Four and half months after oral argument, a three judge panel of the D.C. Circuit has reversed the preliminary injunction against NIH funding of human embryonic stem cell research.

The Court of Appeals Decision

As I predicted in a March 7, 2011 post, the court was split. Judge Douglas Ginsburg wrote a strong majority opinion upholding the government’s argument against the preliminary injunction. Judge Thomas Griffith joined him. Judge Karen LeCraft Henderson dissented, accusing the majority of performing “verbal jujitsu” in ignoring the plain meaning of the Dickey-Wicker Amendment.

I won’t go into all the details of the fight here (see my CLB blog posts for August 31, 2010, as well as September 22 and 28), but, in essence, the controversy concerns the Dickey-Wicker amendment, an appropriations rider passed in every NIH appropriations bill since 1996 (and incorporated indirectly in every continuing resolution covering the NIH). The amendment prohibits NIH from funding “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero . . . . “

Judge Ginsburg’s very solid opinion first goes into an “inside baseball” fight about how the DC Circuit reviews preliminary injunctions. A preliminary injunction may issue only when (quoting from an earlier DC Circuit opinion) a plaintiff can show

[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.

There is a fight over whether all four factors must be demonstrated to a strong level or whether a particularly good showing on one of them can outweigh a weaker showing on another. This may be important in the DC Circuit; it need not detain us.

He then analyzes this preliminary injunction and finds that it fails on both likelihood of success on the merits and the balance of equities. On the first, and, because it is relevant to the merits of the underlying suit, more important point, he finds, first, that the statutory language is ambiguous on whether it applies only to research projects that themselves destroy embryos or those using the products of earlier destruction. He then moves to the second leg of this so-called “Chevron” analysis and finds that the agency’s interpretation of the statute is reasonable. He particularly argues both the tense used in the statute (“research in which a human embryo or embryos are destroyed”) and the fact that Congress kept re-passing the amendment with the same language after three different Administrations had adopted the permissive interpretation.

The majority opinion then discusses the balance of equities and finds that the district court got the balance backwards. The plaintiffs’ harms are uncertain and weak, but the embryonic stem cell researchers harms are clear and certain. And, in passing, the opinion demolishes the district court’s argument that the embryonic researchers could always get private money – but, apparently, the plaintiffs could not.

I do not find Judge Henderson’s opinion very convincing, but, then, I don’t think that side has much of an argument. She focuses on the meaning of “research” and on the absurdity, in her view, that research that depends on destroyed embryos is not research that destroys embryos. Maybe I’ve worked on too many NIH grant applications (actually, working on one is working on too many), but it seems to me quite clear that the research funded by the NIH is what you tell the NIH you want to do with their money.

I will confess to the cynical thought that Judge Henderson might be currying favor with conservatives in the hope of a future Supreme Court nomination. Happily, a quick look at her biography dispelled this unworthy thought – born in 1944, she is not a likely nominee.

What’s Next?

So what happens next? That question needs answering at two levels – further proceedings on this appeal and the “real” action on the merits at the district court.


The plaintiffs have several choices for what to do about this decision. They can just ignore it and concentrate on the case on the merits before Judge Lamberth, though, as discussed below, this decision hurts them in that court, too.

They can ask for rehearing by the panel or for rehearing en banc by all 9 active members of the DC Circuit. They have 45 days to petition for either rehearing. Rehearing by the panel seems very unlikely, barring some very new and very relevant facts. Rehearing en banc is a possibility but I think a slim one.

Rule 35(a) of the Federal Rules of Appellate Procedure provides that

An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or

(2) the proceeding involves a question of exceptional importance..

As far as I can tell, this case does not involve conflicting decisions within the Circuit – even if there is a real difference on how to review preliminary injunctions, Judge Ginsburg made it clear that this injunction should be reversed under either test. Does it involve “a question of exceptional importance”? Well, it does to embryonic stem cell opponents, but it’s hard to see the exceptional legal importance of the interpretation of the language of an appropriations rider, which Congress can change anytime it considers it, which it needs to do every year. Still, a judge could find it of exceptional importance.

But it takes a majority of the active judges to vote for a case to be reheard en banc and it takes at least one judge to ask the others to vote on the petition. Judge Henderson might ask for such a vote, but could she have any reasonable expectation of getting four other votes? I think not. Judges Ginsburg and Griffith, the majority at the panel, are unlikely to agree. Judges Tatel, Garland, and Rogers are all generally viewed as liberal and seem unlikely to agree. That leaves Judge Henderson with Judges Sentelle, Kavanagh, and Brown. Those three were appointed by Republican presidents (President Reagan for Sentelle; the second President Bush for the other two), but, then, all three of the panel judges were appointed by Republicans (Judge Ginsburg by President Reagan, Henderson by the first President Bush and Griffith by the second). I know of no particular reason to think that these judges feel strongly about stem cell research and would come to believe that the panel decision needs another hard look. But even if they do, that only makes four judges. And four out of nine won’t even get the petition granted, let alone the decision reversed.

The plaintiffs could also skip the petition for rehearing and file a petition for certiorari to the Supreme Court. The plaintiffs would have a real problem in that there is no circuit split on this point. Other circuits have not weighed in on this issue. (The Fourth Circuit, like the DC Circuit, did weigh in on standing in these cases, but in a case that was different enough from the DC Circuit that there is not even a split on standing, let alone on the merits.) Also, instead of deciding the issue on an appeal of a preliminary injunction, where other issues, like balance of the equities, could keep them from reaching the merits of the Dickey-Wicker interpretation, the Court could just wait for the decision on the merits. And, finally, the Court may well want to avoid such a politically charged case, particularly where Congress can easily react to the Circuit’s decision.

Back at the District Court

This decision just overturns the preliminary injunction, which has been stayed pending the appeal anyway. Judge Lamberth now has cross-motions for summary judgment in front of him. He took the position in granting the injunction that the plaintiffs had a high likelihood of success on the merits. The court of appeals decision says that they don’t. He might maintain his earlier position, though it would take substantial chutzpah. He is known to have chutzpah, but I think not that much. There are a couple of other arguments (including one on the Administrative Procedures Act) that were not addressed by the Court of Appeals (because they were not addressed by Lamberth in his preliminary injunction decision). He could use one of them to rule for the plaintiffs, though I don’t think they are strong.

I think Lamberth should now grant summary judgment for the defendants and is likely to do so, but not certain. That should be known fairly soon. It will be interesting to see whether he calls for supplemental briefing on the effects of the Court of Appeals decision on the summary judgment motion. If he doesn’t, he should be able to decide the summary judgments any day now.


April 29 was a good day for embryonic stem cell research. It has no immediate effect, as the injunction had been stayed, but it helps eliminate some of the legal uncertainty around this funding. It is not the end of the legal wrangling, but I think it greatly weakens the most serious legal challenge to this research.

I think it was also a good day for the law. Three judges appointed by conservative Republican presidents decided, albeit 2 to 1, to allow this research by applying the law. Anyone foolish enough to think that they can count judicial votes solely by looking at who appointed the judges are once again proven wrong. I am not saying that politics has no role in judicial decisions and that the identity of the appointing president would not be one useful factor in an attempt to predict a case’s outcome. But it is not the only factor. And for that we can all be glad.

Hank Greely