U.S. Attorney General Seeks 9th Circuit En Banc Review In Bone Marrow Compensation Case

John Kramer
John Kramer · January 18, 2012

Arlington, Va.—Yesterday, January 17, U.S. Attorney General Eric Holder petitioned the full 9th U.S. Circuit Court of Appeals to review the unanimous December 1, 2011 decision of a three-judge panel holding that the National Organ Transplant Act (NOTA), which bans organ sales, does not apply to compensating certain bone marrow donors. The decision, brought by the Institute for Justice on behalf of California nonprofit MoreMarrowDonors.org, and a coalition of cancer patients and their families, activists, and a world-renowned bone-marrow transplant doctor, opened the door to allow a pilot program seeking to determine whether compensation could help alleviate the drastic shortage of marrow donors. The Department of Justice is now trying to block that possibility.

The Court of Appeals ruled that NOTA does not cover compensating marrow donors when the marrow cells are obtained from the blood using modern technology for the donation of blood components such as plasma and platelets. Because Congress did not outlaw compensation for blood components, the Court reasoned that it could not have meant to outlaw compensation for marrow cells drawn from the blood.

“The Court of Appeals was correct because NOTA was intended to cover solid organs such as kidneys,” said IJ Senior Attorney Jeff Rowes, lead counsel in the case. “Marrow cells are just immature blood cells and, like other blood cells, they regenerate when donated.”

“Even if NOTA were written to ban compensating marrow donors, it would be unconstitutional because it is irrational to outlaw compensation for marrow cells obtained from the blood stream while making it legal to compensate donors of any other kind of blood cell,” added IJ Attorney Robert McNamara. The Court did not need to reach this constitutional argument because it determined that NOTA simply did not apply to compensation for marrow cells drawn from blood.

The full 9th Circuit is not obligated to rehear the case and such review is rare. Full review is reserved for cases where an opinion of a three-judge panel directly conflicts with prior 9th Circuit or U.S. Supreme Court decisions or where the 9th Circuit determines circumstances require extraordinary intervention.

“It is unlikely that rehearing will be granted because this was the first time any appellate court in the country applied NOTA to compensated marrow donation, and so there is no prior 9th Circuit opinion that the December 1 decision conflicts with. And the unanimous panel opinion did away with an irrational rule that was costing lives for no good reason: The public interest demands that the court let this decision stand,” Rowes added.

The 9th Circuit will likely reject the petition or seek a response from IJ’s clients by mid-February. Following the response, a decision to accept or deny review should come in a matter of weeks. If review is granted, then the case will be briefed and argued again before the full court. If review is denied, the Attorney General will still have the option of seeking review in the U.S. Supreme Court within 90 days.

Shaka Mitchell, president of MoreMarrowDonors.org, said, “Our goal is to try something new to see if it saves lives. We will continue our fight as long as senseless legal restrictions prevent people from taking commonsense steps to help those desperately in need of lifesaving bone marrow.”