong presumption in favor of judicial review of actions like that. [00:14:41] Speaker 07: And even if it's conceivable that the word Congress could be read by this court to cover the library, it's certainly true that it also can be read not to cover the library. [00:14:50] Speaker 07: And under the canon favoring judicial review, that is the interpretation the court is duty bound to adopt. [00:14:56] Speaker 06: And so do you think we should read the Copyright Act and the DMCA as making those regulations APA reviewable? [00:15:05] Speaker 06: And do you think that's clear? [00:15:07] Speaker 06: I think it is clear, Your Honor, that the DMCA doesn't say anything about APA review, unlike the Copyright Act. [00:15:14] Speaker 07: No, it doesn't. [00:15:15] Speaker 07: But what it does is clearly assign to the librarian purely quintessentially executive rulemaking functions, which are presumptively subject to the APA. [00:15:27] Speaker 07: I submit no reason to think that in assigning to the library tasks that only agencies can do, such as notice and comment rulemaking using the Federal Register, [00:15:40] Speaker 07: culminating in the publication of a codification of a rule in the Code of Federal Regulations that the Congress would have had anything else in mind. [00:15:48] Speaker 07: And again, that's why this court has a clear statement rule for statutes that deny judicial review of agency action. [00:15:55] Speaker 07: There would have to be a clear statement in the DMCA or elsewhere [00:15:58] Speaker 07: that Congress didn't want this sort of rulemaking reviewed. [00:16:02] Speaker 07: And we know that Congress knows how to do that. [00:16:04] Speaker 07: For example, it exempts the postal service from judicial review under the APA using clear, plain language to that effect. [00:16:11] Speaker 07: There's no such language here with respect to the library. [00:16:14] Speaker 07: We know after intercollegiate that it is a component of the executive branch that is presumptively subject to judicial review. [00:16:19] Speaker 03: But at least here we have the U.S. [00:16:21] Speaker 03: copyright laws that make the Copyright Office a subsidiary of the Library of Congress. [00:16:26] Speaker 03: And that's subject to the APA. [00:16:28] Speaker 03: And, you know, coming up as a subset of the Library of Congress, so would it not be almost duplicative, you know, to allow the Library of Congress to also be subject to APA review when we would already have that situation covered? [00:16:42] Speaker 03: Yeah. [00:16:43] Speaker 07: Your Honor, I don't think so. [00:16:45] Speaker 07: In part because we don't understand at the time that Section 701E was adopted that the Librarian was exercising [00:16:53] Speaker 07: of purely executive rulemaking powers the way that it does today. [00:16:56] Speaker 07: 701E was part of a broader sort of clean-up statute for the administration of copyright laws in the Library of Congress as a whole. [00:17:05] Speaker 07: It's what established statutorily the Copyright Office began with. [00:17:10] Speaker 07: But 701E, more importantly, says that all actions of the copyright office are subject to judicial review. [00:17:17] Speaker 07: Our position is that the library is a hybrid. [00:17:20] Speaker 07: There are some roles in which, as this court said in intercollegiate, there are some roles in which it's best understood as a congressional agency, some in which it's understood as an executive agency. [00:17:30] Speaker 07: Our position is when it is acting as an executive agency, engaging in that [00:17:36] Speaker 07: notice and comment rulemaking, that then it is subject to judicial review, which is not necessarily covered by 701E. [00:17:43] Speaker 03: And you kind of suggest, I'm sorry, that the library is required to publish in the Federal Register, but that's not really true, is it? [00:17:51] Speaker 07: No. [00:17:52] Speaker 07: No, I misspoke if I said it's required to publish in the Federal Register. [00:17:56] Speaker 07: It does publish in the Federal Register. [00:17:58] Speaker 07: It has all along run to the eighth triennial rulemaking every single time. [00:18:04] Speaker 07: It has published notices of inquiry, notices of proposed rulemakings, and final rules in the Federal Register. [00:18:11] Speaker 07: This is a clear indication that, [00:18:14] Speaker 07: Every other element of the executive branch understands the library to be an executive agency for purposes of the Federal Register Act, which bears the same substantive meaning of the term agency as does the APA, as this court held in Washington Legal Foundation. [00:18:29] Speaker 06: Mr. Kimberly, is it your view after intercollegiate that once this court said that the library is a department, you know, and that the librarian is the head of a department within the executive branch, then by definition, the library cannot be part of the Congress within the meaning of the APA? [00:18:48] Speaker 07: Within the meaning of the APA, yes, your honor, at least with respect to, well, maybe the way to think about it is that it's always an agency, but when it's, you know, when it's serving those legislative functions, those legislative functions, perhaps there are some different characteristic that make it non-reviewable under the APA. [00:19:09] Speaker 07: I think it's. [00:19:12] Speaker 06: Are those areas in which its actions may be non reviewable is are they non reviewable because they're legislative or simply because their actions that would, you know, even if they were undertaken. [00:19:24] Speaker 06: you know, by the Department of Agriculture would be non-reviewable because they're just not reviewable agency action. [00:19:29] Speaker 07: Right, because they aren't final actions that sort of set the rights of parties in a legally enforceable way. [00:19:36] Speaker 07: I think that's probably the way to think about it. [00:19:38] Speaker 07: If you're inclined to think about the library as either in the executive branch or in the legislative branch, and therefore either as an agency or not, I think that's the way to think about it. [00:19:48] Speaker 07: And there's still reason to think those sorts of actions would not [00:19:51] Speaker 06: I'm not sure that we're allowed to think of something as being a hybrid entity. [00:19:55] Speaker 06: I mean, the Constitution has three separate branches. [00:19:58] Speaker 06: So I mean, I'm not even sure that we can. [00:20:01] Speaker 06: I mean, do you think it's within the bounds of the Constitution to think about some entity as being both part of the legislative branch and part of the executive branch? [00:20:10] Speaker 07: You know, Your Honor, I don't think it is squarely foreclosed. [00:20:13] Speaker 07: I think about the vice president, for example, obviously an official within the executive branch. [00:20:17] Speaker 06: That's within the Constitution. [00:20:21] Speaker 06: the vice president wears two hats. [00:20:23] Speaker 06: It is. [00:20:23] Speaker 07: And look, I don't want to argue against myself here, because I think if the library is one thing or the other, after the DMCA and this court's decision in intercollegiate, as I say, it's got to be an executive branch. [00:20:35] Speaker 07: I guess where I'm going is I'm not sure the court has to go that far in this case. [00:20:40] Speaker 07: We're happy for the court to take that approach if that's what it prefers. [00:20:44] Speaker 06: It's interesting. [00:20:44] Speaker 06: I mean, the Supreme Court used to say that the independent agencies were [00:20:49] Speaker 06: quasi-judicial or quasi-legislative, and there are nine justices on the Supreme Court all agree now that independent agencies are within the executive branch. [00:20:57] Speaker 06: I wonder if there's some analogy with the Library of Congress. [00:21:01] Speaker 07: There may be, Your Honor. [00:21:02] Speaker 07: We take our clue from Intercollegiate, which describes the Library in some circumstances as a quote-unquote congressional agency. [00:21:10] Speaker 07: You know, if the court feels that the next step is the appropriate one in acknowledging that the library is a component of the executive branch in all circumstances, again, that's just a different road to the same outcome, which is at bottom, this is textbook, like perfect example, executive agency rulemaking that the Congress responsible for the APA, of course, would have understood to be subject to judicial review under [00:21:39] Speaker 07: the APA's judicial review provision. [00:21:41] Speaker 03: And just so that I'm clear because we have talked about cases in which this court has already decided that the Library of Congress is not an agency. [00:21:50] Speaker 03: What is your opinion about [00:21:52] Speaker 03: how we deal with what is already precedent in this court. [00:21:55] Speaker 07: So I think you can look at cases that predate the DMCA. [00:22:01] Speaker 07: And I believe that includes, I'm sorry, I'm forgetting the publication date of ethnic employers, but it certainly includes Clark. [00:22:08] Speaker 07: I believe it also includes ethnic employers, which was a 1990s decision. [00:22:12] Speaker 07: And say simply that the DMCA is an intervening development that, as the court recognized, an intercollegiate sort of changes the character of the library and allows this court to recognize the clerk has since been abrogated. [00:22:30] Speaker 07: That would be an outcome we'd be happy to have the court reach. [00:22:32] Speaker 07: We think it would be appropriate and consistent with the principles that we've briefed. [00:22:36] Speaker 02: So you're offering to write the order? [00:22:37] Speaker 02: I'm sorry? [00:22:38] Speaker 02: You're offering to write the order? [00:22:40] Speaker 07: Sure, if you'd like. [00:22:42] Speaker 07: In all events, whether it's a more modest approach that recognizes consistent with intercollegiate, with some of the language suggestive in intercollegiate that really got feeding two branches instead only one. [00:22:57] Speaker 07: Either way, I think Clark doesn't control this case because it involved different facts. [00:23:03] Speaker 07: It did not involve the library acting as a component of the executive branch. [00:23:08] Speaker 07: And so these issues just weren't before the court in that case or in ethnic employees. [00:23:14] Speaker 07: And that the DMCA and intercollegiate or intervening developments that that abrogate that line of precedent. [00:23:22] Speaker 00: Thank you. [00:23:23] Speaker 00: Thank you. [00:23:42] Speaker 05: Good morning, may it please the court, Laura Myron for the government. [00:23:45] Speaker 05: There are two basic propositions that resolve this case. [00:23:48] Speaker 05: First is that an entity either is or isn't an agency for purposes of the APA. [00:23:53] Speaker 05: And the second is that this court held 40 years ago in Clark that the Library of Congress. [00:23:58] Speaker 05: The APA provides a textual definition of an agency that makes fairly clear that it's an entity by entity analysis. [00:24:05] Speaker 05: It doesn't speak to what particular function the entity is carrying out in any given case. [00:24:11] Speaker 05: And that definition has to mean something, and it means the same thing without regard to the claim before. [00:24:17] Speaker 05: Ms. [00:24:17] Speaker 05: Myron, don't shoot. [00:24:18] Speaker 06: I mean, what is the government's position? [00:24:21] Speaker 06: It seems now after the Copyright Act and the DMCA that the library meets the definition of agency as exercising authority of the government of the United States. [00:24:35] Speaker 06: I guess, do you dispute that proposition that it meets that definition? [00:24:39] Speaker 06: I mean, before we get to whether it's within one of the exemptions, doesn't the Library of Congress now meet the primary definition of what an agency is? [00:24:48] Speaker 05: Well, I guess I'm not sure why the cop, if you think the question is whether, you know, does the entity, is it an authority of the government of the United States? [00:24:57] Speaker 05: It has always been an authority of the government of the United States. [00:25:01] Speaker 05: I'm not sure that's true. [00:25:02] Speaker 06: I mean, our cases describe authority of the United States as being, you know, basically an executive entity. [00:25:07] Speaker 06: I mean, if you look at cases like Dong versus Smithsonian and Meyer versus Bush, right, authority of the United States means [00:25:15] Speaker 06: exercising executive power, issuing final and binding rules that affect private parties. [00:25:21] Speaker 06: So the Library of Congress didn't meet the definition, the primary definition of agency when the APA was enacted. [00:25:29] Speaker 05: Well, I disagree with that, Your Honor, and I think 701 of the Copyright Act is particularly good textual evidence of that. [00:25:35] Speaker 05: I mean, the Copyright Office was engaging in a number of functions that I think plaintiff would describe to you as executive functions prior to the 1976 Copyright Act. [00:25:47] Speaker 05: In fact, there was a hearing before the relevant committee in which the question was raised about the fact that the APA did not apply to the Copyright Office. [00:25:54] Speaker 05: And Congress responded to that by enacting 701, which says that all actions of the copyright office shall be subject to the APA. [00:26:02] Speaker 05: It did not say that the Library of Congress shall be an agency for purposes of the APA. [00:26:08] Speaker 05: And I think 701 also suggests that first, Congress didn't view it as an agency, and second, that it knows how to subject something to the APA expressly [00:26:17] Speaker 06: when it chooses to use that. [00:26:18] Speaker 06: So I'm glad you brought up 701 because 701, the Copyright Office has rulemaking authority and the actions of the register of copyright are subject to APA review. [00:26:30] Speaker 06: However, the rulemakings by the register are all subject to the approval of the librarian. [00:26:37] Speaker 06: So doesn't that mean that under the copyright, the librarian's approvals of copyright regulations are subject to APA review? [00:26:49] Speaker 05: We'll know, Your Honor. [00:26:50] Speaker 05: The establishment of the regulations are subject to APA review because that's an action of the Register. [00:26:56] Speaker 06: But the regulations can't become final until they've been approved by the Register. [00:27:00] Speaker 05: Well, there hasn't been any claim in this case that, you know, [00:27:04] Speaker 05: there's, you know, should be an APA challenge to the approval of a copyright office regulation and to say that the library wasn't an agency. [00:27:14] Speaker 06: And, I mean, I don't know what that would mean actually for review ability of regulations that require the approval of the librarian. [00:27:20] Speaker 05: Well, respectfully, Your Honor, this Court has already said that the Library of Congress is not an agency. [00:27:25] Speaker 05: It said so several times, all of which post-state enactment of Section 701 of the Copyright Act and in fact rely in part on that particular provision as textual evidence that the Library of Congress is not itself an agency subject to the APA. [00:27:41] Speaker 06: Still the Copyright Act so says that these copyright regulations are subject to APA review. [00:27:48] Speaker 06: And those regulations need the approval of the librarian and then Congress comes along with this kind of smaller copyright act the DMCA, which gives the library and direct making authority. [00:27:58] Speaker 06: Isn't there some maybe natural assumption that Congress wants those regulations those copyright regulations to also be reviewable under the API. [00:28:07] Speaker 05: Well, I don't think you can reverse engineer the definition of an agency based on the use of the term rulemaking in the DMCA. [00:28:15] Speaker 05: I mean, if Congress had said, and these rulemakings shall not be subject to the APA, there's no reason to think there would be any problem with that. [00:28:24] Speaker 06: And they could have said that, but they didn't. [00:28:27] Speaker 06: And they had already created a general structure where copyright regulations were reviewable, even regulations [00:28:32] Speaker 06: that require the approval of the librarian. [00:28:34] Speaker 06: So they're not just promulgated by the register of copyrights. [00:28:38] Speaker 06: They are put into effect after the approval. [00:28:42] Speaker 05: of the librarian. [00:28:43] Speaker 05: Well, there's certainly no question here, and perhaps I'm misunderstanding. [00:28:46] Speaker 05: But there's certainly no question that the rulemaking at issue here should be subject to APA review because it's an action of the Copyright Office. [00:28:55] Speaker 05: The statute makes very clear that the Copyright Office submits a recommendation to the librarian who makes the final determination. [00:29:01] Speaker 06: That's exactly my argument. [00:29:02] Speaker 06: My argument is that there are a series of statutes here. [00:29:05] Speaker 06: We have the APA in the 1940s. [00:29:06] Speaker 06: We have the Copyright Act. [00:29:08] Speaker 06: We have the DMCA. [00:29:09] Speaker 06: And then there's a question about under the DMCA, [00:29:12] Speaker 06: Should the regulations issued by the librarian be reviewable? [00:29:16] Speaker 06: You know, under the APA and maybe one way of reading all of these statutes together. [00:29:21] Speaker 06: The best reading of reading them all together is that the librarians copyright regulations are reviewable under the APA. [00:29:30] Speaker 05: So I think your argument, Your Honor, is a suggestion that an entity sometimes is an entity, that the Library sometimes may be an entity for purposes of the APA and sometimes isn't, because certainly I don't take that to sweep into it all of the things that we've discussed in our brief that the Library of Congress does that wouldn't be subject to the APA. [00:29:53] Speaker 05: And that argument simply is irreconcilable with [00:29:56] Speaker 05: of the APA, which defines an agency as an entity. [00:30:00] Speaker 05: And also with the way that this court has understood that question in cases like Washington Legal Foundation and Pickus and Ryan, in which the court has said that the question of whether something is or isn't an agency for purposes of APA review [00:30:14] Speaker 06: Is an entity by entity suggesting is maybe maybe this court doesn't need to reach the question of whether it's an agency under the APA, but could reach the question of whether these types of regulations under the DMCA are reviewable under the APA. [00:30:29] Speaker 06: Because there are things that are subject to APA review in entities that may not otherwise the agencies. [00:30:36] Speaker 05: Respectfully, I just don't see how you get there, given this court's cases in Clark, which say that the Library of Congress is not an agency. [00:30:44] Speaker 05: And the particular text of the APA, which provides for judicial review of agency action, it doesn't sort of say wherever there's rulemaking that that shall be subject to APA review. [00:30:55] Speaker 05: It says there shall be review of final agency action. [00:30:59] Speaker 06: I think maybe you're not. [00:31:00] Speaker 06: responding to my question, which is that Congress has said the copyright regulations are subject to APA review. [00:31:06] Speaker 06: Whether or not the library is an agency, they've said that these rule-makings are subject to APA review. [00:31:17] Speaker 06: And so you're saying that, like, why shouldn't we read the DMCA to kind of include that sort of APA review of copyright regulations? [00:31:26] Speaker 06: Because this is effectively a copyright regulation. [00:31:29] Speaker 05: No, respectfully, Your Honor, the text of the statute is very clear that it is not a copyright regulation, that it is a determination by the Librarian of Congress. [00:31:37] Speaker 05: That is an important difference because the Librarian makes that determination on recommendation of the Copyright Office as provided by the statute. [00:31:45] Speaker 05: But I don't think it's fair to read the rulemaking at issue here as a regulation of the Copyright Office. [00:31:51] Speaker 05: We're certainly not contesting that regulations of the Copyright Office issued by the Register of Copyrights, established by the Register of Copyrights, are subject to APA review. [00:32:00] Speaker 05: That's provided for in 2001. [00:32:02] Speaker 05: But I don't think you can make this additional jump to think that this is a regulation of the Copyright Office. [00:32:10] Speaker 05: because the statute very clearly vests the determination with the Librarian of Congress. [00:32:15] Speaker 05: And as this Court has said, for nearly 40 years, the Librarian of Congress is not, and the Library of Congress is not an agency subject to the APA. [00:32:25] Speaker 05: Congress has never disturbed that. [00:32:27] Speaker 05: Section 701 provides additional textual evidence to support the conclusion that Congress used the actions of the Copyright Office as [00:32:35] Speaker 05: separate from the actions of the librarian and subject to APA review. [00:32:41] Speaker 05: And so I just don't see how you get to a conclusion that these particular regulations or rule makings are subject to APA review is particularly where the APA does not contemplate that entities will sometimes be an agency for purposes of the statute and sometimes not. [00:33:00] Speaker 03: And I want to get back to that the Copyright Office is actually just making a recommendation. [00:33:04] Speaker 03: It's not final. [00:33:05] Speaker 05: Yes, Your Honor, in this, the text of the DMCA is very clear that the Copyright Office submits a recommendation with consultation with some other parts of the Department of Commerce and that the librarian makes the determination independent of the recommendation or, you know, considering the recommendation but sort of not as part of the Copyright Office's actions here. [00:33:27] Speaker 03: And does it matter in this analysis on agency that the library gets its appropriations from the legislative branch? [00:33:35] Speaker 05: It's certainly relevant, Your Honor. [00:33:36] Speaker 05: I mean, that is an argument that was put before the court in Clark and cases like that and supports the court's conclusion that the library is not an agency for purposes of the statute. [00:33:51] Speaker 05: The question whether something is part of the executive branch or the legislative branch for constitutional purposes is separate from the question of whether it's part of [00:34:00] Speaker 05: the Congress for purposes of the statutory provisions in the APA. [00:34:04] Speaker 05: And so other statutory provisions like the legislative appropriation, like Title II, are particularly relevant to the statutory analysis. [00:34:14] Speaker 05: And I think inform the court's decision in Clark and the subsequent cases that the Library. [00:34:19] Speaker 05: It's not an agency. [00:34:21] Speaker 01: Does the Librarian have authority to make the determination that's in dispute here without a recommendation from the Copyright Office? [00:34:29] Speaker 01: The facts are they never came. [00:34:32] Speaker 01: Can the librarian just act? [00:34:34] Speaker 05: The statute provides that the librarian shall make the determination upon recommendation of the register of copyrights. [00:34:41] Speaker 05: You know, it doesn't say anything about whether the librarian must adopt the recommendation or can disagree with it and certainly the librarian is free to [00:34:49] Speaker 05: disagree with the recommendation if she does not agree with what's been recommended by the Copyright Office. [00:34:56] Speaker 05: And I think that supports what I think Your Honor is getting at, that the determination is very clearly by statute vested with the librarian and not with the register. [00:35:09] Speaker 06: suggested that, you know, Congress, you know, the question is what Congress has done with respect to, you know, how it views the Library of Congress. [00:35:18] Speaker 06: I mean, you know, one way to think about this is that, you know, when the APA was enacted, [00:35:23] Speaker 06: the library was some kind of support entity for Congress. [00:35:28] Speaker 06: And now Congress has actually given the library fairly substantial executive powers. [00:35:35] Speaker 06: And maybe by statute then, Congress has over time taken it out of the Congress for purposes of the APA. [00:35:44] Speaker 05: I don't think so, Your Honor. [00:35:45] Speaker 05: I mean, certainly that seems like an argument that Clark is wrong because the Copyright Act itself forgates Clark. [00:35:52] Speaker 06: Yeah, but Clark wasn't dealing with any of these issues. [00:35:54] Speaker 06: I mean, it wasn't, you know, it's not a well-developed, there's not well-developed reasoning. [00:35:59] Speaker 06: And even our subsequent cases like Washington Legal Fund suggest that maybe Clark was mistaken, you know, talking about the judiciary. [00:36:07] Speaker 06: Ultimately in Washington Legal Fund, we relied, you know, the circuit relied on a statute, the SRA. [00:36:14] Speaker 06: in making its determination. [00:36:16] Speaker 06: It didn't rely on Clark and its reasoning. [00:36:20] Speaker 05: Well, I guess I would also point you to section 701 of the Copyright Act, which shows that even when Congress was enacting the Copyright Act, it recognized that the Library was not an agency for purposes of the APA and gave APA review. [00:36:36] Speaker 05: It included the Copyright Office itself as part of the APA. [00:36:40] Speaker 06: So you could view it as maybe being superfluous or you could just view it as kind of belt and suspenders. [00:36:45] Speaker 06: Like, of course, you know, we're giving them this kind of [00:36:47] Speaker 06: important rulemaking authority that affects private rights and obligations and so we're going to be very clear that that's going to be subject to the APA. [00:36:56] Speaker 05: Respectfully Your Honor, the statutory interpretation principles of this court and the Supreme Court are that we don't interpret provisions like that to be purely superfluous and there doesn't seem to be [00:37:08] Speaker 05: a reason to think that Congress would do that and, you know, prior to the enactment of the. [00:37:13] Speaker 06: Superfluous, but I mean, I think, you know, you're reading it to be that there's a negative implication that otherwise the APA would not have applied to the copyright office. [00:37:23] Speaker 06: I'm not sure that the negative implication is the only one. [00:37:27] Speaker 06: only way to read Section 701. [00:37:29] Speaker 05: Well, respectfully, that's how this court has understood the application of the APA that the Library of Congress is not an agency for purposes of the APA. [00:37:40] Speaker 05: But not since Intercollegiate. [00:37:43] Speaker 05: I don't think intercollegiate changes the analysis in any meaningful respect because the question before the court in that case was whether the Library of Congress is an executive department for purposes of the Appointments Clause, for purposes of the Constitution. [00:38:00] Speaker 05: The Supreme Court in cases like LeBron has recognized that [00:38:04] Speaker 05: In entities constitutional status is a separate question from its statutory status and in fact part of the argument in that case. [00:38:12] Speaker 05: Was that the Library of Congress is for statutory purposes funded through title to that it is receives its appropriation through the legislative appropriation that it's not subject to the APA and. [00:38:22] Speaker 05: And what the court said was that for purposes of the appointments clause, that it is an executive department and it looked to the fact that the Librarian of Congress had been appointed by the president dating back to the 1870s. [00:38:35] Speaker 05: The appointment by the president is not a new change in the law since the clerk in those cases have been decided. [00:38:42] Speaker 05: And there's no question that executive departments or parts of the executive branch might be exempt from the APA in the definition of agency or otherwise not subject to APA review. [00:38:56] Speaker 06: And so I just don't see how that gets you to... I think that's true that the constitutional statutory meetings are distinct. [00:39:04] Speaker 06: But once this court has said that the library is a department, [00:39:09] Speaker 06: within the executive branch. [00:39:11] Speaker 06: How can it, for statutory purposes, be part of the Congress and APA? [00:39:17] Speaker 05: Again, I don't think that the question of whether it's a constitutional part of the executive branch reflects on how Congress decided to treat it as part of the statutory definition of an agency within the APA. [00:39:32] Speaker 05: And certainly, that argument would require this court to consider cases like Clark and ethnic employees and Washington Legal Foundation to be wrongly decided, which I don't think is an argument this court can entertain in this [00:39:49] Speaker 06: Thank you. [00:39:49] Speaker 06: Always have any further questions? [00:39:52] Speaker 04: Okay, Yes. [00:39:53] Speaker 04: Thank you. [00:39:53] Speaker 06: Thank you. [00:40:03] Speaker 07: I think as the case is now presented to the court, it really involves two questions. [00:40:09] Speaker 07: The first is whether the outcome here is controlled by precedent, and the second is if it isn't controlled by precedent, is the library an agency within the meaning of 701b2? [00:40:21] Speaker 07: On the first question, just two cases have actually held that the library isn't an agency. [00:40:27] Speaker 07: Those are Clark and ethnic employees. [00:40:30] Speaker 07: Clark was decided in 1984. [00:40:31] Speaker 07: Ethnic employees was decided in 1985. [00:40:35] Speaker 07: Washington Legal Foundation was a case about the Sentencing Commission, not about the library. [00:40:40] Speaker 07: What it had to say about the library was dictum. [00:40:43] Speaker 07: But in any event, it was decided in 1994. [00:40:46] Speaker 07: All three of those cases predate the Digital Millennium Copyright Act. [00:40:50] Speaker 07: all three cases predate this court's decision in intercollegiate. [00:40:54] Speaker 07: And I think it's easy enough to say that those cases therefore have been abrogated as recognized by implication in intercollegiate. [00:41:01] Speaker 07: So that leads to the second question. [00:41:04] Speaker 07: If it isn't controlled by precedent, what's the right outcome? [00:41:07] Speaker 07: And on that score, the answer depends on whether the library, for purposes of this case in particular, or more generally as a categorical matter, is a component of the executive branch. [00:41:18] Speaker 07: If it is a component of the executive branch, then the outcome must be that its executive rulemakings are subject to judicial review, because to say otherwise puts the government in the very uncomfortable position of saying that when Congress used the word Congress, [00:41:35] Speaker 07: it meant to include components of the executive branch exercising executive power. [00:41:40] Speaker 07: Now, whatever you might say about that position surely is not compelled by the statutory text. [00:41:45] Speaker 07: And because we have the presumption in favor of judicial review at play in this case, that means the court has to consider our position and whether it is an alternative reasonable position that better accords with the presumption that agency rulemakings are subject to review in Article III courts. [00:42:02] Speaker 07: Our position is at least reasonable that when Congress said Congress, it didn't mean to include agencies like the library exercising executive power, undertaking executive rule makings that is confirmed further by the Federal Register Act under which the library is by definition of that act an agency because it uses the Federal Register and the Code of Federal Regulations [00:42:25] Speaker 07: all pointing, in our view, to the clear text conclusion that the library is an agency and at the very least to the conclusion that the presumption in favor of judicial review requires. [00:42:38] Speaker 07: That was it. [00:42:39] Speaker 07: Thank you. [00:42:40] Speaker 06: Thank you, Mr. Kimberly. [00:42:41] Speaker 06: The case is submitted.