D.C. Circuit Issues Second Stay Order in Stem Cell Case

Following oral argument Monday, a three-judge panel of the D.C. Circuit (Rogers, Griffith, and Kavanaugh) yesterday ordered a “stay pending appeal” of District Court Judge Royce Lamberth’s preliminary injunction of NIH grants for human embryonic stem cell research.

This is clearly good news for the federal government and supporters of embryonic stem cell research. Judge Lamberth’s order that the government must stop funding this research is still on hold, as it has been since the same D.C. Circuit panel issued an administrative stay order on September 9.

For those interested only in the policy issue, you can stop reading now. For those issued in procedure, please continue.

I’m scratching my head over whether there is any practical significance to yesterday’s order, which replaces the September 9 “administrative stay” currently in place with a “stay pending appeal,” and then orders that the appeal itself be expedited. Here’s the actual text:

Upon consideration of the government’s emergency motion to stay preliminary injunction pending appeal and for immediate administrative stay, the opposition thereto, the reply, and the argument by counsel, it is

ORDERED that the administrative stay entered September 9, 2010, be dissolved.

It is FURTHER ORDERED that the motion for stay pending appeal of the preliminary injunction entered on August 23, 2010, be granted. Appellants have satisfied the standards required for a stay pending appeal. See Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32-33 (2010).

It is FURTHER ORDERED, on the court’s own motion, that consideration of this appeal be expedited. The parties will be notified by separate order of the briefing schedule and oral argument date.

According to the citations provided, a stay pending appeal is appropriate when the petitioner demonstrates either a strong likelihood of prevailing on the merits or that the petitioner has a serious case on merits that deserves careful attention and that the equities and demands of public policy favor maintaining the status quo until the underlying matter is finally decided.

Under this standard, a stay would make perfect sense if the government were appealing a permanent injunction. That is, if Judge Lamberth had issued a final judgment that the Dickey-Wicker Amendment prevents the NIH from funding any and all embryonic stem cell research and the government had appealed that decision and concurrently requested a stay pending appeal, it would have been quite sensible for the D.C. Circuit to issue a stay to preserve the status quo pending the resolution of the underlying statutory interpretation issue.

But Judge Lamberth has not issued a final judgment. Technically, he has issued only a preliminary injunction, and it is that preliminary injunction that is on appeal in the D.C. Circuit. (Both parties are seeking summary judgment on the merits before Judge Lamberth, but he has not yet ruled on those motions). And the standard for whether a preliminary judgment is appropriate is essentially the same standard that the D.C. Circuit used in determining whether a stay is appropriate. In order for Judge Lamberth to issue the preliminary injunction in August, he had to find that the sliding scale of (a) likelihood of prevailing on the merits, (b) the equities concerning harm that would be suffered in the intervening period, and (c) the public interest, favored the plaintiffs. In order to issue yesterday’s stay, the D.C. Circuit panel had to find that these very same combination of factors favored the defendants.

Let’s review: the D.C. Circuit panel seems to have decided that Judge Lamberth was wrong to issue the preliminary injunction. And it did so following briefing and oral argument on the issue. So why is this not the end of this particular appeal? Why does the panel seem to be telling the parties it will now reconsider the issue that it just decided, and on an expedited basis no less? It just did exactly this! If the panel felt like it needed more time to ponder the question of whether the preliminary injunction was correct, or to request further briefing, it certainly could have done so. The administrative stay of September 9 already froze the status quo pending its decision. There was no pressure to issue some sort of order this week.

I’m not a civil procedure expert, so perhaps there is a simple explanation of which I am unaware. If so, hopefully a reader with expertise in this area can and will enlighten me in the comments.


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