Trump DOJ Says D.C. Circuit Got it Wrong in Temporarily Restoring Copyright Register

Following a split decision on September 10 that temporarily restored Register of Copyrights Shira Perlmutter to her role, the Trump Administration has filed a petition for rehearing with the U.S. Court of Appeals for the D.C. Circuit calling the court’s ruling an “extraordinary step”.

The September 10 decision said that “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.”

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.”

The factors the D.C. Circuit said the district court failed to consider included 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 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.’”

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 D.C. Circuit decision.

But the government’s petition said the view that the Register is a legislative officer is “impossible to reconcile with the Copyright Act or this Court’s many prior decisions reviewing decisions of the Copyright Office.” The petition listed a number of duties of the Register it referred to as “quintessentially executive,” such as interpreting and applying the Copyright Act to applications and issuing regulations under the Copyright Act, and said the panel failed to reconcile its view of Perlmutter as a legislative officer with these functions. “Nor, for that matter, does the panel anywhere acknowledge the potentially momentous implications of its view that the entire federal copyright system is administered by an officer of the Legislative Branch,” said the petition.

Judge Walker dissented to the D.C. Circuit’s decision to grant Perlmutter an injunction, 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.”

With respect to the D.C. Circuit’s analysis of Perlmutter’s Federal Vacancies Reform Act (FVRA) argument, in which she claimed the President does not have authority under the FVRA to designate Blanche as Acting Librarian, the petition said the appellate court erred again. The petition said:

“The FVRA authorizes the President to appoint acting officials in an ‘Executive agency,’ 5 U.S.C. § 3345(a)(2), which is defined to include, inter alia, any ‘independent establishment,’ id. § 105. Congress defined ‘independent establishment’ to mean ‘an establishment in the executive branch’ that meets certain textual criteria, all of which the Library satisfies”

The court mistakenly believed Perlmutter’s argument that the Library is not likely an “independent establishment” because it is not in the executive branch, the government explained, and urged the court to grant a rehearing or rehearing en banc.

The Library of Congress website describes itself as “the main research arm of the U.S. congress” and “an agency of the legislative branch of the U.S. government.”