Trump Tells SCOTUS That Ruling Restoring Perlmutter to Copyright Office is ‘Improper Judicial Interference’

The Trump Administration this week asked the Chief Justice of the U.S. Supreme Court to stay an interlocutory injunction issued by the U.S. Court of Appeals for the D.C. Circuit in September that allowed Register of Copyrights Shira Perlmutter to return to her post pending her lawsuit against President Donald Trump for allegedly illegally removing her from office.

The application for a stay was submitted to the Chief Justice of the Supreme Court by Todd Blanche, Acting Librarian of Congress; Paul Perkins, Acting Register of Copyrights; Sergio Gor, Director, White House Presidential Personnel Office; Trent Morse, Deputy Director, White House Presidential Personnel Office; Executive Office of the President; and Trump.

The administration argued that the D.C. appellate court’s injunction represents “another case of improper judicial interference with the President’s power to remove executive officers.”

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 filed a complaint against Trump on May 22, calling his attempt to remove her “unlawful and ineffective” and arguing 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.” Circuit Judge Walker dissented.

The administration’s application for a stay referred to Walker’s dissent in arguing that the D.C. Circuit’s “analysis contravenes settled precedent and misconceives the Librarian’s and Register’s legal status.” The powers of the Librarian and Register have been classified as executive by the Supreme Court, “such as the power to issue rules implementing a federal statute, to issue orders in administrative adjudications, and even to conduct foreign relations relating to copyright issues.”

To be granted a stay of a lower court’s injunction, the administration has to show a “reasonable probability” that the Supreme Court “would grant certiorari, a likelihood of success on the merits, and a likelihood of irreparable harm.”

Among other certworthy reasons for granting the application, the administration told the Court that the injunction granted by the D.C. Circuit is creating uncertainty for copyright owners and “generating collateral litigation over the validity of copyrights,” as there have been cases in which parties have argued that “the Copyright Office’s actions ‘are unauthorized, ultra vires, and void’ because respondent has been validly removed from office.” The administration cited one case and an IPLaw360 article from June as evidence that such questions have been raised.

The D.C. Court of Appeals’ ruling rests on the premise that the Librarian and Register are legislative, rather than executive branch employees, and that premise is “fundamentally wrong,” argued the administration’s brief. The Librarian and Register both exercise executive power and their mode of appointment conforms to Article II of the U.S. Constitution, which governs the appointment of executive and judicial officers by the Preside with the advice and consent of the Senate, or by department heads.

The administration further argued that it is likely to succeed in showing that Perlmutter’s removal was lawful because the Federal Vacancies Reform Act (FVRA) authorized the President to appoint Blanche as Acting Librarian, which “undisputedly” has the power to remove the Register. And even if the President id not have the power to appoint the Acting Librarian, he has the power to remove the Register directly under Article II.

Finally, the administration said that, regardless of the legality of the removal, it is likely to succeed in showing that the court of appeals “exceeded its remedial authority” in reinstating Perlmutter rather than simply awarding her back pay. “Even assuming that respondent could obtain some form of reinstatement remedy at the end of the litigation—an issue the Court need not decide now—the interim relief granted here is plainly unlawful,” said the administration. Reinstatement injunctions issued due to a court’s view that a party is likely to succeed on the merits pose a greater threat to the Executive Branch that mandamus refiled of declaratory judgments, which have stricter standards, it added.

The government faces irreparable harm from Perlmutter’s reinstatement because ti allows a removed officer to continue exercising power over the President’s objection and subjects the agency to disruption. Perlmutter, however, faces no irreparable harm from her removal. The Court should therefore stay the injunction pending the D.C. Circuit appeal and Supreme Court proceedings, concluded the brief.

The U.S. Copyright Office website still lists Perlmutter as the present Register of Copyrights.