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Last month, District Court Chief Judge Royce C. Lamberth placed a halt on the Obama administration’s funding of human embryonic stem cell research, throwing the research community into turmoil.
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A three-judge panel in the DC Circuit Court of Appeals heard oral arguments in the stem cell case yesterday, and also rejected the University of California’s motion to become a party to the case. Additionally, the government filed several motions before the lower court late last night, seeking judgement in their favor.

The case is Sherley v. Sebelius, where adult stem cell researchers (the plaintiffs) are suing the government to prevent the use of federal money to fund human embryonic stem cell research. A lower court issued a preliminary injunction barring the work, but it has been temporarily lifted by the appeals court while it hears arguments for a more permanent lifting.

Oral argument

The argument began yesterday morning shortly after 10 a.m., and continued for about 75 minutes. It was scheduled to last only 30 minutes, but the judges asked many questions of the arguing lawyers and extended the time. The argument style at this court is similar to the argumentative style those before the Supreme Court, where judges ask many questions.

Deputy Assistant Attorney General Beth S. Brinkman began with the Government’s argument, but was immediately interrupted by Judge Thomas Griffith, after which they had a ten-minute exchange.

“All $64 million is completely ruined?” Griffith asked, expressing incredulity at the government’s position that the preliminary injunction caused irreparable harm. “They don’t keep lab notebooks?” He asked.

Griffith was the most aggressive questioner, according to Dow Jones Newswire.

Judge Brett Kavanaugh labelled the government’s position “internally inconsistent,” but also said that deference was due to the government when the law is ambiguous. He labelled the government’s position — that stem cell research was not “research in which an embryo is destroyed” — as “gerrymandering.”

Judge Judith Rogers appeared more sympathetic to the government’s position, suggesting that the preliminary injunction might damage the public’s interest.

(Kavanaugh and Griffith are appointees of Republican President George W. Bush. Rogers was appointed by President Bill Clinton.)

After Brinkman, Thomas G. Hungar of Gibson, Dunn, & Crutcher argued in favor of the plaintiffs, James L. Sherley and Theresa A. Deisher, the adult stem cell researchers. The judges were not easy on Hungar, either.

Kavanaugh observed that the congressional appropriations rider at issue, the Dickey-Wicker amendment, was intended to bar research on human embryos, not on stem cells.

Hungar argued that the National Institute of Health’s research policy had been “all over the map,” but Griffith said the NIH had been consistent in its refusal to not fund the derivation of human embryos.

According to Nature, the judges were “equal-opportunity interrogators,” letting no side off easily.

Hungar also revealed a personal opinion contrary to the plaintiff’s filing in this case: that the preliminary injunction (that has been temporarily lifted) should be interpreted as barring research that was permitted under President Bush’s stem cell guidelines. In their filings, the plaintiffs argued that work with the Bush stem cell lines could continue, and the lower court judge, Royce C. Lamberth, appeared to agree. But the government took the opposite position consistent with Hungar’s: they believe the injunction barred work with the Bush lines.

UC Intervention rejected

Shortly after 1 p.m. yesterday, the appeals court denied the University of California’s request to join the case as an intervenor.

The university had moved for permission to join the case last week as an intervenor. Both the plaintiffs and government objected, with the government recommending that the university file an amicus curiae, or friend-of-the-court brief, instead. That will allow the university to offer its opinions before the court, but it will not have the same rights of reply and potential oral argument that a full party would have.

The court’s order yesterday granted the university amicus status. Normally a party seeking to file such a brief must have either permission of the court or permission of both parties, though such permission is customarily granted.

Defense moves for summary judgement

With the case before the appeals court, both sides are continuing to file motions and briefs before the lower court, the District Court for the District of Columbia.

On Sept. 9, the plaintiffs moved for summary judgement. Yesterday, the defense did so as well.

In about 100 pages of filings, the government reiterates the arguments it lodged earlier, in its opposition to the preliminary injunction, as well as in its motions to stay, or temporarily lift, the preliminary injunction.

In one filing, it argues against the plaintiff’s motion for summary judgement.

In another filing, it argues for summary judgement in favor of its own side.

The government also responds to allegations that Deisher and Sherley personally offered in declarations filed earlier (as distinct from legal filings on their behalf by their lawyers), in its “Response to Plaintiff’s Statement of Material Facts.” In particular, the government strongly disputes the idea that Sherley and Deisher’s research has been harmed by human embryonic stem cell research.

The NIH continues to observe that, even as this lawsuit wends its way through the courts, Deisher has still not applied for NIH funding. And it quibbles with Sherley over the number of competing NIH grants he has applied for, distinguishing grant revisions from new grant applications.

Jaenisch lectures today

Professor Rudolph Jaenisch, a noted stem cell expert, is giving the James R. Killian Lecture in 10-250 today at 2:30 p.m., on the topic of stem cells.

Portions of the first section of this article, “Oral argument,” are summarized from wire stories.