Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—D.C. Cir.: Copyright head reinstated after district court ruling reversed, (Sep 11, 2025)

By Todd Harrison, J.D.

The district court had based its ruling solely on its determination that the Register of Copyrights had failed to show she would suffer irreparable harm from her immediate removal.

Reversing a district court’s denial of a request for a preliminary injunction brought by the purportedly ousted Register of Copyrights, a divided D.C. Circuit, in a brief per curiam opinion, ordered that the injunction be granted pending appeal. In a concurrence, Judge Pan, joined by Judge Childs, expounded on the court’s reasoning, stating that this case differed from Wilcox in that the Register is employed by the Legislative Branch, not the Executive, and that the Executive’s alleged interference with the work of a Legislative Branch official was a violation of the separation of powers “that is significantly different in kind and in degree from the cases that have come before.” Dissenting, Judge Walker argued that Wilcox and Boyle cover any officer exercising executive power (Perlmutter v. Blanche, No. 25-5285 (D.C. Cir. Sept. 10, 2025)).

The Register in this case has served in her position since October 2020, when she was appointed by the Librarian of Congress.

AI report. On May 9, 2025, the Register released a prepublication version of a report analyzing the use of copyrighted materials to train generative AI models. When the report was released, the President allegedly disagreed with its recommendations. The next day—a Saturday—the Register was notified by email that she had been terminated from her position “effective immediately.”

The President then invoked the Federal Vacancies Reform Act (FVRA) to purportedly appoint the Deputy Attorney General as Acting Librarian of Congress. The Deputy Attorney General then appointed a Justice Department official as Acting Register.

Lawsuit. Subsequently, the Register sued the President and other officials, arguing her termination was unlawful. She contended that only the Librarian of Congress—not the President—has the authority to fire her. She further argued that the Deputy Attorney General was unlawfully appointed and thus lacked the authority to effectuate her termination.

Denying the Register’s requests for a temporary restraining order and a preliminary injunction, the district court evaluated the Register’s motion solely on the grounds of irreparable harm. Specifically, the district court reasoned that the Register’s asserted loss of her “statutory right to function” was not a “genuinely extraordinary situation such that her temporary removal is irreparable harm—or at least, harm that outweighs any corresponding risk of harm to the Government.”

In reaching this decision, the district court relied on the Supreme Court’s recent order in Trump v. Wilcox, which stated that the harm to the government “from an order allowing a removed officer to continue exercising the executive power” is generally greater than the harm to a government official who is wrongfully removed.

Appeal. After the district court denied the Register’s appeal seeking a stay of its order, she filed this instant motion for an injunction pending appeal. The D.C. Circuit granted the motion.

Concurrence. In a concurrence, Judge Pan, joined by Judge Childs, discussed in further detail the court’s reasoning in its decision to grant the instant motion.

Because the district court determined that the Register had failed to show she would suffer irreparable harm if removed during the pendency of further proceedings, the district court performed no weighing of the other preliminary injunction factors. In reaching its decision, the district court leaned heavily on Wilcox. However, the concurrence argued that Wilcox addressed circumstances that were different in important respects. Further, the district court failed to appropriately follow the Supreme Court’s guidance in Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974), “unusual actions relating to the discharge itself” and “genuinely extraordinary situation[s]” can support a finding of irreparable harm.

In this instance, the concurrence asserted that the Executive’s alleged interference with the work of a Legislative Branch official, as she performed statutorily authorized duties to advise Congress, was “a violation of the separation of powers that is significantly different in kind and in degree from the cases that have come before.”

Wilcox distinguishable. This case, according to the concurrence, was distinguishable from Wilcox because of the diminished amount of executive power that was at stake, noting that the Register likely does not exercise substantial executive power because the position is housed within the Legislative Branch, its primary responsibility is advising Congress on matters of copyright law, and the President has no statutory removal authority over the Register at all. Finally, it was significant that the Register’s removal was likely unlawful because the President has no direct authority to fire her, and his installment of an Acting Librarian of Congress was likely ineffective.

Irreparable harm. On review of the district court’s finding of no irreparable harm, the concurrence reached the opposite conclusion. Based on “unusual actions relating to the discharge itself” and “genuinely extraordinary” circumstances as set forth in Sampson, the Register had demonstrated irreparable harm. The district court had failed to recognize the “extraordinary situation” presented by this case and erred in mechanically applying the Supreme Court’s reasoning in Wilcox.

Wilcox involved the constitutionality of for-cause removal protections for members of the National Labor Relations Board and the Merit Systems Protection Board, agencies that are housed within the Executive Branch. That case, and others like it, implicated the President’s Article II authority as head of the Executive Branch, and his statutory power to exercise at least some control over the involved officials. Where the President is entitled to exercise at-will removal authority, it is more difficult for the ousted officials to demonstrate irreparable injury.

Here, the “unusual actions relating to the discharge itself” support a finding of irreparable harm to the Register absent an injunction. The Register can likely establish she was unlawfully removed, a decision motivated by the President’s disapproval of her work in service of Congress—work that was related to legislative, not executive, functions. Moreover, she was purportedly replaced by an Executive Branch official, and that alleged violation of the separation of powers is harmful both to the Register “and to our system of government.”

Upon application of the other preliminary injunction factors, the concurrence found that they too favored the issuing of an injunction pending appeal.

Likelihood of success. As noted, the Register’s purported removal was likely unlawful and the purported appointment of an Acting Librarian of Congress was also likely unlawful because any Librarian appointee must be confirmed by the Senate. However, Senate approval was lacking in this instance.

In addition, the FVRA was likely an unavailing workaround for the government, as the plain language of the statute indicates that the Library of Congress is not an “Executive agency” for purposes of the FVRA.

Equities, public interest. Finally, the concurrence explained that the balance of equities and public interest also weighed in favor of the Register remaining in her job. Although the Supreme Court, notably in Wilcox, has ruled in the government’s favor where the government was likely to show that the agencies in question “exercise considerable executive power,” and that the removed executive official sought to “continue exercising the executive power,” the injunction requested by the Register would not require the President to work with a removed principal officer at an Executive Branch agency. To the extent that any of the Register’s duties might be characterized as “executive” in nature, they likely do not involve the exercise of “substantial” executive power.

Further, the public interest favors granting the Register’s requested relief. There is no public interest in implementing her likely illegal removal. Accordingly, the requested injunction pending appeal was granted.

Dissent. Dissenting, Judge Walker noted that the Supreme Court has “recently, repeatedly, and unequivocally” stayed lower court injunctions barring the President from removing officers exercising executive power. Whether or not the Register exercises less executive power than do some other executive officers, Wilcox and Boyle cover any officer “exercising executive power,” explained the judge.

Further, continued the dissent, whether or not the Register’s removal was likely unlawful, Wilcox and Boyle referred to “a wrongfully removed officer” when they said that “the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”

The case is No. 25-5285.

Judge: Per curiam.

Attorneys: Donald B. Verrilli, Jr. (Munger, Tolles & Olson) for Shira Perlmutter. Ashley Cheung Honold, U.S. Department of Justice, for Todd Blanche, Paul Perkins, Sergio Gor, Trent Morse, Executive Office of the President, and Donald J. Trump.

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