Summary
The D.C. Circuit granted an emergency motion for an injunction pending appeal, enjoining defendants from interfering with Shira Perlmutter’s service as Register of Copyrights. The court found that Perlmutter demonstrated irreparable harm due to the extraordinary circumstances surrounding her alleged removal by the President, which raises significant separation of powers concerns regarding the Legislative Branch’s independent advisory role. The order also addresses the likely unlawfulness of the Acting Librarian’s appointment under the Federal Vacancies Reform Act and reverses the district court’s denial of injunctive relief.
Topics
Practice areas
Questions Presented
- Whether the district court abused its discretion by denying preliminary relief solely on the ground that Perlmutter failed to establish irreparable harm without weighing the other preliminary-injunction factors.
- Whether Perlmutter demonstrated a likelihood of success on her claim that the President lacked statutory authority to remove the Register of Copyrights and that the purported appointment of an Acting Librarian and Acting Register was unlawful.
- Whether the alleged interference with a Legislative Branch official's statutory duties and the purportedly unlawful removal constituted unusual and genuinely extraordinary circumstances supporting a finding of irreparable harm.
- Whether the balance of equities and public interest favored an injunction pending appeal.
Holdings
- The district court abused its discretion by failing to adequately consider the unusual and extraordinary circumstances alleged in the case and by failing to weigh all four preliminary-injunction factors.
- Perlmutter showed a likelihood of success on the claim that the President's purported removal was unlawful because the Register is appointed and removed by the Librarian of Congress, not the President, and the purported appointments of Blanche and Perkins were likely unauthorized.
- Perlmutter established likely irreparable harm because the alleged unlawful removal of the Legislative Branch's principal copyright advisor in retaliation for advice to Congress presented unusual actions and a genuinely extraordinary threat to the constitutional structure of government.
- The balance of equities and public interest favored granting the injunction because Perlmutter primarily serves Congress, likely does not exercise substantial executive power, and her continued service would not disrupt Executive Branch supervision.
Key quotations
“To obtain either a preliminary injunction or an injunction pending appeal, the movant must demonstrate (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm absent injunctive relief, (3) that the balance of equities favors an injunction, and (4) that an injunction is in the public interest.” (7)
“The Executive’s alleged blatant interference with the work of a Legislative Branch official, as she performs statutorily authorized duties to advise Congress, strikes us as a violation of the separation of powers that is significantly different in kind and in degree from the cases that have come before.” (9)
“In a system of checked and balanced power, the Executive has no authority to punish a Legislative Branch official for the advice that she provides to Congress.” (22)
Factual background
Shira Perlmutter was appointed Register of Copyrights by the Librarian of Congress in October 2020. After Perlmutter released a report concerning the application of fair use to copyrighted works used to train generative artificial-intelligence models, the White House notified her that she was terminated effective immediately. The President then purported to appoint Todd Blanche as Acting Librarian of Congress, and Blanche purported to appoint Paul Perkins as Acting Register. Perlmutter alleged that the removal was unauthorized and retaliatory because it was based on advice she provided to Congress concerning copyright legislation and policy.
Procedural history
Perlmutter sued the President and other officials in the District Court for the District of Columbia, alleging that the President lacked authority to remove her and that the purported appointment of Todd Blanche as Acting Librarian of Congress was unlawful. The district court denied a temporary restraining order and preliminary injunction solely on the ground that Perlmutter had not shown irreparable harm, and later denied a stay pending appeal. The D.C. Circuit granted an injunction pending appeal, enjoining the appellees and their subordinates and agents from interfering with Perlmutter's service as Register of Copyrights and Director of the U.S. Copyright Office pending further order.
Remand instructions
The court granted the injunction pending appeal to the extent that Todd Blanche, Paul Perkins, Sergio Gor, Trent Morse, the Executive Office of the President, and their subordinates and agents were enjoined from interfering with Perlmutter's service as Register of Copyrights and Director of the U.S. Copyright Office pending further order of the court.