In Stem Cell Case, Plaintiffs' Lawyers Want Familiar Judges

With the human embryonic stem cell case pending in a federal appeals court in Washington, one issue has already come up: which panel of judges will take the case?

Cases in the U.S. Court of Appeals for the D.C. Circuit are randomly assigned to three-judge panels. There’s conflict screening to determine whether any one judge has a financial or other conflict of interest.

In the stem cell case, Judges Douglas Ginsburg, Janice Rogers Brown and Brett Kavanaugh picked up the dispute, heard oral argument in April and issued a ruling in June. The court reversed the dismissal of the claims and remanded the case for further proceedings in the U.S. District Court for the District of Columbia. DOJ is now appealing the issuance of a preliminary injunction that blocks funding for human embryonic stem cell research.

The Gibson, Dunn & Crutcher lawyers for the plaintiffs, Drs. James Sherley and Theresa Deisher, filed a motion about 1:30 a.m. today in the D.C. Circuit asking that the previous panel be assigned to hear the new appeal.

The briefs in the prior appeal, the plaintiffs’ attorneys said, “detail virtually all of the issues in the present appeal. Thus, the interests of judicial efficiency militate in favor of assigning this appeal to the same panel that heard the prior appeal in this case and is familiar with the issues to be raised in the present appeal.” The motion was signed by Gibson partner Thomas Hungar, who co-chairs the firm’s appellate and constitutional law practice group.

Lawyers for the plaintiffs said the U.S. Justice Department is taking no position on whether the same panel should pick up the latest appeal in the case.

Action in the D.C. Circuit could heat up later this week if Chief Judge Royce Lamberth denies the DOJ request to stay the enforcement of the preliminary injunction. Justice attorneys could ask the D.C. Circuit to issue an administrative stay.

Disputes about panel assignments come up now and then. SCOTUSblog wrote about one dispute in a Guantanamo Bay case here.

Comments

[Ian Millhiser]

It's pretty obvious that this motion has nothing to do with selecting familiar judges and everything to do with trying to stack the panel with judges that the plaintiffs' think are likely to rule in their favor.

http://wonkroom.thinkprogress.org/2010/09/02/motion-to-stack-panel/