Stem cell research funding

[Voronwë the Faithful]

There have been a lot of interesting political court cases recently - the Prop 8 trial in California and the Justice Dept. lawsuit over the Arizona immigration law to name two. But one of the most interesting has been a lawsuit that two researchers who use adult stem cells, an alternative to embryonic stem cells against Department of Health and Human Services Secretary Kathleen Sebelius to stop federal funding of embryonic stem cell, arguing that it violates the Dickey-Wicker Act, which prohibits federal funding ofdestruction of human embryos or funding research in which embryos are destroyed.

As is often the case, the first legal question of the case is whether the plaintiffs really have standing to bring the lawsuit. They argue that there is limited amount of federal funding and it is going to the "illegal" embryonic stem cell research instead of to them for their "legal" adult stem cell research. The problem is that these two researchers have never even applied for an NIH grant, so it is far from certain that they would receive federal funding even if the embryonic stem cell research was held to be illegal.

Moreover, the Dickey-Wicker Act has been in existence for 15 years, and no federal agency or court has ever found that embryonic stem cell research violates it. That includes during the Bush administration, when federal funding was allowed for existing lines of embryonic stem cells. In fact, Dickey-Wicker was passed before stem cell research was even occurring, and was actually passed to address research directly on the embryo. There is nothing in the legislative record to indicate that it was intended to deal with stem cell research at all.

Nonetheless, a Republican-appointed federal District court judge, Royce Lamberth, has taken the rather extraordinary step of issuing a premliminary injunction against funding embryonic stem cell research. A preliminary injunction is only supposed to be issued in cases where the plaintiff show a very high likelihood that they will eventually prevail AND that it will cause them extraordinary harm to wait. The latter factor really boggles my mind; how can they show that they are being caused extraordinary harm when they never have even applied for a grant? Tres bizarre.

Not surprisingly, Judge Lambert denied the Justice Department's request to stay the preliminary injunction while the department appealed to the Court of Appeal. However, the Court of Appeal has issued a temporary stay of the preliminary injunction, while it considers the appeal. It has ordered the briefing to be completed by September 20, and will presumably rule on the appeal soon after that.

Meanwhile, the case continues in the District Court, and Judge Lambert has agreed to allow the plaintiffs to file an early motion for summary judgment. He will undoubtably grant that motion for the same reasons that he has already used in granting the preliminary injunction, and the administration will then have to appeal that decision too, and likely will try to get a stay to keep if for going into effect during the pendency of the appeal.

It seems to me that Judge Lambert's decision was based entirely on political/religious considerations, rather than the legal issues. It will be interesting to see how the Court of Appeal judges see it.

[yovargas]

Interesting. Perhaps the Dems will get the relatively rare opportunity to start shouting about "activist judges"?

[Voronwë the Faithful]

There are plenty of occasions where advocates on both sides of the political spectrum are justifiably able to cry "activist judge!"

[yovargas]

So why's it feel like I only ever hear Reps saying it? (Not to sidetrack your thread right off the bat.....)

[Voronwë the Faithful]

It certainly is a common Republican refrain. It fits neatly into their "less government" meme. But, for instance, there were many liberals that were talking about the Citizens United Supreme Court decision on campaign spending as a classic example of conservative judges engaging in judicial activism, since that was an example of the court taking on far more broad issues than it had to resolve the case, while in the process overturning decades of judicial precedent, as well as Congress's own extensive findings and judgment.

[River]

So why's it feel like I only ever hear Reps saying it? (Not to sidetrack your thread right off the bat.....)

Two reasons. First, as Voronwë's post vaguely alludes to, sometimes the lady doth protest too much. Second, it's a time-honored tradition to howl and scream when you end up on the losing side.

As for the stem cell case...why did that even end up in court? For pete's sake, if you want your grant money you've got to compete for it just like everyone else. If they were afraid of losing out to those that work with embryonic stem cells they should just write a very persuasive grant. This idea of suing to freeze your rivals' funds is unnerving on multiple levels. Especially since, as Voronwë says, they haven't actually applied for the money yet. Bizarre doesn't even cover it. Not only have they not been "harmed" (if losing the funding competition even counts as harm), but they're basically announcing to the world that their research is so utterly crappy and without scientific merit that they have no hope of winning anything unless they exclude a chunk of the competition.

And I thought the field I worked in as a grad student was a back-stabbing snake pit. Wow. Just wow.

[Cenedril_Gildinaur]

So why's it feel like I only ever hear Reps saying it? (Not to sidetrack your thread right off the bat.....)

The recent 2nd Amendment cases in Washington and Chicago were greeted with such proclamations, IIRC.

[Voronwë the Faithful]

To some extent, yes. But not nearly to the extent of the campaign spending decision. The second amendment decisions were contrary to what most people (including, until recently, the Justice Department) assumed would be the SCOTUS's interpretation, but previous second amendment adjudication was so sporadic and vague that it really could have gone either way without being considered overly activist.

[nerdanel]

I agree: many of us on the left viewed Citizens United as a clear example of conservative judicial activism. In my view, one of the clearest hallmarks of judicial activism is deciding far more than you need to decide to resolve the specific issues presented by a particular case.

As for the stem cell decision, I have three thoughts at present.

First, I was interested to read the analysis over at the Volokh Conspiracy, which explained (IMO persuasively) that Judge Lamberth's order denying the DOJ's request had a fatal logical flaw, as follows:

Judge Lamberth had ruled that the Dickey-Wicker Amendment, which prohibits the federal funding of research in which embryos are destroyed, prohibits the funding of research on (all) embryonic stem cell lines, because those stem cell lines are created by removing cells from 5-day old human embryos (destroying the embryos). However, in denying the DOJ's request for a stay of his preliminary injunction, Judge Lamberth stated that despite his injunction, the NIH could continue to fund embryonic stem cell research on the 21 cell lines on which the Bush Administration had permitted research. The only difference between the Bush Administration's and the Obama Administration's stem cell research efforts is this: the BA allowed for funding of research only where the cell lines had been created prior to 2001, whereas the OA allowed for funding of research regardless of when the cell lines were created, so long as the cell lines were created from embryos left over from IVF efforts (and would thus otherwise be discarded if not used).

Judge Lamberth's statement that research on the BA cell lines could continue is thus rather bizarre: under his substantive reasoning, research on both the BA and OA cell lines should violate the Dickey-Wicker Amendment.

Second, the Volokh blog post also interestingly points out:

The only defense of today’s decision offered by the order is that “a stay would flout the will of Congress, as this Court understands what Congress has enacted in the Dickey-Wicker Amendment.” The problem with resting the denial of the stay solely upon his interpretation of Dickey-Wicker is that, if the legal question concerning whether a stay were appropriate were supposed to be exactly the same as the question concerning the proper interpretation of Dickey-Wicker, we wouldn’t need a separate legal process for considering the stay.

Circular reasoning at best, indeed.

Third, the panel assigned to this case could be relevant. This case already reached the DC Circuit once before, and Judges Ginsburg (Reagan appointee), Brown (Dubya appointee), and Kavanaugh (Dubya appointee) reversed a dismissal of the plaintiffs' claims and remanded for further proceedings. The plaintiffs, represented by noted conservative law firm Gibson Dunn & Crutcher*, would like the same panel to accept this comeback case; it remains to be seen whether the DC Circuit will agree to this request. It seems likely that the DOJ will oppose (perhaps has opposed already - I haven't signed onto the DC Circuit docket to check) this request. If Ginsburg/Brown/Kavanaugh take the comeback case, the odds of Judge Lamberth's decision being upheld may increase.

* It can be difficult to characterize the political bent of large law firms. For instance, Gibson is also representing the plaintiffs seeking to strike down Prop. 8. However, their DC Office (and Appellate Group) are viewed as politically conservative and have often pursued conservative litigation, making Prop. 8 far more of an outlier case for them than this one.

[Voronwë the Faithful]

Third, the panel assigned to this case could be relevant. This case already reached the DC Circuit once before, and Judges Ginsburg (Reagan appointee), Brown (Dubya appointee), and Kavanaugh (Dubya appointee) reversed a dismissal of the plaintiffs' claims and remanded for further proceedings. The plaintiffs, represented by noted conservative law firm Gibson Dunn & Crutcher*, would like the same panel to accept this comeback case; it remains to be seen whether the DC Circuit will agree to this request. It seems likely that the DOJ will oppose (perhaps has opposed already - I haven't signed onto the DC Circuit docket to check) this request. If Ginsburg/Brown/Kavanaugh take the comeback case, the odds of Judge Lamberth's decision being upheld may increase.

I thought I had noted when I last checked the docket that that request had actually already been denied, but perhaps I misunderstood. I'll have to try to check again when I am next in my office (I don't have my Pacer account info here at home).

[nerdanel]

You may be right - now that I think about it, I'm actually not sure if I have an active PACER account at the moment that I'm authorized to use. So I'll appreciate it if you can check and report back.

[Voronwë the Faithful]

Yes, the motion to assign the case to the prior panel was filed on 9/1/10, and was denied before any opposition could be filed, on 9/2/10. However, one of the judges from the prior panel is on the current panel, Judge Kavanaugh. The other judges are Judges Rogers and Griffith. I assume, nel, that you would have some thoughts as to whether this panel will be more or less likely to uphold the decision of Judge Lamberth.* Oral argument was originally scheduled to take place on this Friday, Sept. 24 at 11:00 a.m., but the court granted the plaintiff/appellees request to reschedule it, and it is now set for Monday, September 27 at 10:00 a.m. The court has limited the two sides to 15 minutes a piece. I presumed that the court will issue its decision fairly soon afterward. Although there is another new wrinkle which may delay matters somewhat. The Regents of the University of California, has filed a request seeking to intervene in the appeal since as the largest recipient of NIH grants it is adversely affected by the preliminary injunction. The panel issued an order today request responses to that motion from both parties by Thursday. I don't know whether that will delay the oral argument.

Meanwhile, back in the District Court, the plaintiffs have already filed their motion for summary judgment, which as I previously indicated will almost certainly be granted by Judge Lambert (he would have to completely reverse course not to do so). Then (again as I previously indicated). That too will be appealled to the Court of Appeal. It will be interesting to see whether the current panel heres that appeal.

* It appears that both Kavanaugh and Griffith are appointees of George W. Bush, while Rogers is a Clinton appointee.

[nerdanel]

Thanks for checking on the comeback case issue. I wonder whether the DC Circuit follows a different procedure than the Ninth for deciding whether to assign a comeback case to the original panel.

On the Ninth Circuit, after a case that was previously assigned to a merits (as opposed to a screening) panel has been fully briefed, court staff contact the three judges on the original panel to ask whether they would like to accept the case as a comeback. The judges vote amongst themselves and communicate their decision back to court staff. (This process usually isn't instantaneous on the Ninth, which is why I'd assumed that the DC Circuit hadn't yet acted on the plaintiffs' request.) My understanding is that this occurs on the Ninth whether the parties have requested that the case be assigned to the original panel or not. The parties are advised of the panel's identity in the usual course, roughly six weeks before oral argument. If the DC Circuit did want to entertain comeback cases, they would have an easier time in doing so because all the judges are located in the same city, meaning that they wouldn't have to struggle to find a convenient week for the panelists to travel for an oral argument that is additional to their prescheduled court weeks.

Anyway, not being as much of a DC Circuit watcher as I probably should be, I don't have very clear thoughts on the likely outcome with the new panel. (FWIW, in the one court for which I've made the effort - it took about 6-8 months of paying close attention to the court's opinions, en banc proceedings, dissents from denial, etc., before I started feeling as though I had a good, broad handle on which panels would likely reach particular outcomes, and what reasoning they'd likely find persuasive. I think it'd take even longer for me to feel that way without getting to see the court's en banc proceedings.) I'm afraid that I don't have much insight into Judge Rogers at all, other than her status as a Democratic (Clinton) appointee and her background in federal government service. As for Judge Griffith, he certainly hails from a conservative background, with Mormon roots, undergraduate and professional ties to BYU, and a Dubya appointment. Although this case has nothing to do with the Dickey-Wicker Amendment, I find his vote on that panel encouraging in a general sense.

So, given my lack of personal knowledge, I shall resort to repeating hearsay from the "lawyers' comments" section of the Almanac of the Federal Judiciary. Here's Judge Griffith's comments:

According to lawyers, Griffith is very conservative. “He has a slight defense leaning. He tries to be fair and just to both sides. He has a reputation for being quite conservative with an agenda, but I have always found him to be fair to both sides.” “He tries to do the right thing with a very conservative approach. Plaintiffs should be very careful. He leans to the defense, big business and the government.” “He is very right wing conservative. He has an agenda. You have to work around his presence.” “He is the worst draw possible for plaintiffs. He has the skills, but uses them toward his ultra conservative bias and agenda.” “His leanings are well documented. He is pro-government, government entities, and big business. He's not my choice.” “His bias is the worst. He is a true activist. He has an agenda and makes it clear from the start where he stands.” “Even though I normally do well with him, I would like to see a more open minded judge up there. He has a strong defense leaning. He means well, but just has too much of an agenda.” “He seems to have knee jerk reactions and is not as familiar with issues as he should be. He is pro-government or big business and he slants things where he wants them to go. I hope he softens as time goes by.” “You have no chance if you are there on a criminal matter. He is one of my last choices. He never takes any chances.” “His conservative bias is already quite evident. His bias is toward the government. He helps them throughout. He's never my choice.” “He is far too conservative for my liking. He's no where near my first choice. I look to others on a panel for help.”

Griffith writes concise opinions, lawyers said. “His writing is average. He's a man of few words.” “His opinions are slanted and succinct.” “His writing is O.K. He gets the job done. He is not at all scholarly.” “His opinions show his philosophy. They are more concise.” “His opinions show his inclinations. He is succinct.” “His clear bias toward the defense in civil matters and government in criminal cases is evident.” “His writing is not bad. His opinions are more succinct, but with a clear bias.” “His opinions are slanted pro-government and are succinct.”

And Judge Rogers' comments:

Rogers is evenhanded, lawyers interviewed said. “She is a centrist judge. She has no leanings.” “She has no bias I have ever noticed or heard about.” “She gives the benefit of the doubt to the underdog. Be careful and pay attention.” “She is a liberal judge who is a breath of fresh air for this circuit. She protects the underdog in a fair and even manner. She gives plaintiffs every chance to prevail. She will go either way, depending where the law goes.” “She is one of the more evenhanded judges both in civil and criminal proceedings. She is not afraid of the government.” “She is liberal, but has no agenda. She has no leanings ever. She is the fairest to all.” “She never shows any bias. She wants to do the right thing. She is fair to all. She gives the little guy a fair shake. She's usually predictable.” “She is a moderate liberal.” “She is more of a liberal, but extremely fair. She has no agenda. She is very fair to defendants. She makes the government be honest. If a case is weak, she will exploit that.” “She is on the liberal side. She's a breath of fresh air for the court. She is one of the few judges who will listen to creative arguments. She feels for the defense. She keeps the government on their toes.” “She is one of the more evenhanded judges in both civil and criminal proceedings. She is not afraid of the government.”

So drawing all speculative inferences from the aforementioned hearsay and innuendo - and just for fun - I'll predict a 2-1 panel affirmance of Judge Lamberth's decision, with a Rogers dissent. Boy, do I hope I'm wrong.

[Voronwë the Faithful]

Interestingly, both parties have opposed the UC Regents motion to be allowed to intervene. Both parties assert (correctly, I believe) that UC's interests and objectives are identical to that of the NIH. The NIH also makes the point that while it is true that the Regents will be caused irreparable harm by the preliminary injunction, the same is true of all other grantees, and that the fact that the Regents receive the greatest among of grant money does not legally make them any more entitled to intervene than any other grantee. Thus, allowing the Regents to intervene could open the door to other grantees intervening which would just cause additional delays and confusion. The proper course would to allow the Regents to file an amicus brief. The plaintiffs argue in addition that the Regents request should be denied because it untimely.

[Voronwë the Faithful]

The court denied the UC Regents request to intervene, but invited them to participate on appeal as amicus curiae (literally "friend of the court").

Oral argument was heard this morning. It sounds like Judge Griffith at least is leaning against keeping the stay in place. No surprise there.

http://www.google.com/hostednews/ap/art ... QD9IGD2J03

[Voronwë the Faithful]

Wow, the panel ruled yesterday (the day after hearing oral argument), and granted the government's stay request, while at the same time ordering that the government's appeal of the preliminary injunction be expedited. So the funding of embryonic stem cell research will continue, at least until the panel decides on whether to affirm or reverse the granting of the preliminary injunction.

[Voronwë the Faithful]

Judge Lambert has now dismissed the case, saying that he had to follow the lead of the Court of Appeals. So stem cell research funding can continue.

Judge Lamberth dismisses stem cell lawsuit