Stem Cell Shock #2: The Preliminary Injunction

In a post yesterday, I described why I think Judge Royce Lamberth’s decision on Monday that the Dickey-Wicker Amendment prohibits the federal government from funding human embryonic stem cell (hESC) research is wrong on the merits. Technically, however, the decision was not a ruling on the merits. Lamberth actually granted the plaintiffs’ motion for a preliminary injunction. Because the issue is a pure question of statutory interpretation, and because the opinion in no way suggested that it was tentative in nature, it seems almost certain that Lamberth will eventually replace the preliminary injunction with a permanent one. But the government is entitled to another day in court before this can happen.

Lamberth’s grant of the preliminary injunction is even more troubling as a legal matter than his quasi-merits determination. To win a preliminary injunction, the plaintiff must show (1) a substantial likelihood of success on the merits; (2) that the plaintiff will suffer “irreparable injury” in the absence of an injunction; (3) the injunction would not substantially harm other interested parties; and (4) that the injunction would further the public interest. The plaintiff must carry the burden of persuasion “by a clear showing.” Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004).

Let’s take a look at Lamberth’s analysis of these four guideposts:

Although I do not agree with the judge’s analysis of merits (i.e., the meaning of the Dickey-Wicker Amendment), under his analysis, the plaintiffs would seem to have a substantial likelihood of success on the merits.

The second question is whether, if the plaintiffs were to eventually prevail on the merits of their claim, a failure to enjoin the government from funding hESC research in the intervening period would cause them irreparable harm. Judge Lamberth finds that the plaintiffs “have met this high burden.”

The plaintiffs argue that the harm is that, as scientists who seek federal funding of their non-hESC research, they have to compete against a larger pool of grant applicants and have a reduced chance of winning funding as long as the government is handing out limited research dollars to hESC researchers. To support his conclusion that this constitutes irreparable injury, Judge Lamberth cites the D.C. Circuit’s prior holding in this case that the plaintiffs’ highly speculative claim of harm is sufficient to give the plaintiffs standing to maintain this lawsuit (a decision that I think is probably incorrect, but that is a different issue). But the standard for demonstrating “injury-in-fact” that is a requirement of standing is not the same as the irreparable injury standard; the preliminary injunction sought by the plaintiffs is an extraordinary remedy. First, the likelihood that the plaintiffs would actually be denied a grant that they would win were if not for the competition of the hESC researchers is quite speculative. Second, if this were to happen, they could be compensated after the fact. That is, should the plaintiffs ultimately prevail on the merits, the court could determine whether any unsuccessful grant proposals submitted in the intervening period had earned a high enough score in the NIH review process that they would have won funding were it not for the fact that hESC projects had not been considered. If the hESC projects squeezed out the plaintiffs project, and the hESC grants are found to be illegal, the court could then order the NIH to approve the plaintiffs’ grant proposals in question. The harm would indeed be reparable, and no rank speculation would be needed to establish its existence or severity.

Regardless of the harm that the plaintiffs will suffer should they ultimately prevail on the merits while the government is permitted to approve grants to hESC researchers in the meantime, Judge Lamberth realizes that in the preliminary injunction analysis this harm needs to be balanced against the hardship that will be suffered by others if the defendants ultimately prevail on the merits but are enjoined from making hESC grants in the intervening period. Here, Lamberth finds that the injunction “would not seriously harm ESC researchers because the injunction would simply preserve the status quo” and “the harm to individuals who suffer from diseases that one day may be treatable as a result of ESC research is speculative.”

There are two substantial flaws in this analysis. First, hESC researchers will suffer more harm from a preliminary injunction than non-hESC researchers will suffer from the lack of an injunction. The plaintiffs still might win NIH grants if an injunction is not granted — the NIH funds all kinds of disease research, including the type of adult stem cell research the plaintiffs apparently do, not just hESC research. But hESC researchers have no chance at all of winning funding if the injunction is issued. Judge Lamberth points out that hESC researchers can seek private funding even if an injunction is in place, but it is equally true that non-hESC researchers can seek private funding if the injunction is not in place!

Second, it is inconsistent, to say the least, to dismiss the potential harm to disease-sufferers as the result of an injunction as speculative because “it is not certain whether ESC research will result in new and successful treatments for diseases,” while saying that the harm alleged by the plaintiffs is “not speculative.” hESC research might or might not cure diseases, and an injunction prior to a final decision on the merits might or might not slow down progress. But it is just as uncertain whether the lack of an injunction will actually cost the plaintiffs grants they would otherwise win. And while both types of harm are uncertain, the severity of the possible harm to disease-sufferers, who might lose their lives in the meantime, is clearly is much worse than the severity of the possible harm to the plaintiff-grant applicants.

Finally, Judge Lamberth finds that “the public interest weighs in favor of a preliminary injunction.” Why? Because it is the public interest for the courts and agencies to carry out the will of Congress. All Judge Lamberth does here is reiterate the first prong of the analysis; that is, because Lamberth believes the plaintiffs are right on the merits, it is the public interest to give them a preliminary injunction. Whatever factors the judge should take into account to determine the “public interest,” logic dictates that the inquiry must be something different than who the judge thinks is likely to prevail on the merits, a point that is already captured elsewhere in the analysis.

At the end of the day, the balance of hardships tilts strongly in the direction of hESC researchers and the patients who hope their work will lead to cures, not in the direction of the plaintiffs who might see their chances of winning a grant reduced. Regardless of who is right on the merits, the preliminary injunction should not have been granted. I am very confident that the D.C. Circuit will quickly reverse Judge Lamberth on this issue and allow the NIH to continue to make grants to hESC researchers while the case winds its way to a final judgment, first in Judge Lamberth’s court and then in the D.C. Circuit.

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