Earlier this morning, Judge Royce Lamberth issued an opinion and order granting summary judgment to the NIH in Sherley v. Sibelius and denying summary judgment to the plaintiffs.  This is another step toward ending the uncertainty about the legality of federal funding of such research, uncertainty largely created by Judge Lamberth on August 23, 2010.  (The opinion can be downloaded here, from Jocelyn Kaiser’s ScienceNews post:  July 2011 decision.

A brief review of the bidding.  In August 2009, various plaintiffs, including two researchers (James Sherley and Theresa Deisher), various “embryo protection” groups, and some unnamed embryos themselves, filed suit in the D.C. district court to enjoin the NIH’s new guidelines for funding human embryonic stem cell research, which had been issued pursuant to an Executive Order from President Obama.   The case was assigned to Judge Lamberth who, on October 9, 2009, promptly granted the government’s motion to dismiss on the ground that the plaintiff’s lacked standing.

Somewhat surprisingly, on June 25, 2010, the DC Circuit reversed this decision on standing, in a unanimous opinion written by Judge Douglas Ginsburg.  The court found that the two researchers had alleged sufficient competitive injury from the fact that added competition for stem cell research funds harmed them by affecting their chances of getting their own research funded.  I blogged on that decision, opining that it seemed wrong (and a bad idea) to me, but was unlikely to be very important as the plaintiffs’ case on the merits here was so weak.   Standing Decision Post.

Imagine my surprise when, eight weeks later – as soon as the mandate was returned from the Court of Appeals – Judge Lamberth, without seeking briefing or argument from the parties, granted a preliminary injunction to the two scientist-plaintiffs on the ground that the policy violated the plain language of the Dickey-Wicker amendment, an appropriations rider added annually since 1995 that forbids HHS from funding any research “in which” embryos are harmed.  I blogged on that, too, expressing my surprise – and echoing the surprise and shocked of stem cell researchers and the NIH.   August 2010 decision post.

The NIH appealed the preliminary injunction and the Court of Appeals stayed the injunction, allowing NIH to continue to fund the research while the appeal was pending.  Stay, Post 1; Stay, Post 2.  On December 6, 2010, the court heard oral argument and on April 29, 2011, the court reversed.   Judge Ginsburg again wrote the court’s opinion, joined by Judge Griffith; Judge Henderson dissented.  And I blogged about that.  Speculation Before Decision; Reversal.

The case then went back to Judge Lamberth for his decision on the merits.  Both sides had motions for summary judgment. He called for supplemental briefing in light of the Court of Appeals decision. He could then have ruled in favor of one or the other of the moving parties or denied both motions and gone to a trial on the merits. Today he granted the government’s motion for summary judgment, denied the plaintiff’s motion, and moved the case along.

Today’s decision encompassed four steps.  First, Judge Lamberth rejected the government’s argument that, in spite of the Court of Appeals decision, these plaintiffs lacked even competitive injury standing.

Second, he rejected the plaintiffs’ arguments that he should find that the  Court of Appeals was wrong about the clear meaning of Dickey-Wicker and the application of the Chevron doctrine (an administrative law doctrine requiring courts to defer to an agency’s interpretation of an ambiguous statute).  Judge Lamberth seemed to indicate that he still thought he had gotten it right the first time, but he ruled that he had to follow the Court of Appeals decision on this matter of law.

Third, he rejected the plaintiffs’ argument, not considered by the Court of Appeals directly, that the NIH policy violated another part of Dickey-Wicker.  He found that, once again, applying the legal analysis of the Court of Appeals decision, the statutory language was ambiguous and the NIH’s interpretation was reasonable.

Finally, he rejected the plaintiffs’ argument, not considered at all by the Court of Appeals, that the policy had been adopted in violation of the Administrative Procedures Act. Plaintiffs argued that the NIH hadn’t even considered all the many comments asking it to eliminate or limit further such research.  Judge Lamberth agreed with the government that the NIH was implementing an Executive Order that told it to expand such research; those comments were irrelevant.

I thought this was a graceful, gracious, and fully professional opinion by Judge Lamberth.  The poor man had been been reserved twice by the DC Circuit, in different directions.  He did not attempt to play games with the latest Circuit decision and follow its letter while avoiding its intent.  While making it clear that he thought he had been right, he did what a judge is a supposed to do in applying the law in light of his position in the judiciary hierarchy. As he (nicely) said:

“While it may be true that by following the Court of Appeals’ conclusion as to the ambiguity of “research,” this Court has become a grudging partner in a bout of “linguistic jujitsu,” Sherley, 2011 WL 1599685, at *10 (Henderson, J., dissenting), such is life for an antepenultimate court.”

How many times, after all, does one see the word “antepenultimate”?

So now what?

The plaintiffs could do four things:

1.   Ask Judge Lamberth to reconsider his decision:   Good luck with that.

2.  Appeal to the DC Circuit:  I think this is likely.

3.  Ask the US Supreme Court to take the case directly:  Good luck with that, too – the Court does that very rarely and only in real emergencies.

4  Quit:  I doubt it.

I assume they’ll appeal to the DC Circuit.  As I read the Circuit rules, the case is likely to be re-assigned to the same panel that heard the preliminary injunction – the legal issue is the same.  In that case, I would expect another 2-1 opinion for the government.  That would probably take another 10 to 18 months to decision, assuming full briefing and oral argument.  I’m not certain the case would get full briefing and oral argument, but there are two issues that weren’t discussed in the appeal of the preliminary injunction, so I suspect it will.

If, as I expect, the plaintiffs lose, they can seek rehearing en banc.  As I count the DC Circuit’s likely votes on this, that should be a loser.  Or (and) they can file a petition for certiorari to the Supreme Court.  I suspect the Court wouldn’t take this case – no Circuit split, for one thing – but one never knows.  And there are certainly justices with very different ideas of how statutes should be read.  But my best guess is that, sometime in 2013, the Supreme Court denies cert in this case and this question mark over human embryonic stem cell research funding is ended – though there may certainly be other questions raised between now and then.

It is tempting to say “all’s well that ends well”.  The judiciary seems to be headed to making a decision in this matter that is both (in my view) clearly legally correct and good policy.  But those who have suffered from the last 11 months of scrambling, uncertainty, and expense might have a different view.  It is one of the costs of our system of government – happily, in this case, so far, not a terribly high cost.