Shira Perlmutter, U.S. Gov’t USCO Leadership Battle Rages On

Washington, D.C.’s James Madison Memorial Building, which houses the U.S. Copyright Office. Photo Credit: UpstateNYer

Seven months later, the Copyright Office leadership battle is raging on – with the litigation now playing out across a district court, an appellate court, and the Supreme Court alike.

We’ve covered the multifaceted dispute since USCO head Shira Perlmutter was fired in May. And for a courtroom confrontation revolving around one seemingly straightforward question – was Perlmutter’s removal lawful? – the convoluted showdown certainly involves a lot of moving parts.

In short, the Trump administration maintains that the executive, not the legislative, branch houses the Library of Congress and the Copyright Office itself. Consequently, in the administration’s view, the president legitimately axed the librarian, tapped an acting replacement (Todd Blanche, also the deputy attorney general), and booted Perlmutter as register/director.

(Technically, Blanche’s 210-day acting-librarian appointment expired on December 4th, the government noted. “Mr. Blanche designated Brian Nieves to be acting Principal Deputy Librarian on May 11, and he still serves in that position,” per the same document.)

Repped here by Democracy Forward, which per its website provides legal services “free of charge” and aims to hold President Trump “and his administration accountable,” Perlmutter is of the opposite view and hasn’t hesitated to emphasize as much.

To be sure, following Team Perlmutter’s unsuccessful attempts at a preliminary injunction and a restraining order, September saw an appeals court reinstate the ex-register in a 2-1 decision.

Deputy AG Blanche and others pushed back –the “injunction pending appeal conflicts with precedent of the Supreme Court” – but the panel in early October rejected the related rehearing request.

That development prompted the administration to urge the Supreme Court to stay the appellate injunction “pending the resolution of the government’s appeal to that court and pending any proceedings in this Court.”

“Every step of the court of appeals’ analysis depends on the premise that the Librarian and Register are legislative rather than executive officials. … That core premise of the court’s reasoning is fundamentally wrong. As the D.C. Circuit and other courts have recognized in previous cases, the Librarian and Register are part of the Executive Branch,” the government wrote.

Fast forward once more, past a mid-November response from Perlmutter and a subsequent reply from the administration, to the Supreme Court’s November 26th update on the stay application.

“The application for a stay presented to The Chief Justice and by him referred to the Court is deferred pending Trump v. Slaughter, No. 25-332, and Trump v. Cook, No. 25A312. Justice Thomas would grant the application,” that docket entry reads.

The first of those cases concerns the president’s authority to dismiss FTC commissioner Rebecca Slaughter; the second pertains to the removal of Fed board governor Lisa Cook.

According to a SCOTUSblog recap of the Trump v. Slaughter oral argument yesterday, the nation’s highest court “seems likely to side with Trump” about the “president’s power to fire FTC” commissioners and, in turn, different agencies’ members.

Ahead of that significant ruling, which is expected for June or July, Perlmutter’s litigation is still progressing at the district and appeal levels.

On the latter front, the relevant parties must “file motions to govern future proceedings in this case within” seven days of the Supreme Court’s determination regarding the injunction stay.

And in the district court, the government yesterday doubled down on its attempt to secure summary judgment, mentioning, among other things, the above-described Supreme Court cases.

Perlmutter “was lawfully removed as Register of Copyrights—either by Mr. Blanche or by the President,” the administration summed up.

“The Library of Congress is an ‘Executive agency’ under the FVRA [Federal Vacancies Reform Act], and the President lawfully designated Mr. Blanche under that law,” the government wrote. “Alternatively, if the FVRA does not govern the President’s designation of an acting Librarian of Congress, Article II authorizes the President’s designation.”

Additionally, the government also indicated that even if Perlmutter is entitled to injunctive relief, it should begin and end with being restored to the position. “She has no right to an injunction benefiting non-parties or prohibiting Mr. Blanche (or anyone else) from performing the duties of the Librarian,” the defendants wrote.

That ties back to an easily overlooked question: How are things unfolding in the Copyright Office on a day-to-day basis? A comprehensive answer would require quite a bit of ink, but we aren’t without smaller-scale insights.

One such insight arrived today, when a Pryor Cashman rep told us that Jason Sloan had joined the firm’s New York office as a partner in the litigation group as well as the music, IP, and media/entertainment practices. Sloan previously spent over 10 years with the USCO, including a nearly eight-year run (which ended last month) as assistant general counsel.