Strike Two for Perlmutter in Bid to Return to Copyright Office

IPWatchdog CEO and Founder Gene Quinn speaks with Shira Perlmutter during IPWatchdog LIVE 2024.

The U.S. District Court for the District of Columbia on Wednesday denied Register of Copyrights Shira Perlmutter’s request for a preliminary injunction blocking her removal from office by President Donald Trump.

Perlmutter filed a complaint against Trump on May 22, calling his attempt to remove her from her post “unlawful and ineffective.” Trump first fired Librarian of Congress Carla Hayden on May 9, two days before it fired Perlmutter, and named Deputy Attorney General at the U.S. Department of Justice, Todd Blanche, as acting Librarian of Congress. Perlmutter’s complaint charged that the President “has no authority to name a temporary replacement Librarian of Congress, much less name a high-ranking DOJ official whose presence offends the constitutional separation of powers.”

The complaint names Blanche; Paul Perkins, associate deputy attorney general, who was appointed acting Register; Sergio Gor, the Director of the White House Presidential Personnel Office; Trent Morse, Deputy Assistant to the President and Deputy Director of the White House Presidential Personnel Office; the Executive Office of the President; and Donald J. Trump as defendants.

On May 28, the court issued a bench ruling denying a request for a temporary restraining order (TRO) against Perlmutter’s removal, but gave her additional time to consider filing a motion for preliminary injunction. Perlmutter’s Motion for a Preliminary Injunction was filed June 10. In it, she argued that Trump’s removal has caused her irreparable harm “and will continue to do so absent judicial intervention.” Specifically, according to the D.C. court’s opinion, Perlmutter said her case constitutes a “genuinely extraordinary situation” because: “(1) she has been deprived of her ‘statutory right to function’ as Register of Copyrights…; (2) she ‘remains Register of Copyrights and is therefore required to fulfill her statutory duties,’…; and (3) ‘[i]rreparable harm to the Library of Congress and Copyright Office will frustrate [her] ability to resume her duties.’”

However, the D.C. court dismissed these concerns, explaining first that Perlmutter may still be restored to her position if she wins on the merits. While Perlmutter argued that “the Copyright Office is in the middle of producing a multi-volume report on copyright and artificial intelligence for Congress and other stakeholders and that her ability to ‘complete’ that report ‘will be forfeited during the months-long pendency of this lawsuit,” the court said that adopting such reasoning would “establish irreparable harm in every wrongful-termination case.”

The court distinguished Perlmutter’s case from Berry v. Reagan (D.D.C. Nov. 14, 1983) for a number of reasons. In Berry, the court reinstated the plaintiffs to the Commission on Civil Rights after it determined that they had established irreparable injury because “the plaintiffs’ removal deprived the Commission of a quorum,” resulting in the Commission’s “’ability to fulfill its mandate’ to issue a final report before it expired.”

In Perlmutter’s case, said the court, she can be reinstated; the Office can continue to operate in the meantime under Perkins’ leadership; and in many of the other cases cited by Perlmutter to bolster her position, an appellate court or the Supreme Court stayed the preliminary or permanent injunction that was issued. In one case, the Supreme Court reasoned “that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”

Perlmutter’s response was that, unlike the referenced case, she is more likely to succeed on the merits than the government here, but the court said this does not factor into the analysis. “[W]hen the injury is ‘remain[ing] out of office for a short period of time,’ ‘circumstances cut’ against an injunction, even if the officer’s removal ‘deprive[s] [her] of the statutory right to function in office,’” said the court.

The D.C. court lastly rejected Perlmutter’s arguments relating to institutional harm to the Copyright Office because “injuries to third parties are not a basis to find irreparable harm.” While Perlmutter cited cases in which institutional harms were relevant, the court said she is suing here in her personal, rather than official, capacity, and she therefore cannot rely on institutional harms. Furthermore, the institutional harms she cited are speculative said the court, and they “fail on their own terms.”

Perlmutter is presently still listed as Register of Copyrights on the U.S. Copyright Office website, but Carla Hayden is now listed as a previous Librarian of Congress.

According to Perlmutter’s initial complaint, Trump fired Hayden via email and White House Press Secretary Karoline Leavitt claimed that her firing was due to “quite concerning things that [Dr. Hayden] had done at the Library of Congress in the pursuit of D.E.I. and putting inappropriate books in the library for children.” However, those allegations were not supported by proof and “are at odds with the Library’s status as a non-lending research library accessible only by those age 16 and older,” said the complaint.

Perlmutter was also fired via email, on May 10. On May 12, Blanche’s Chief of Staff and Senior Policy Counsel, Brian Nieves, and Perkins showed up at the Library and handed staff a letter explaining that Blanche would be the new acting Librarian and citing as authority the Federal Vacancies Reform Act. They also showed staff an email naming Nieves as acting Principal Deputy Librarian and Perkins as Register. The staff then called the U.S. Capitol Police and Nieves and Perkins left voluntarily. However, a Justice Department spokesperson later told the press that Trump had appointed Blanche as the acting Librarian of Congress and that Blanche had appointed Nieves and Perkins to their respective positions in the Library.