Flynn V. Holder Rehearing Denied

Earlier this week, the 9^th Circuit denied the government’s petition for rehearing and rehearing en banc in Flynn v. Holder, the bone marrow donor compensation case that I’ve discussed before here, here, and here.  The order is here.  Download Flynn v Holder AMENDED

It includes an amendment to the opinion to reject the government’s argument -- contained in the petition for rehearing but not its initial brief -- that because Congress defined “bone marrow” in another statute to include cells found in peripheral blood, “bone marrow” should be given the same meaning in NOTA.  That always seemed like a weak argument to me, given the very different purposes of the two provisions, so I’m happy to see it rejected. 

Thus, for now at least, it seems that Flynn v. Holder is over.  There is, of course, the possibility of appeal or a request for legislative action, though, given the narrow 9^th Circuit holding, perhaps the government will simply let it be (a possibility discussed in this post and in the comments to it). 

My thanks to Glenn Cohen for the tip.