Three-judge panel asks for oral arguments on stem cell ban

Department of Justice remains curiously silent on case

The Circuit Court of Appeals for the District of Columbia said Wednesday that it will hear oral arguments about whether to suspend a lower court’s preliminary injunction barring federal funding for human embryonic stem cell research.

Arguments will be heard at 10 a.m. on Monday, Sept. 27. It had previously been expected the court would decide on the strength of briefs filed before it, the last of which is due Sept. 20. The court will probably rule a few days after oral argument.

This is the latest step in a complex legal back-and-forth between the National Institutes of Health and James L. Sherley and Theresa A. Deisher, the adult stem cell researchers who are suing the government alleging that a congressional appropriations rider prohibits the NIH from funding embryonic stem cell research that uses stem cell lines created after August 2001.

The flurry began when a lower court issued a preliminary injunction on Aug. 23. That injunction barred the NIH from spending federal funds on research that uses cell lines derived in the past decade. It appeared to come as a surprise to the NIH and to researchers, who were caught without a plan.

But the Obama administration and the NIH interpreted the injunction much more strongly, saying that it barred even the research that was considered acceptable under the President Bush’s stem cell guidelines — guidelines which permitted the use of cell lines derived prior to 2001.

The DOJ appealed the preliminary injunction to the appeals court on on Aug. 31, and at the same time asked Judge Lamberth to temporarily suspend, or stay, his injunction barring the research, while the appeal took place.

Sherley and Deisher have made clear they believe the government’s interpretation is incorrect, and that the Bush lines could still be used. Neither the NIH nor the Department of Justice have offered any clarification on this point.

Judge Royce C. Lamberth of the District Court for the District of Columbia denied the government’s stay request on Sep. 7, characterizing the government’s interpretation of his injunction as “incorrect.”

On Sep. 8, the DOJ asked the appeals court to issue a stay. The next day, Sep. 9, the appeals court granted an “administrative stay,” merely to allow the court time to consider the arguments — the stay is explicitly not a “ruling on the merits.”

Sherley and Deisher filed their detailed written opposition to the stay with the appeals court on Tuesday, and they reiterated many of the same arguments from their lower court briefs. They also noted several new points, noting that the government has not “consistently interpreted” the appropriations rider, citing a 1996 memo from the NIH to Georgetown researcher Wendy Fibison.

They also take issue with the government’s characterization of the legislative history. And they suggest the NIH’s statement that it would take six to eight months to restart suspended stem cell research is inconsistent with the fact that the NIH appears to have immediately restarted that research when the administrative stay was issued last week Thursday (Sept. 9).

In contrast, the government has been less responsive and more quiet. The DOJ had no response to Tuesday’s filing by Sherley and Deisher, nor have they responded to their earlier filing saying the injunction did not apply to Bush-era stem cell lines. The NIH refers all inquiry to the DOJ.

Sherley is an adult stem-cell researcher who was denied tenure by MIT in 2007 and now works for the Boston Biomedical Research Institute; he alleged race was a factor in his tenure case and staged a hunger strike in response.

Deisher is a therapeutic adult stem cell researcher at AVM Biotechnology, a firm she founded, in Seattle, Wash.

Both are members of an advocacy group, Do No Harm, which calls itself “The Coalition of Americans for Research Ethics.”

The lawyers for Sherley and Deisher, are all working pro bono, meaning free of charge, because they believe the work is in the public interest. The lead counsel is Thomas G. Hungar, a partner at the high-powered law firm of Gibson Dunn & Crutcher; five Gison Dunn associates are also on the case. They are joined by Samuel B. Casey of Advocates International and Steven H. Aden of the Alliance Defense Fund.