and orders the hearing on the merits of the appeal expedited.

The court heard oral argument for 90 minutes (instead of the scheduled 30) on Monday, September 27, but did not rule from the bench.  On Tuesday, September 28, it issued the following order:

ORDERED that the administrative stay entered September 9, 2010, be dissolved.  It is

FURTHER ORDERED that the motion for stay pending appeal of the preliminary injunction entered on August 23, 2010, be granted. Appellants have satisfied the standards required for a stay pending appeal. See Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32-33 (2010). It is

FURTHER ORDERED, on the court’s own motion, that consideration of this appeal be expedited. The parties will be notified by separate order of the briefing schedule and oral argument date.

So – the injunction is stayed until the appeal is decided and the appeal will be expedited, but we don’t know how much.  This is good news in the short run for the NIH (and stem cell research).  It can continue to implement its stem cell funding program for several more months.

It is also some good news in the middle run.  To stay the injunction, the court had to consider the same four factors that the lower court considered in granting the injunction, but this time from the government’s perspective:  “(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? . . .   (2) Has the petitioner shown that without such relief, it will be irreparably injured? . . . (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? . . . (4) Where lies the public interest? . . .” (quoting Metro Area Transit Commission, quoting an earlier DC Circuit case).

The court’s decision to issue the stay means that it did conclude the government met conditions 2 , 3, and 4 – that the government would be irreparably harmed, that the issuance of the stay wouldn’t substantially harm the plaintiffs, and that the stay was in the public interest.  But one cannot read too much into this on the merits of the dispute.

The Metro Area transit case cited by the court deals with this issue, the first of the four factors – likelihood of success on the merits.  It reads this not to require a 50% or better chance of success.

“An order maintaining the status quo is appropriate when a serious legal question is presented, when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant. There is substantial equity, and need for judicial protection, whether or not movant has shown a mathematical probability of success.”

So the DC Circuit order, short as it is, does contain a warning not to prejudge which side the panel thinks is likely to win on the merits.

Now, whoever the DC Circuit concludes is right about the proper interpretation of Dickey-Wicker, it is hard to reconcile this stay with the underlying preliminary injunction. To grant the injunction, Lamberth had to find that the plaintiffs were irreparably injured, that the government was not substantially injured, and that the public interest required the injunction.  The DC Circuit has just ruled, in effect, the opposite way on all three of those factors, three of the four factors needed to grant a preliminary injunction.  The preliminary injunction therefore should be toast. (A technical legal term meaning “in deep trouble.”)

But that doesn’t resolve the ultimate issue.  Judge Lamberth has set a briefing schedule for opposing motions for summary judgment on the merits of the claim.  (This is nicely covered in a Jocelyn Kaiser article in Science Insider:  http://news.sciencemag.org/scienceinsider/2010/09/government-asks-district-judge.html).  Given Judge Lamberth’s ruling on the preliminary injunction, it seems unlikely that he’ll grant the government’s motion and likely that he’ll grant the plaintiffs.  In that case, that ruling, on the merits, could go to the DC Circuit and could resolve this issue.  (Although, alas, it would still be possible for even such a ruling to be overturned on the procedural ground that summary judgment wasn’t likely and lead to the case being sent back for a full trial.  That seems unlikely, but possible.)

Bottom line:

Good for stem cell research in the short run – the NIH can keep acting.

Good for stem cell research in the middle run – it seems hard to reconcile this order with a finding that the preliminary injunction is appropriate.

Neither good nor bad on the ultimate merits of the Dickey-Wicker argument – this order does not necessarily mean (and, in fact, by citing Metro Area Transit, the court seems to be going out of its way to point out) that the court has reached a conclusion on who is likely to prevail on the merits.