* The Honorable Wesley E. Brown, Senior District Ju dge, District of

Kansas, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 23 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUNDANCE ASSOCIATES, INC., a Colorado corporation, Plaintiff-Appellee,

v. JANET RENO, Attorney General of the United States, in her official capacity only; UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellants. No. 96-1501

Appeal from the United States District Court

for the District of Colorado (D.C. No. 95-N-2592)
Arthur M. Schwartz (Michael W. Gross, Cindy D. Schw artz, and Gary M. Kramer, with him on the brief) of Arthur M. Schwartz, P.C., Denver, Colorado, for Plaintiff-Appellee. Anne M. Lobell (Jacob M. Lewis with her on the brie fs), United States Department of Justice, Washington, D.C., for Defend ants-Appellants.

Before BALDOCK and BRORBY , Circuit Judges, and BROWN , * District Judge.1 The statute requires the producers of such matterto “ascertain, by

examination of an identification document containin g such information, the performer’s name and date of birth,” to “ascertain any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professiona l name,” and to record this information. 18 U.S.C. § 2257(b).

-2- BRORBY , Circuit Judge.

The Attorney General and the United States Departme nt of Justice (“the government”) appeal the United States District Court for the District of Colorado’s award of summary judgment for Sundance A ssociates (“Sundance”), holding 28 C.F.R. § 75.1(c)(4)(iii) is an invalid i mplementation of 18 U.S.C. § 2257. This court assumes jurisdiction pursuant t o 28 U.S.C. § 1291 and affirms.

Concerned about the exploitation of children by por nographers, Congress enacted the Child Protection and Obscenity Enforcem ent Act of 1988, Pub. L. No. 100-690, Title VII, § 7513(a), 102 Stat. 4187, 4485 -4503 (significantly amended by the Child Protection Restoration and Penalties E nhancement Act of 1990, Pub. L. No. 101-647, Title III, §§ 301(b), 311, 104 Stat . 4808, 4816-17) to require producers of sexually explicit matter to maintain c ertain records concerning the performers 1 that might help law enforcement agencies monitor t he industry. See2With the Protection of Children Against Sexual Exploitation Act of 1977,

Pub. L. No. 95-225, § 2(a), 92 Stat. 7 (1978), Cong ress had already criminalized the production and distribution of materials visual ly depicting minors engaged in sexually explicit conduct. See 18 U.S.C. §§ 2251, 2252.

3 In addition to the record keeping requirements sp ecifically discussed in § 2257, the Attorney General’s regulations require the persons to whom it applies to retain copies of the performers’ identification documents, to cross-index the records by “[a]ll names(s) of each performer, inclu ding any alias, maiden name, -3- 18 U.S.C. § 2257. Violations of these record keepi ng requirements are criminal offenses punishable by imprisonment for up to two y ears for first-time offenders and up to five years for repeat offenders. 2 See 18 U.S.C. § 2257(i).

The record keeping requirements apply to “[w]hoever produces ” the material in question. 18 U.S.C. § 2257(a) (emphasi s added). The statute defines “produces” as to produce, manufacture, or publish any book, magaz ine, periodical, film, video tape or other similar matter and includ es the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted. 18 U.S.C. § 2257(h)(3).
Pursuant to her authority to issue regulations to c arry out the statutory requirements, see 18 U.S.C. § 2257(g), the Attorney General issued r egulations implementing the statute on April 24, 1992. 3 See 57 Fed. Reg. 15017-022 (1992);nickname, stage name or professional name of the pe rformer; and according to the

title, number, or other similar identifier of each book, magazine, periodical, film, videotape, or other matter,” and to maintain the re cords for as long as the producer is in business, plus five years. 28 C.F.R . §§ 75.2(a)(1), 75.3, 75.4. -4- 28 C.F.R. § 75.

The extent to which the record keeping requirements apply to various persons and businesses is one area the regulations attempt to define. Under the regulatory language, the requirements apply to “[a] ny producerof any book, magazine, periodical, film, videotape, or other matter that contains one or more visual depictions of actual sexually explicit condu ct made after November 1, 1990.” 28 C.F.R. § 75.2(a) (emphasis added). The regulation defines “producer”

as: [A] person, including any individual, corporation, or other organization, who is a primary produceror a secondary producer

. (1) A primary produceris any person who actually films, videotapes, or photographs a visual depiction of actual sexuall y explicit conduct. (2) A secondary produceris any person who produces, assembles, manufactures, publishes, duplicates, reproduces, orreissues a book, magazine, periodical, film, videotape, or other matter intended for commercial distribution that contains a visual depi ction of actual sexually explicit conduct. (3) The same person may be both a primary and a sec ondary producer. (4) Producerdoes not include persons whose activities relating to the-5-

visual depiction of actual sexually explicit conduc t are limited to the following: (i) Photo processing; (ii) Distribution; or (iii) Any activity, other than those activities ide ntified in paragraphs (c)(1) and (2) of this section, that doe s not involve the hiring, contracting for, managing, or otherwise arr anging for the participation of the depicted performers. 28 C.F.R. § 75.1(c) (emphasis in original). The ul timate question in this case is whether this definition of “producer” clashes imper missibly with the statutory definition of “produces.”

Sundance publishes five magazines: Odyssey , Odyssey Express , Connexion , Looking Glass , and UnReal People . These magazines print personal or commercial announcements by individuals seeking to contact others with similar sexual interests. The announcements are typically accompanied by pictures, most of which are sexually explicit. The pictures are submitted voluntarily to Sundance by the individuals advertis ing in the magazines. Sundance, therefore, does not participate in the pr oduction of the photographs it publishes in its various magazines.

Facing possible criminal liability as a “secondary producer” under the4The district court also ruled that Sundance had s tanding to challenge the

validity of 28 C.F.R. § 75.1(c) but lacked standing to challenge the validity of any other aspects of the regulation or statute because it could not demonstrate “a realistic danger of sustaining a direct injury” onc e the court declared § 75.1(c)(4)(iii) invalid. Neither of these issues was raised on appeal.

-6- regulation, Sundance filed a complaint seeking decl aratory relief in the district court. The parties filed cross-motions for summaryjudgment in the district court.

The court ruled for Sundance, finding 28 C.F.R. § 7 5.1(c)(4)(iii) to be an invalid implementation of 18 U.S.C. § 2257. 4 Applying Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), the district court found the intent of Congress to be clear from the l anguage of the statute and, consequently, did not inquire into the legislative history of the Act. Finding “[t]he plain meaning of this section of the Restoration Act clearly exempts persons whose activities ‘... include mere distribu tion or any other activity which does not involve hiring, contracting for[,] managin g, or otherwise arranging for the participation of the performers depicted,’” the court determined the scope of the regulation’s coverage to be impermissibly broad er than that intended by the
statute.

The government raises one issue on appeal: whetherthe district court erred5 This is not the only Circuit to have addressed th e validity of 28 C.F.R.

§ 75. Although it did not face the precise questio n raised in this case, the United States Court of Appeals for the District of Columbi a invalidated the regulation’s requirement that producers keep records as long as they remain in business, and the regulation’s record keeping requirement as appl ied to printers, film processors, duplicators, and similar persons who si mply perform services and return the product to the producer. American Library Ass’n v. Reno , 33 F.3d 78, 91, 93 (D.C. Cir. 1994) (upholding the constitution ality of the record keeping requirements as applied to the appellants in that c ase). To the extent any of those persons may be considered “secondary producers” (fo r instance, as assemblers or manufacturers), this ruling supports Sundance’s arg ument that the statute was not meant to apply to everyone who could be considered “to produce, manufacture, or publish” or “duplicat[e], reproduc[e], or reissu[e] .”

-7- in finding 28 C.F.R. § 75.1(c)(4)(iii) to be an inv alid implementation of 18 U.S.C. § 2257. 5

This court reviews the grant of a motion for summary judgment de novo, applying the same legal standard used by the distri ct court. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Summary judgm ent is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. If there is n o genuine issue of material-8-

fact in dispute, then we next determine if the subs tantive law was correctly applied by the district court.” Kaul , 83 F.3d at 1212 (quoting Wolf v. Prudential
Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995)).

The facts in this case are not in dispute. The onl y question is whether the district court was correct in its legal analysis of the statute and regulation. We review de novo a district court’s interpretation of a statute. See United States v.
Diaz , 989 F.2d 391, 392 (10th Cir. 1993).

When faced with a challenge to the validity of a re gulation, we apply the analytical framework provided by the United States Supreme Court in Chevron

. As an initial matter, we decide “whether Congress h as directly spoken to the precise question at issue.” Chevron , 467 U.S. at 842. “‘If the statute is clear and unambiguous “that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed int ent of Congress.” ... The traditional deference courts pay to agency interpre tation is not to be applied to alter the clearly expressed intent of Congress.’” K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988) (quoting Board of Governors of Fed. Reserv. Sys. v. Dimension Fin. Corp. , 474 U.S. 361, 368 (1986) (quoting Chevron , 467 U.S. at 842-43)). If, however, the statute does not speak directly to the question at issue-9-

or is ambiguous, the court, giving considerable wei ght to the agency’s interpretation, must decide if the agency’s answer is “a permissible construction of the statute.” Chevron , 467 U.S. at 843-44.

In this case, we need go no further than the initia l analysis. “[T]he text and reasonable inferences from it give a clear answer a gainst the Government, and that ... is ‘the end of the matter.’” Brown v. Gardner , 513 U.S. 115, 120 (1994) (quoting Good Samaritan Hosp. v. Shalala , 508 U.S. 402, 409 (1993) (quoting Chevron , 467 U.S. at 842)). We agree with the district co urt that “[t]he plain meaning of [§ 2257((h)(3)] clearly exempts persons whose activities ‘... include mere distribution or any other activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted.’”

Under the statutory scheme, the requirements apply to persons or organizations who “produce, manufacture, or publish ” any of the identified matter, including those involved in “duplication, r eproduction, or reissuing” of the matter, but not including those who merely dist ribute or whose activity “does not involve hiring, contracting for[,] managing, orotherwise arranging for the participation of the performers depicted.” 18 U.S. C. § 2257(h)(3). The plain6Without deciding the issue, another Circuit appea red to read the final

clause in § 2257(h)(3) in a similar manner. American Library Ass’n v. Barr , 956 F.2d 1178, 1186 n.5 (D.C. Cir. 1992). In that case , the court stated the 1990 amendment to the statute, which added the clause in issue, “clarified the definition of ‘produces’ to exclude ‘mere distribut ion or any other activity which does not involve hiring, contracting for[,] managin g, or otherwise arranging for the participation of the performers depicted.’” Id.

-10- language of the statute establishes a group possibl y subject to its requirements (including those who “produce, manufacture, or publ ish” and those involved in “duplication, reproduction, or reissuing”) and then excludes from that group those who basically have had no contact with the performe rs (mere distributors and others not involved in the “hiring, contracting for [,] managing, or otherwise arranging for the participation of the performers d epicted”). 6 Id.

The Attorney General’s regulatory definition of pro ducer follows the statute in establishing a class of individuals and organizations possibly subject to the record keeping requirements, but it fails to ex clude persons from the class that the statute requires. The regulation conditions it s exclusion of those “not involve[d in] the hiring, contracting for, managing , or otherwise arranging for the participation of the depicted performers” to person s who are not a primary or secondary producer. 28 C.F.R. § 75.1(c)(4)(iii). The statute makes no such condition. This is not a minor matter, because, as will be explained in detail-11-

below, the practical effect of the regulatory schem e is that the exclusion cannot be applied to anyone. “[A]n agency’s interpretation o f a statute is not entitled to deference when it goes beyond the meaning that the statute can bear.” MCI Telecomm. Corp. v. American Tel. & Tel. Co. , 512 U.S. 218, 234 (1994). An agency’s rulemaking power is not “the power to make law,” it is only the “‘power to adopt regulations to carry into effect t he will of Congress as expressed by the statute.’” Mabry v. State Bd. of Community Colleges & Occupati onal Educ. , 813 F.2d 311, 315 (10th Cir.) (quoting Ernst & Ernst v. Hochfelder , 425 U.S. 185, 213-14 (1976) (further quotation marks an d citations omitted), cert. denied, 484 U.S. 849 (1987).

Attempting to justify its regulation, the governmen t urges upon this court a tortured reading of the statute. The government co ntends the second part of § 2257(h)(3), beginning with “does not include mere distribution,” was actually intended to broaden the scope of the statute. The government’s approach leads us down a path toward Alice’s Wonderland, where up is down and down is up and words mean anything. The words “but does not include ... any other activity which does not involve hiring, contracting for[,] m anaging, or otherwise arranging for the participation of the performers d epicted,” the argument goes, were not intended to “not include” anyone listed ab ove, but were actually7Without explanation, the government asserts “the regulations make clear

that the statute applies to all activities which ‘i nvolve hiring, contracting for[,] managing, or otherwise arranging for the participat ion of the performers depicted[,]’regardless of whether or not the entity is a producer by virtue of being engaged in activities listed in the first clause.” The regulation does not do this. The regulation defines a producer as a primary or s econdary producer. The definitions of primary and secondary producers do n ot include activities that involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers. See 28 C.F.R. § 75.1(c).

-12- intended by implication only to include more activi ties in the definition. This is too much of a stretch. In reviewing statutes, courts do not assume the language is imprecise, as the government would have us do. See United States v. LaBonte , ___ U.S. ___, 117 S. Ct. 1673, 1677 (1997). Rather , we assume that in drafting legislation, Congress says what it means. Id. This is not a case of verbal ambiguity presenting accepted alternative meanings; it is one of an agency twisting words to reach a result it prefers. Altho ugh § 2257(h)(3) was poorly drafted and should never be used as a model of the English language, its intent is clear to this court.

One wonders, looking at the regulation, why the gov ernment did not follow the logic of its own argument when implementing the regulation. 7 If the second clause of the statute actually was intended to broa den the definition of produces to include activities that “involve hiring, contrac ting for[,] managing, or-13-

otherwise arranging for the participation of the pe rformers depicted,” it seems odd that none of those activities are included in t he regulatory definition of producer. The regulation defines a producer as a p erson who is a primary or secondary producer, yet the definitions of primary and secondary producer do not address hiring, contracting for, managing, or otherwise arranging for participation, as they should according to the gove rnment’s arguments. See 28 C.F.R. § 75.1(c)(1)-(3).

Explaining its position, the government states “[t] he structure of the statute, which identifies ‘mere distribution’ as the activity specifically excluded from the definition of ‘produces,’ suggests that Congress di d not intend to exempt actual producers from the definition, but only those whose involvement in production is wholly tangential.” The problem with this position is the statute does not identify “mere distribution” as the only activity specifical ly excluded, but also “any other activity” basically not involving contact with the performers. 18 U.S.C. § 2257(h)(3). The government’s explanation simply ignores the obvious import of the final clause of the statute.

The government also argues the Attorney General pro perly rejected the district court’s reading of the statute because if “[S]ection 2257(h)(3) is8This clause may not narrow application of the statute as significantly as

the government suggests. "[A]rranging for the part icipation of the performers depicted," may well encompass a broad range of acti vities, although that will be for later courts to decide.

-14- interpreted that way, the clause ‘includ[ing] the d uplication, reproduction, or reissuing of any such matter’ would be read out of the statute, because such activities would not necessarily involve the hiring , contracting for, or managing of performers.” This is wrong. The clause would n ot be read out of the statute because it is easy to imagine persons duplicating, reproducing, or reissuing material they originally created who would have had the requisite contact with the performers, and as a result such persons would be s ubject to the requirements of the statute. Just because the exclusionary clause would make the statute inapplicable to some duplicators, reproducers, and reissuers is no reason to justify reading it out of the statute — narrowing the field is the very nature of exclusions.

The government further argues its comprehensive reg ulatory scheme is necessary because of the difficulties involved in e nforcing the record keeping requirements only on those producers who hire, contract for, manage, or otherwise make arrangements for the participation o f sexual performers. 8 “[S]uch considerations address themselves to Congress, not to the courts.” MCI9Because the statute expressly forbids the use of the mandated records,

directly or indirectly, “as evidence against any pe rson with respect to any violation of law,” other than the failure to mainta in the records in the first place, it might only be of limited use in aiding enforceme nt of child pornography laws. 18 U.S.C. § 2257(d)(1); see American Library Ass’n v. Reno , 47 F.3d 1215, 1216 (D.C. Cir. 1995) (Tatel, J., dissenting from denial of suggestion for rehearing in banc).

10One might question whether the statute is narrowl y drawn by mistake or if it was narrowly drawn on purpose, because of a c onsidered congressional determination that it could be subject to constitut ional attack, as an earlier version had been. See American Library Ass’n v. Barr , 956 F.2d at 1186-87; American Library Ass’n v. Thornburgh , 713 F. Supp. 469 (D.D.C. 1989).

-15- Telecommunications, 512 U.S. at 234 (quoting Armour Packing Co. v. United
States , 209 U.S. 56, 82 (1908)). Of course, this court i s sympathetic to the purported 9 goals of this legislation — preventing the sexual exploitation of children. And although it seems the Attorney Gener al has identified a problem with its effective enforcement — that it is drawn i n such a way as to make it narrow in application 10 — neither the court nor the Attorney General has t he authority to rewrite a poor piece of legislation (i f, indeed, that is what it is). That responsibility lies solely with Congress.

Even if we assumed for purposes of this analysis th at the statutory language was unclear, and proceeded to the second stage of Chevron analysis, we would have to find the Attorney General’s regulation to b e an impermissible-16-

construction of the statute. The regulation makes the final part of § 2257(h)(3), beginning with “or any other activity” superfluous. Although we afford deference to the Attorney General’s interpretation of a statu te under her purview, we cannot overlook an interpretation that flies in the face o f the statutory language. See Bridger Coal Co./Pacific Minerals, Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dep't of Labor , 927 F.2d 1150, 1153 (10th Cir. 1991) ("We will not construe a statute in a way that renders words or phrases meaningless, redundant, or superfluous.").

The regulation defines “ produceras any “individual, corporation, or other organization, who is a primary produceror secondary producer .” 28 C.F.R. § 75.1(c) (emphasis in original). Obviously then, if individuals, corporations, or other organizations are not primary or secondary pr oducers, they are not producers for purposes of the regulation. That mea ns, by definition, producers

mustengage in the activities listed in either 28 C.F.R . § 75.1(c)(1) or (2). See 28 C.F.R. § 75.1(c). For the exception to apply, howe ver, one cannot be engaged in the activities listed in 28 C.F.R. § 75.1(c)(1) or (2). See 28 C.F.R. § 75.1(c)(4)(iii). Therefore, the exception is mea ningless; it excepts those persons and organizations to which the regulation d oes not apply in the first place and it does not except any of the persons and organ izations to which the11 This raises a question about the Attorney General ’s specific exclusion

for photo processing. 28 C.F.R. § 75.1(c)(4)(i). Unlike the other specific exclusion, distribution, photo processing is not me ntioned in the statute. If photo processing is one of the activities listed in the d efinition of secondary producer, for example producing or manufacturing (it clearly does not fall into the category of primary producer), what makes it different than many other similar activities for which there is no exclusion? If it does not fa ll into the category of secondary producer, then no exclusion is necessary in the fir st place. Obviously, even the Attorney General recognized Congress did not intend for everyone falling into the categories of production, manufacture, publication, duplication, reproduction, and reissuing to be subject to the record keeping requi rements, or the regulation would not have included a specific exclusion for ph oto processing.

-17- regulation does apply. 11

We have to assume Congress intended its words “but does not include ... any other activity which does not involve hiring, c ontracting for[,] managing, or otherwise arranging for the participation of the pe rformers depicted” to have some meaning and effect. See Reiter v. Sonotone Corp. , 442 U.S. 330, 339 (1979) ("In construing a statute we are obliged to give effect, if possible, to every word Congress used."). Because the government’s co nstruction makes these words mere surplusage, it cannot stand.

The government correctly notes the district court s hould not have held all of 28 C.F.R. § 75.1(c)(4)(iii) invalid. The flaw i n the subsection of the regulation arises from the clause “other than those activities identified in paragraphs (c)(1)-18-

and (2) of this section.” 28 C.F.R. § 75.1(c)(4)(i ii) Our decision, therefore, necessitates only that clause be stricken from § 75 .1(c)(4)(iii).

For the foregoing reasons, the district court’s dec ision is AFFIRMED ; however, we remand to the district court so it may issue a judgment striking from § 75.1(c)(4)(iii) only the clause identified above.