Are We There Yet? The End of the Sherley Case About Dickey-Wicker and Federal Funding for Human Embryonic Stem Cell Research Is Now in Sight

Last Friday, August 24, 2012, yet another nail was pounded into the coffin of Sherley v. Sebelius, the lawsuit contending that any federal funding for human embryonic stem cell (hESC) research violates the Dickey-Wicker amendment.  A few more nails could still be added, but it seems very unlikely that the coffin can ever be opened.

Let’s start with a time-line, then talk about this latest decision, before discussing what’s next.



March 2009 President Obama, by executive order, removes many of President George W. Bush’s limits on federal funding for hESC research and directed the NIH to prepare guidelines for such funding.

July 2009 After notice and comment, the NIH issues such guidance.

August 2009 Various plaintiffs – two researchers who work on adult stem cells, an “embryo adoption” agency, two couples who want to use that agency, the Christian Medical Association, and various unnamed embryos – sue in the U.S. District Court for the District of Columbia, claiming that the guidelines, and the research funding they authorized, violated the Dickey-Wicker Amendment.  This legislation, a rider that had been attached to various appropriations bills covering NIH (among other agencies) since 1996, prohibited any funds appropriated by those bills from being used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero’” under other regulatory and statutory regimes.

October 2009 District Judge Royce Lamberth dismisses the suit, finding that, for varying reasons, none of the plaintiffs has standing to bring the suit.  They either do not have a sufficiently real interest in the claims or, in the case of the embryos, they are not persons. (It is a little hard to find this opinion because the lead plaintiff’s name is misspelled in the caption.)   The plaintiffs appeal.

June 2010 On appeal, a three-judge panel of the D.C. Circuit reverses in part, holding that the two researchers have standing because the new policy gives them more competition for NIH grants. (Sherley I). Judge Ginsburg writes the opinion, joined by Judges Kavanagh and Brown.

August 2010 On remand, and before any further briefing or argument (or warning), Judge Lamberth issues a preliminary injunction, forbidding the NIH from funding any hESC research.

September 2010 Judge Lamberth refuses to stay his injunction pending appeal; the DC Circuit does issue that stay, so that, after an uncertain few weeks, the NIH goes back to processing hESC research grants, though with no assurance about the appellate court’s eventual conclusion.

April 2011 The D.C. Circuit reverses Judge Lamberth’s preliminary injunction, finding, among other things, that Judge Lamberth was wrong about the applicability of the Dickey-Wicker rider, and therefore that the plaintiffs did not have the necessary likelihood of success on the merits.  (Sherley II).  It did so relying on the NIH’s interpretation of Dickey-Wicker under an administrative law doctrine known as Chevron deference.  Judge Ginsburg wrote the majority opinion, joined by Judge Griffith.  Judge Henderson dissented in a scathing opinion.  The case was remanded to Judge Lamberth for further proceedings.

July 2011 Judge Lamberth grants summary judgment to the NIH, concluding that, as an “antepenultimate” court, he is bound by the Circuit’s interpretation of Dickey-Wicker and rejecting the plaintiffs’ other claims.   The plaintiffs appeal.

August 2012 Yet another three-judge panel of the D.C. Circuit affirms Judge Lamberth’s grant of summary judgment in a unanimous decision that prompted three separate opinions.   (Sherley III). Judge Sentelle writes the court’s opinion, with both Judges Brown and Henderson writing separately.

Sherley III – The August 2012 Opinions


So what about the latest D.C. Circuit decision?  Judge Sentelle, the chief judge of the court, ruled that, under the doctrine of “the law of the case,” this panel of the court was bound by the immediately previous panel’s decision (Sherley II) on Dickey-Wicker. This doctrine, which says that a court’s decision on the law applied in a particular case should not normally be changed during that case, is subject to a “preliminary injunction exception”, to which Judge Sentelle devoted most of his opinion.  (Note that in some circuits, a second appeal would normally have been assigned to the same panel, reducing these kinds of conflicts.)  The opinion then rejects, on the merits, two other arguments by the plaintiffs that were not crucial to the reversal of the preliminary injunction and thus were not subject directly to the “law of the case” doctrine.

Judge Henderson concurred in this opinion because of the law of the case doctrine.  She, however, said that, but for the law of the case doctrine, she would vote the other way – i.e., that she was right in her dissent in Sherley II.  Chevron deference should not have applied and the NIH guidelines violate “plain language” of the rider.

Judge Brown also wrote separately, weighing in with a particularly thoughtful opinion. Like Judge Henderson, she believed Chevron deference was not appropriate.  Unlike Judge Henderson, though, she thought the outcome would be the same whether or not Chevron deference were applied, in large part because of the actions of Congress in regularly repassing the Dickey-Wicker language in the face of three different Presidential administration’s willingness to fund at least some hESC research.   It is unclear to me what Judge Brown’s position is on the application of the “law of the case” doctrine.  Her conclusion on Dickey-Wicker says

I thus join in the judgment of the majority opinion though I would reach the decision using the more familiar clear error standard of review under which we must vacate the logic of the prior holding and supply our own should we find that the prior decision was “clearly erroneous and would work a manifest injustice.”


That she would reach the decision without using the “law of the case” doctrine is not quite the same as saying that it does not, also, apply.  She only mentions that doctrine in a footnote, – her opinion does not discuss it except to note, in a footnote, that a “majority” of the panel believes it applies.


The three judges, then, each express significantly different opinions, but they all lead to the same bottom line – the district court’s grant of summary judgment is affirmed.

What’s Next?

The plaintiffs can now, realistically, do three things:  quit, request a rehearing en banc by the entire D.C. Circuit, or seek review by the Supreme Court.  The first option seems unlikely (at least as long as the individual plaintiffs are not paying their own legal fees.)  The third seems inevitable; the question is whether they will first try the second.

Rehearing En Banc

The entire court, sitting en banc, would (presumably?) not be bound to accept an erroneous decision of a court panel as “the law of the case.”  It could decide that Chevron deference did not apply and could adopt Judge Henderson’s view of the meaning of Dickey-Wicker.  But that seems, to me, highly unlikely.

This case has now been heard by the three D.C. Circuit panels, encompassing a total of six different judges:  Ginsburg (twice), Henderson (twice), Brown (twice), Sentelle, Kavanagh, and Griffith.  During the pendency of the case, the D.C. Circuit has had nine active judges – it currently has only eight as Judge Ginsburg took senior status last October.  Of those nine judges, six were appointed by Republican presidents (two by President Reagan, one by President George H.W. Bush, and three by President George W. Bush) and three by Democrats (all by President Clinton).  Oddly, Sherley I, II, and III were heard by the six judges appointed by Republicans; none of the three Clinton-appointed judges sat on any of those panels.  I am not making a conspiracy argument – randomness throws up coincidences frequently.  But it means that plaintiff’s chances of winning at an en banc hearing a very low.

With Judge Ginsburg on senior status, barring any new confirmations before the en banc argument (which seem highly unlikely given the pending election, even though President Obama appointed Sri Srinivasan – one of my former students! – to a seat last June), the en banc court would include Judges Sentelle, Brown, Garland, Griffith, Henderson, Kavanagh, Rogers, and Tatel.  Judges Brown and Griffith have already held that Dickey-Wicker does not apply.  Although, in general, I do not like to assume judicial votes based on who appointed a judge, I think this government’s case on the merits is so strong here that judges without a strong political or ideological opposition to stem cell research would vote for the government.  I therefore think it highly unlikely that Judges Garland, Rogers, or Tatel would reverse.  That’s five votes to affirm out of eight.  Judge Henderson would clearly vote to reverse.  Judge Kavanagh participated only in the standing decision in Sherley I so his vote on the merits is unknown.  Judge Sentelle could consistently vote to reverse – his decision in Sherley III on Dickey-Wicker was founded on the law of the case doctrine, which might not apply en banc – but his opinion gives no sign that he would.  So, I make the best plausible case for the plaintiffs as five votes to affirm, one vote to reverse, and two uncertain votes.  (Oh, and a four to four tie would preserve the panel decision.)

They can still seek such a rehearing, in spite of the odds stacked against them, but would the Court grant it?  It takes a majority of the active members of a circuit court to grant a rehearing en banc.  Would five of those judges vote to grant an en banc rehearing that is highly likely to affirm the district court decision?  It seems unlikely but not impossible.  Perhaps five judges think the issue of whether Chevron deference is appropriate with respect to an appropriations rider a) was probably wrongly decided in Sherley II, and b) is important enough to “correct” in a case where it is highly unlikely to change the outcome.   I doubt it, but it could happen.

The plaintiffs have 45 days from the decision to request rehearing en banc.  The court will not ordinarily grant such a petition without requesting a response to it from the other side.  So we should know before long whether the plaintiffs are going to make the request and, if so, whether the D.C. Circuit is going to take the request seriously enough to seek a response from the government.

Supreme Court review

Whether or not the plaintiffs seek a rehearing en banc, they can petition the Supreme Court to hear the case.  It takes the votes of at least four justices to grant such a petition.  How likely is that?

Not very.  The Court most commonly hears cases where the lower courts are split, so that it can resolve those differences and provide a uniform legal rule.  There is no split on this issue; no other court has ruled on the applicability of Dickey-Wicker to hESC research.  (And, from reading Judge Henderson’s opinion in Sherley III, it doesn’t look like any other court has ruled on the applicability of Chevron deference in a similar situation.)

Furthermore, Dickey-Wicker is a year-by-year appropriations rider. Any decision the Supreme Court made could be modified through the next Congress changing the language in the rider.  This decreases the importance of a Supreme Court decision in this case – if the D.C. Circuit’s interpretation of Dickey-Wicker is wrong, Congress not only can correct it, but also will necessarily have an opportunity to correct it the next time it considers the rider.

With no powerful reason to hear the case, a decision to hear it could look very political.  (This, of course, is particularly true if, like me, you think the D.C. Circuit’s opinion is, on the law, clearly right.) The Court generally does not want to look political; after the decision in the health reform cases, it may have a particularly strong reason to avoid reaching out unnecessarily to take a politically charged case.  Of course, maybe there would be four votes to be politically provocative – the four dissenters in the health reform cases, for example.  But it really seems unlikely to me.  Absent a split in the lower courts, the Supreme Court really should not want to review a decision by the D.C. Circuit in this case, whichever way it ended up going.

The Future Time-Line

If the plaintiffs seek rehearing en banc, we should get know before the end of 2012 whether that is going to be granted.   Assuming that en banc review is not granted, the plaintiffs would then file their petition for review to the Supreme Court no later than early 2013 and the Supreme Court should deny that petition in the spring of 2013. If the plaintiffs seek to go straight to the Supreme Court, I would expect a final answer by the end of 2012.



This is the ninth blog post I’ve written about Sherley v. Sebelius.  I hope it is the penultimate (one more for when the Supreme Court denies review) or the antepenultimate (another one if rehearing en banc is sought and denied).  I’m not prepared (quite) to say those posts have been wastes of time, but I do think this litigation was a waste of time.  The plaintiffs took an implausible claim about Dickey-Wicker, one that had been rejected by the Clinton, Bush, and Obama Administrations, and turned it into 36 months, and counting, of uncertainty about the legality of federal funding for hESC research – including several weeks of panic in 2010.

I don’t (really) blame the plaintiffs.  I think their case was weak but not frivolous.  I do think Judge Lamberth’s decision on standing would have cut this case appropriately short.  Even after the D.C. Circuit’s unfortunate reversal, if Judge Lamberth had denied the preliminary injunction, the uncertainty would have been both much smaller and much shorter.

We might be able to guess how much money and time in litigation expenses the metastasized version of this case has eaten up. I see no way to quantify how much money, and how many career, were diverted away from stem cell research because of the suit, and hence how much potentially valuable medical research was slowed.  Ultimately, I largely* agree with Judge Brown’s final paragraph – this litigation over Dickey-Wicker was a poor way to decide the question of federal funding for hESC research:

The challenging—and constantly evolving—issues presented by bioethics are critical and complex. Striking the right balance is not easy and not, in the first instance, a task for judges. What must be defended is “the integrity of science, the legitimacy of government, and the continuing vitality” of concepts like human dignity.  Given the weighty interests at stake in this encounter between science and ethics, relying on an increasingly Delphic, decade-old single paragraph rider on an appropriations bill hardly seems adequate. [footnote omitted]

And, in fact, we do have other ways to resolve these issues.  A major one will take place this November 6.  A judgment against the plaintiffs in this case means that the NIH, and its boss, the President, may legally spend money on (some) hESC research.  It does not mean they must.  The choice between President Obama and Governor Romney has strong implications for the federal funding of hESC research (among many other things) – and, for all the many flaws of Presidential elections, it is surely a better way of resolving these issues than Sherley v. Sebelius.

Hank Greely

* My disagreement is limited to my strong skepticism about the value of the concept of “human dignity,” at least as it is often invoked in bioethics decisions – but that’s a (long) subject for another day.