SHERLEY et al v. SEBELIUS et al

Filing 48

Emergency MOTION to Stay re 45 Order Pending Appeal by FRANCIS S. COLLINS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, NATIONAL INSTITUTES OF HEALTH, KATHLEEN SEBELIUS (Attachments: # 1 Memorandum in Support, # 2 Exhibit A - Declaration of Dr. Francis Collins, # 3 Text of Proposed Order (Emergency Motion to Stay Preliminary Injunction Pending Appeal), # 4 Text of Proposed Order (Motion for Expedited Briefing and Consideration))(Freeny, Kyle)

SHERLEY et al v. SEBELIUS et al

Doc. 48

Case 1:09-cv-01575-RCL Document 48

Filed 08/31/10 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JAMES L. SHERLEY, et al., Plaintiffs, v. KATHLEEN SEBELIUS, in her official capacity as Secretary of the Department of Health and Human Services, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

Case No. 1:09-cv-01575-RCL

DEFENDANTS' EMERGENCY MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL AND FOR EXPEDITED BRIEFING AND CONSIDERATION Defendants respectfully move the Court for a stay of its August 23, 2010 Order (Dkt. 45) pending appeal to the U.S. Court of Appeals for the D.C. Circuit.1 On August 27, 2010, Defendants filed a Notice of Appeal (Dkt. 46) from that Order, which granted Plaintiffs' Motion for Preliminary Injunction and enjoined defendants and their officers, employees, and agents from "implementing, applying, or taking any action whatsoever pursuant to the National Institutes of Health Guidelines for Human Stem Cell Research ("Guidelines"), 74 Fed. Reg. 32,170 (July 7, 2009), or otherwise funding research involving human embryonic stem cells as contemplated in the Guidelines." The basis for defendants' motion for stay pending appeal is set

Pursuant to Local Rule 7(m), defendants' counsel has conferred with plaintiffs' counsel both on defendants' Emergency Motion to Stay Preliminary Injunction Pending Appeal ("stay motion") and defendants' request for expedited briefing and consideration of the stay motion. With respect to defendants' stay motion, plaintiffs' counsel has stated that plaintiffs oppose this motion. With respect to defendants' request for expedited briefing and consideration of the stay motion, plaintiffs' counsel indicated that he needed to confer with plaintiffs regarding this request, but as of the time of this filing, had not informed defendants' counsel of plaintiffs' position on the request.

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Dockets.Justia.com

Case 1:09-cv-01575-RCL Document 48

Filed 08/31/10 Page 2 of 2

forth in the attached Memorandum and accompanying Declaration of Francis Collins, M.D., Ph.D, Director of the National Institutes of Health. A proposed order is also included. Because of the magnitude of harms occurring each day that the preliminary injunction remains in effect, defendants respectfully request expedited briefing and consideration of their motion for stay. Defendants request that plaintiffs' opposition to the motion be due by Friday, September 3, 2010, and that the Court rule by September 7, 2010. If the Court has not ruled on defendants' motion by that date, they intend to present their stay request to the Court of Appeals the following day. Dated: August 31, 2010 Respectfully submitted, TONY WEST Assistant Attorney General RONALD C. MACHEN JR. United States Attorney SHEILA LIEBER Deputy Branch Director, Federal Programs Branch /s/ Kyle R. Freeny ERIC R. WOMACK, IL Bar No. 6279517 JOEL McELVAIN, DC Bar No. 448431 TAMRA T. MOORE, DC Bar No. 488392 KYLE R. FREENY, CA Bar No. 247857 Trial Attorneys, Federal Programs Branch U.S. Department of Justice, Civil Division P.O. Box 883, Washington, DC 20044 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Counsel for Defendants

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