Lawyers on both sides in today’s embryonic stem cell research argument before the D.C. Circuit left the argument feeling optimistic, according to Merideth Wadman at the Nature News Blog. Wadman reports that the panel focused on whether the law of the case doctrine requires it to follow the opinion of the prior D.C. Circuit panel that vacated District Judge Lambert’s preliminary injunction. Judge Henderson, who was the dissenting member of the prior panel, reportedly asked no questions at today’s argument. The other members of today’s panel are Chief Judge Sentelle and Judge Brown.
The Supreme Court held in University of Texas v. Camenisch that “the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” District Judge Lamberth did not dispute that under Camenisch the D.C. Circuit’s preliminary injunction decision was not the law of the case, but he held that the mandate rule compelled him to follow the appellate court’s holding on remand.
Today’s appeal also involves an Administrative Procedure Act challenge based on NIH’s alleged failure to respond to comments.
- Berrigan v. Sigler, 499 F.2d 514, 518 (D.C. Cir. 1974) (“The decision of a trial or appellate court whether to grant or deny a preliminary injunction does not constitute the law of the case for the purposes of further proceedings and does not limit or preclude the parties from litigating the merits decided.”)
- Meredith Wadman, Stem Cell Argument Heard in US Appeals Court, Nature News Blog (April 23, 2012) (“Brinkmann, the lawyer representing the government, argued. ‘This court’s earlier opinion provided an authoritative interpretation of the law that applies here,’ she said. It’s ‘an authoritative construction that this court should adhere to.’ [¶] Chief Judge David Sentelle one of the three-judge panel, pushed back, saying that Berrigan [v. Sigler] seems pretty clearly to say that the current panel isn’t controlled by its predecessor’s findings.”)
- Mike Scarcella, DOJ Defends Human Embryonic Stem Cell Research Guidelines, Blog of Legal Times (April 23, 2012)
- Jocelyn Kaiser, In Stem Cell Appeal, Arguments Over Technicalities, Science Insider (April 23, 2012) (“Although Chief Judge Sentelle asked some prickly questions of Brinkmann (e.g.: If the majority of funding for hESC research doesn’t come from NIH, why are you bothering to litigate?), at several points he seemed sympathetic to the government. He asked whether NIH should have considered comments that were opposed ’180 degrees.’ He also brought up NIH’s argument that if Congress didn’t like NIH’s interpretation of Dickey-Wicker, it would not have repeatedly passed the law without changes.”)
- Embryonic Stem Cell Research Panel Has a History with the Case, D.C. Circuit Review (Dec. 10, 2011)
- Embryonic Stem Cell Research Foes File Appeal, D.C. Circuit Review (Sept. 19, 2011)
- Young v. Motion Picture Ass’n of Am., Inc., 299 F.2d 119, 121-22 (D.C. Cir. 1962) (“This is not a case in which we deem it appropriate to attempt to determine, or to canvass in any way, the merits of the alleged cause of action. As was said in Benson Hotel Corp. v. Woods, 168 F.2d 694 (8th Cir. 1948), ‘nor would any determination of those questions (presented by motion for preliminary injunction) by this court on appeal be binding on the trial court nor upon either of the parties in considering and determining the merits of the controversy.’”)