James Sherley v. Kathleen Sebelius
402 U.S. App. D.C. 178
D.C. Cir.2012Background
- Appellants are adult stem cell researchers challenging NIH guidelines that fund embryonic stem cell (ESC) research.
- District court granted summary judgment for the Secretary; appellants had standing as competitors and appealed.
- Dick ey-Wicker Amendment prohibits funding for research destroying embryos or involving embryos at risk; validity of guidelines is disputed.
- NIH Guidelines distinguish ESC research using existing lines (fundable) from embryo destruction (not fundable).
- Executive Order 13,505 directed expansion of responsible stem cell research funding; guidelines were issued July 2009 implementing that order.
- Court reviews district court under de novo APA standard; issue centers on statutory interpretation and agency deference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dickey-Wicker compliance | Dickey-Wicker bans funding of embryo destruction in ESC research. | NIH reasonably interprets 'research' as a discrete project excluding derivation. | Guidelines upheld; NIH interpretation reasonable. |
| Chevron deference applicability | Chevron applies to NIH’s interpretation of the Amendment. | Chevron not applicable; statute rider not agency-administered. | Chevron deference not controlling; analysis de novo or by ordinary review per Henderson concurrence—majority stands on other grounds. |
| Failure to reply to comments (APA) | NIH ignored significant comments opposing ESC funding. | NIH adequately considered Executive Order goals; ignores contrary comments where not relevant to order. | NIH's responses were not arbitrary or capricious; agency properly implemented the Order. |
Key Cases Cited
- Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) (upheld NIH Guidelines under Chevron for Dickey-Wicker interpretation (preliminary review context) and law-of-the-case posture)
- Berrigan v. Sigler, 499 F.2d 514 (D.C. Cir. 1974) (preliminary injunction law-of-the-case exception)
- Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008) (preliminary relief law-of-the-case persuasive value)
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (U.S. 1984) (establishes deference to agency interpretations of ambiguous statutes)
- Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir. 1977) (agency must respond to significant public comments to avoid arbitrary action)