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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 [...]

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