Flynn v. Holder – The Fight Continues

Via Al Roth comes news that the government is fighting the recent Flynn v. Holder decision, which held that bone marrow donors could be legally compensated (for peripheral blood stem cells obtained through apheresis).  According to press reports (here and here), the Department of Justice has asked the Ninth U.S. Circuit Court of Appeals for en banc review of the Dec. 1 panel ruling. I blogged about the case earlier here.

Interesting timing, from my perspective: my Taboo Trades seminar is discussing Flynn v. Holder next week, concluding a two-week segment on blood.  I vary the readings from year to year, but this year assigned Titmuss, Arrow’s response to Titmuss, Singer’s response to Arrow, Lacetera, et. al, and Flynn v. Holder.  I’ve included full cites below the fold for anyone interested.

I’m sure I’ll be back again with more on the case and/or our discussion of taboo trades more generally.  This year’s group seems particularly bright and interesting (yes, I do say that every year . . . but every year it’s true).

I’m actually a bit surprised that the government continues to fight this, especially through the courts (and especially on a 3-0 decision), as opposed to through the legislature, though I’m certainly no expert on appellate litigation strategy.  I note that in his recent New England Journal of Medicine article on the case, Glenn Cohen stated that, though the government could ask for a rehearing en banc:

Given the narrowness of the Ninth Circuit holding, however, the government may be content to leave it in place and instead seek redress through the legislative process — or merely accept the formation of markets for peripheral-blood stem cells. Nothing in the Ninth Circuit decision foreshadows the creation of markets in any other types of organs.

And I guess that’s what I figured as well.  Perhaps some of our many Loungers with DOJ or other government experience will have thoughts to share on the government’s possible strategy, which I welcome.

 

 

(1) Richard Morris Titmuss, The Gift Relationship: From Human Blood to Social Policy

(2) Kenneth J. Arrow, Gifts and Exchanges, Philosophy  and Public Affairs, Vol. 1, No. 4 (Summer, 1972), pp.  343-362  

(3) Peter Singer, Altruism and Commerce: Titmuss against Arrow, Philosophy and Public Affairs, Vol. 2, No. 3 (Spring, 1973), pp. 312-320  

(4) Nicola Lacetera, et. al., Rewarding Altruism? A Natural Field Experiment (NBER working paper)

(5) Flynn. V Holder (Ninth Cir. 2011)  

 

 

Comments

[I. Glenn Cohen]

Kim, I've read the rehearing petition (by my old office at the DOJ's Civil Division, Appellate Staff). It basically shows some legislative history and other statutes that suggest the reading of NOTA given by the 9th Circuit was off. It also carps about the fact that the issue wasn't argued below, or really briefed, but came up mostly in the oral argument (which I listened to in preparation for my NEJM piece).
Having worked at this office before, my guess is that there was some pressure from HHS or other affected agencies to file for rehearing en banc, and they thought there was not too much to lose in pressing this limited statutory construction argument upon rehearing with the thought that it was unlikely to re-open the Equal Protection or Substantive Due Process can of worms. All that said, the Solicitor General's approval is required to file for rehearing in such a case, so the decision was one that was definitely thought out and not merely knee-jerk.

[Kim Krawiec]

Thanks for the insights, Glenn. If you're able to share a copy of the rehearing petition, I'd love to see it. Couldn't find it searching around on-line last night.