D.C. Circuit Says Perlmutter Can Resume Register Role Pending Lawsuit Against Trump

U.S. Copyright Office

The U.S. Court of Appeals for the District of Columbia Circuit ruled Wednesday that Register of Copyrights Shira Perlmutter can resume office while her lawsuit plays out, following President Donald Trump’s decision to remove her from her post. Circuit Judge Walker dissented.

Perlmutter filed a complaint against Trump on May 22, calling his attempt to remove her “unlawful and ineffective.” Trump first fired Librarian of Congress Carla Hayden on May 9, two days before he 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.”

In July, Perlmutter lost her bid to enjoin Trump when the U.S. District Court for the District of Columbia denied her request for a preliminary injunction blocking the removal. Perlmutter’s Motion for a Preliminary Injunction was filed June 10 and argued that Trump’s removal has caused her irreparable harm “and will continue to do so absent judicial intervention.” But 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.”

But on appeal, the D.C. Circuit said “the district court abused its discretion by failing to consider ‘unusual actions relating to the discharge itself’ and a ‘genuinely extraordinary situation’— factors that inform the irreparable-harm analysis and distinguish this case from other removal cases.”

Those factors include that: 1) Perlmutter is alleging “an unprecedented violation of the separation of powers” in her argument that the President removed an official in the legislative branch due to his disagreement with her recommendations to Congress related to the AI report the Office has been working on, the latest installment of which was published one day before she was fired; 2) that the removal was “likely unlawful”; and 3) because Perlmutter “does not exercise substantial executive power,” the case is “markedly different from most precedents addressing the removal of government officials” and should have included an analysis of all preliminary injunction factors. And in the appellate court’s view, all of those factors weigh in favor of Perlmutter.

The D.C. Circuit’s order noted that Perlmutter has asserted that “to her knowledge, ‘no official at the Library of Congress has recognized Mr. Blanche as the acting Librarian of Congress,’ and that she ‘[remains] Register of Copyrights and therefore [is] required by law to fulfill [her] above-described statutory obligations.’”

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

Since the district court relied solely on Perlmutter’s failure in the court’s opinion to show she would suffer irreparable harm, rather than weighing all of the preliminary injunction factors, it failed to “adequately consider the specific circumstances of this case,” said the order.

In the D.C. Circuit’s view, Perlmutter is likely to succeed on the merits, she has proven irreparable harm in that she has shown she was deprived of the opportunity “to provide valuable advice to Congress during a critical time”; and the balance of equities and the public interest also strongly favor Perlmutter. Since she primarily serves Congress, the President’s purported interest in her removal is greatly diminished as well.

Ultimately, the order enjoins Todd Blanche, who is serving as acting Librarian of Congress; Paul Perkins, serving as 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; and the Executive Office of the President and their subordinates and agents, from blocking Perlmutter’s service as Register of Copyrights and Director of the U.S. Copyright Office “pending further order of the court.”

Judge Walker dissented, departing from the majority’s view that Perlmutter’s executive power is not substantial and citing to a case in which he said the D.C. Circuit “recently recognized the important executive power exercised by the Library, suggesting that whatever the Library’s historical association with Congress, it is squarely a component of the Executive Branch in its role as a copyright regulator.”