Tag Archives | stem cell research

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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Judge Denies Stay on Stem Cell Research Injunction

Following the August 23 preliminary injunction issued by federal District Court Judge Royce Lamberth to block NIH funding of embryonic stem cell research, the Justice Department filed a motion requesting that the injunction be stayed pending an appeal to the D.C. Circuit. In a very short, 2-page order this afternoon, Judge Lamberth denied the stay motion.

Lamberth’s decision is not surprising, given that the issues at the root of both a motion for a preliminary injunction and a motion for a stay order are essentially the same: the court must weigh (1) the relative harm that each side would suffer if they ultimately prevail on the underlying merits of the dispute but are precluded from acting in the way desired while the underlying issue wends its way through the legal system and (2) the “irreparable” nature of such harm. I believe Lamberth’s ruling today is legally incorrect, for the same reasons articulated in my August 25 post analyzing the preliminary injunction. I won’t rehash those arguments in their entirety, but a couple of points bear noting in light of today’s order.

For practical purposes, the most important point in today’s order — and the one that should be the lead in tomorrow’s newspapers — is Lamberth’s surprising statement that his injunction does not prohibit the NIH from continuing to fund embryonic stem cell research that was permitted by the Bush Administration under its restrictive rules. This is a silver lining for some stem cell researchers, because it means that research projects on the 21 Bush-approved stem cell lines that has been ongoing for as long as eight years need not be shut down. But it completely undermines the reasoning of Lamberth’s decision on the merits of the case, and helps to illustrate why it should be overturned on appeal.

To [...]

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