The D.C. Circuit Court of Appeals has upheld National Institutes of Health (NIH) guidelines on federal funding of stem-cell research, finding that the agency properly interpreted the Dickey-Wicker amendment, attached as a rider to a number of federal appropriations bills, when it distinguished between research using but not creating stem cells from human embryos and allowed funding for the former but not the latter. Sherley v. Sebelius, No. 11-5241 (D.C. Cir., decided August 24, 2012). Accordingly, the court affirmed the district court’s grant of the federal government’s motion for summary judgment.

The court decided that its previous ruling, which remanded the matter to the district court, constituted the law of the case, and thus it would not revisit two of the challengers’ issues. Those issues were that (i) the NIH guidelines violate the Dickey-Wicker ban on federal funding of “research in which a human embryo or embryos are destroyed,” and (ii) the guidelines violate the amendment’s ban on “research in which a human embryo or embryos are . . . knowingly subjected to risk of injury or death” because federally funded embryonic stem cell (ESC) research increases the demand for more ESC lines, “which in turn incentivizes the destruction of more embryos to create those lines.” The court’s previous ruling applied Chevron’s deferential standard to NIH’s statutory interpretation in rejecting the challengers’ request for preliminary injunction.  

The court also determined that NIH was not required under the Administrative Procedure Act to specifically respond to comments asking the government to cease funding all stem-cell research. The guidelines had been developed under President Barack Obama’s (D) executive order restoring funding to certain stem-cell research, and because the order’s “entire thrust was aimed at expanding support of stem-cell research, it was not arbitrary and capricious for NIH to disregard comments that instead called for termination of all ESC research.”  

Two of the three judges on the D.C. Circuit panel wrote separately to concur in the result only. Both believed that the court should not have deferred to NIH under a Chevron analysis during the first appeal. Judge Karen LeCraft Henderson agreed that the court was nevertheless bound by the law of the case, but noted that if the court had not deferred to NIH’s interpretation, it would have invalidated the guidelines in the first instance “as contrary to the Amendment’s plain and unambiguous text.” Judge Janet Rogers Brown opined that de novo review would not change the outcome of the prior decision that affirmed NIH’s interpretation, but distanced herself from the majority’s failure to impose “any clear limits on an agency’s ability to ignore comments that contravene the executive’s policy goals.”