Sherley v. Sebelius
| Decision Date | 27 October 2009 |
| Docket Number | Civ. No. 1:09-cv-1575 RCL. |
| Citation | 686 F. Supp.2d 1 |
| Parties | James SHERLEY, et al., Plaintiffs, v. Kathleen SEBELIUS, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Thomas G. Hungar, Bradley Jason Lingo, Gibson, Dunn & Crutcher, LLP, Steven Henry Aden, Alliance Defense Fund Washington, DC, Samuel B. Casey, Advocates International, Springfield, VA, for Plaintiffs.
Eric R. Womack, Kyle Renee Freeny, U.S. Department of Justice, Washington, DC, Joel L. McElvain, U.S. Department of Justice, San Francisco, CA, for Defendants.
This matter comes before the Court on defendants' Motion 22 to Dismiss. Plaintiffs brought this suit to enjoin defendants from taking further actions to implement and apply the guidelines promulgated by the National Institute of Health ("NIH") that provide for public funding of human embryonic stem cell ("hESC") research. 74 Fed.Reg. 32,170 (July 7, 2009). Defendants' motion asserts, among other things, that plaintiffs lack standing. This Court agrees with defendants and finds that plaintiffs lack standing. Accordingly, the Court will grant defendants' Motion to Dismiss.
Plaintiffs are Drs. James L. Sherley and Theresa Deisher, Nightlight Christian Adoptions ("Nightlight"), Embryos, Shayne and Tina Nelson, William and Patricia Flynn, and Christian Medical Association ("CMA"). (Compl. ¶ 6-12.) Drs. Sherley and Deisher specialize in adult stem cell research and plan to seek NIH funding for adult stem cell research in the future. (Id. ¶ 6-7.) In addition, Dr. Sherley has one proposal currently pending. (Id. ¶ 6.) Nightlight is an adoption agency that helps individuals adopt human embryos that are being stored in fertilization clinics. (Id. ¶ 8.) The Embryos consist of all individual human embryos that were created for reproductive purposes, but are no longer needed for those purposes. (Id. ¶ 9.) The Nelsons and Flynns are clients of Nightlight who seek to adopt human embryos in the future. (Id. ¶¶ 10-11.) CMA is non-profit association of doctors that strives to improve the ethical standards of health care in the United States and abroad. (Id. ¶ 12.) Together, plaintiffs seek to enjoin defendants "from applying the Guidelines promulgated by NIH or otherwise funding research involving the destruction of human embryonic stem cells." (Id. ¶ 4.)
On March 9, 2009, President Obama issued Executive Order No. 13,505, 74 Fed. Reg. 10,667. (Id. ¶ 30.) This Executive Order removed President Bush's limitations on hESC research. Exec. Order No. 13,505, §§ 1, 5. In addition, the Order directed NIH to issue new guidelines to allow hESC research to the extent permitted by law. Id. §§ 2-3.
After a notice and comment period, NIH issued the final guidelines on July 7, 2009. 74 Fed.Reg. 32,170. Under the guidelines, for an applicant to conduct research on hESC derived from embryos donated on or after the effective date of the guidelines, the applicant must either limit his or her research to cell lines posted on an NIH registry, or submit an assurance of compliance with part A of the Guidelines. Id. at 32,174. The requirements of part A of the guidelines ensure that the proposed research involves only hESC that are no longer needed for reproductive purposes and were voluntarily donated to be used for research purposes. Id. For an applicant to conduct research on hESC derived from embryos donated before the effective date of the guidelines, the applicant must either show compliance with part A of the guidelines, or submit materials to an advisory committee, which will make recommendations concerning the eligibility for NIH funding. Id. at 32,175.
Plaintiffs allege that the guidelines, by allowing NIH to fund hESC research, will cause them irreparable harm. Specifically, Drs. Sherley and Deisher contend that the new guidelines will "result in increased competition for limited federal funding and will thereby injure their ability to successfully compete for ... NIH stem cell research funds." (Compl. ¶ 6-7.) Nightlife alleges that the guidelines will cause a decrease in the number of embryos available for adoption. (Id. ¶ 8.) The Embryos, through Nightlight, contend that their lives will face a recurring risk of destruction as a result of the guidelines. (Id. ¶ 9.) The Nelsons and Flynns maintain that the guidelines will "jeopardize the likelihood that embryos will become available" for them to adopt in the future. (Id. ¶¶ 10-11.) Finally, CMA alleges that the guidelines will frustrate its purpose and require it to expend significant resources to combat the ethical problems posed by hESC research. (Id. ¶ 12.)
Defendants move to dismiss plaintiffs' complaint on the grounds that this Court lacks subject-matter jurisdiction, or, in the alternative, that plaintiffs have failed to state a claim upon which relief could be granted. FED.R.CIV.P. 12(b)(1), (6). The Court finds that it lacks subject-matter jurisdiction because plaintiffs do not have standing. Therefore, the Court need not address defendants' additional arguments.
Federal courts are courts of limited jurisdiction. When a defendants files a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff must demonstrate by a preponderance of evidence that the court has subject-matter jurisdiction. Allen v. Nicholson, 573 F.Supp.2d 35, 37 (D.D.C. 2008). The court must accept all the factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Jerome Stevens Pharm. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). Furthermore, the court may consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case. See Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992); Alliance for Democracy v. FEC, 362 F.Supp.2d 138, 142 (D.D.C.2005).
A court lacks subject-matter jurisdiction if the plaintiff fails to establish standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (). To have constitutional standing, the plaintiff must demonstrate: (1) an injury in fact; (2) causation; and (3) redressability. Id. An injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized... and (b) actual or imminent, not conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130 (internal citations and quotations omitted).
"When a plaintiff's asserted injury arises from the Government's regulation of a third party that is not before the court, it becomes `substantially more difficult' to establish standing." Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 938 (D.C.Cir.2004) (quoting Lujan, 504 U.S. at 562, 112 S.Ct. 2130). The court, however, will not dismiss a complaint brought by multiple plaintiffs if one of the plaintiffs has standing. See Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 53 n. 2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ().
CMA alleges that it will suffer injury because "the Guidelines will frustrate CMA's purpose and require CMA to devote significant resources to address and counteract the grave ethical problems posed by illegal public funding of embryo research." (Compl. ¶ 12.) Frustration of purpose is not a sufficient injury to establish standing. See Nat'l Taxpayers Union v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995) (). Indeed, plaintiffs do not argue in their Opposition that this injury is sufficient for standing purposes. Accordingly, the Court finds that CMA lacks standing.
Nightlight contends that it will suffer injury because the guidelines will cause a decrease in the number of embryos available for adoption. (Compl. ¶ 8.) This alleged injury does not satisfy the "injury in fact" requirement of standing because it is speculative and dependent upon third party conduct. See Nat'l Wrestling Coaches Ass'n, 366 F.3d at 938. The guidelines do not mandate a decrease in the number of embryos available for adoption. Rather, the guidelines allow funding for hESC research on embryos that were "donated by individuals who sought reproductive treatment... and who gave voluntary written consent for the human embryos to be used for research purposes." 74 Fed.Reg. at 32174 (emphasis added). Thus, for Nightlight to suffer an injury, potential embryo donors have to choose to donate their embryos for research, and not for adoption.
The choice, however, is not simply whether to donate embryos for research or for adoption. The donors must choose between continuing to store the embryos, discarding them, donating them for research, or giving them to an adoption agency involved in embryonic adoption. This choice is solely within the discretion of individuals in possession of embryos that are no longer needed for reproductive purposes. By allowing funding for hESC research, the guidelines do not interfere with the discretion of potential donors.
Accordingly, the Court finds that Nightlight lacks standing because its alleged injury is "mere `unadorned speculation' as to the existence of a relationship between the guidelines and the third-party conduct." Nat'l Wrestling Coaches Ass'n, 366 F.3d at 938 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 44, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Indeed, if Nightlight suffers any injury at all, it will be because of the choices of third parties not before this court, and not because of the guidelines.
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