Appeal filed in the Sherley embryonic stem cell case

Yesterday the plaintiffs suing the NIH over its funding of stem cell research filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit of Judge Royce Lamberth’s grant of summary judgment for the government.  This blog has followed the sage of this lawsuit over at least seven times over the past 2 1/2 years.  See summary judgment for the latest post, back in July.

Earlier in the year the DC Circuit had reversed Judge Lamberth’s grant of a preliminary injunction against the NIH, expressing its view that the plaintiffs were not only not likely to win on the merits, but were likely to lose.  The appellate court’s reasoning led Judge Lamberth’s grant of summary judgment for the NIH.

There was some uncertainty what course the plaintiffs would take – seek rehearing en banc on the preliminary injunction, seek Supreme Court review on the preliminary injunction, or forget about that and proceed with an appeal of the summary judgment.  They appear to have chosen the latter – which makes sense.

I’d guess we’ll see a briefing schedule that leads to argument in the late winter. I suspect that the case will be assigned to the same panel that ruled on the preliminary injunction, as the issues are very similar.  But we’ll see.