Scientists who have received—but not yet spent—government funds for human embryonic stem cell research should be shielded from losing those funds, US Justice Department lawyers argue as part of an appeal filed with the judge who has frozen government funding for the research.

In asking for a stay of the court injunction issued on August 23 by district court judge Royce Lamberth (right), the lawyers say that harm to the research enterprise “would increase by such an order of magnitude” should existing grants be frozen that the court should stay the injunction for those grants – even if it does not stay the injunction in its entirety.

The “if” underscores the continuing uncertainty researchers face in the aftermath of last week’s decision.

So far, the Justice Department has interpreted the August 23 injunction by district court judge Royce Lamberth not to apply to the 199 grantees who have already received money from the National Institutes of Health (NIH) for human embryonic stem cell research this year. They are currently free to keep spending what money they have received for their projects – a combined $131 million, NIH director Francis Collins announced last week.

In their memorandum filed in District Court here yesterday, asking Lamberth to stay the injunction until the case can be heard on its merits, Justice Department lawyers reiterated that they “do not construe the Order to require them to take affirmative steps to prevent grantees from drawing down previously issued awards.”

But in a phrase that seems to acknowledge that their interpretation is open to question, they state that, should the judge disagree, and declare that the injunction extends to already-awarded funds, he should nonetheless shield the grantees who already have the money in hand. Not an argument to induce sound sleep at night.

The memorandum also increased, from an earlier-reported 22 to 24, the number of multi-year projects imminently in peril because their next installment of funds was due to be delivered this month. These projects, it notes, have already received a combined $64 million from NIH; blocking the remaining $54 million they are owed, it argues, means that the taxpayer money already invested will be “irretrievably lost.”

The memo describes as vulnerable to “particularly harsh effects” stem cell research that was shut down on the NIH campus on Monday. It provided new numbers for this particular casualty of the injunction: in 2009, there were 8 intramural research projects at NIH, staffed by about 45 scientists and other personnel, worth about $9.5 million combined.

In an accompanying affadavit filed with the appeal, Collins writes that cutting off federal funding “will have drastic economic and scientific consequences.” Arguing that each NIH grant directly supports six jobs, he estimates that over 1,300 full or part-time positions will be lost should NIH lose the case.

At least there is a date certain for the next plot twist: the government’s lawyers ask Lamberth to rule by September 7th. If he doesn’t, they say, they will take the case to the next level – the Court of Appeals for the District of Columbia Circuit – on September 8th.

Photo Credit: Beverly Rezneck