MEMORANDUM OF DECISION AND ORDER ON PRESIDENT &
FELLOWS OF HARVARD COLLEGE'S MOTION FOR RECONSIDERATION
OF ITS REQUEST FOR A STAY PENDING APPEAL
Elizabeth Fahey, Justice
31, 2017, this court issued an order allowing the pro se
plaintiff, Gustavo German's (" German"), motion
to add President & Fellows of Harvard College ("
Harvard") as a party and directing Harvard to comply
with this court's December 5, 2016 order.
19, 2017, this court issued an amended Revised Order
directing Harvard to provide German with " full
access" to " the Bauer Building (located in the
basement of the Sherman-Fairchild Building where the Rubin
Lab is located)" and to " the BRI facility inside
the Bio Lab Building" where German houses and conducts
research with a specialized mouse colony. Counsel for Harvard
sought a stay of the court's orders pending appeal in
open court, which was denied. This court stated that it would
reconsider its ruling if Harvard submitted evidence
concerning the laws and regulations governing animal research
at Harvard. Harvard filed a notice of appeal on June 21,
2017, seeking appellate review of this court's May 31,
2017 order and its June 19, 2017 Revised Amended Order.
this court is Harvard's Motion for Reconsideration of its
Request for a Stay of both orders pending appeal ("
Motion"). After hearing and careful review of the
submissions of the parties, the Motion is ALLOWED in
part and DENIED in part.
20, 2017, following this court's invitation to submit
additional evidence, Harvard submitted the affidavit of
Steven Niemi, which addressed various federal and local
regulations governing animal research at Harvard. The
affidavit also explained that because German has been
withdrawn as a graduate student at Harvard, he is no longer
eligible to use or access any regulated animals located in
any Harvard facility for any purpose.
29, 2017, this court conducted an evidentiary hearing where
Harvard offered the testimony of Dr. Ara Tahmassian, its
Chief Research Compliance Officer, concerning the role of
Harvard's Institutional Animal Care and Use Committee
(" IACUC"), which revoked German's access to
the BRI facility. Dr. Tahmassian guided this court through
the federal regulations that establish the IACUC as an
oversight body that is independent of Harvard. He explained
that under those regulations Harvard cannot overrule the
IACUC in the event of a negative decision concerning animal
testing and research, including its decision to revoke
German's access because he is no longer a person "
affiliated" with the university. Dr. Tahmassian
explained that the IACUC undertook review, and ultimate
revocation, of German's access to the animal testing
facilities based upon German's " change of status,
" which was communicated to the IACUC by Harvard's
Office of General Counsel following its withdrawal of German
from the university. Dr. Tahmassian also explained that
German is now prohibited by the applicable regulations from
accessing any regulated animals at Harvard facilities because
he is no longer affiliated with the university. He further
testified that the only way for German to regain access is if
his affiliation with the university is restored, either
through readmission as a student or through qualifying
employment with the university. This court credits Dr.
Tahmassian's testimony and explanation of the applicable
federal and local laws and regulations.
An appellant seeking a stay pending appeal must ordinarily
meet four tests: (1) the likelihood of appellant's
success on the merits; (2) the likelihood of irreparable harm
to appellant if the court denies the stay; (3) the absence of
substantial harm to other parties if the stay issues; and (4)
the absence of harm to the public interest from granting the
stay." C.E. v. J.E., 472 Mass. 1016, 1017, 37
N.E.3d 623 (2015), quoting J.W. Smith & H.B. Zobel, Rules
Practice § 62.3, at 409 (2d ed. 2007).
consideration of the additional evidence Harvard provided,
and in particular the testimony of Dr. Tahmassian, this court
finds that even though the revocation of German's access
to the BRI facility is a direct result of Harvard's
questionable withdrawal of him as a student, there would be
irreparable harm to Harvard if this court enforced its June
19, 2017 order against it as concerns access to the BRI
facility. To comply, Harvard would be forced to violate
federal and local laws governing animal testing thereby
subjecting Harvard to the severe consequences provided by
those same laws. The court finds that substantial harm will
unfortunately be visited upon German by granting this limited
stay because he will be unable to conduct his research while
he remains " unaffiliated" with the university.
However, the repercussions of forcing Harvard to violate
federal and local animal testing laws outweigh the harm to
German, which this court expects will be temporary.
therefore, ORDERED that the Motion for
Reconsideration is ALLOWED in part. The Court's
June 19, 2017 order, as it concerns German's access to
the BRI facility, is stayed pending appeal, or until such
time as German's status as a researcher "
affiliated" with Harvard is restored, ...