Doe v. Shalala, Sec , 122 F. App'x 600 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2254
MARY DOE, a human embryo “born” in the United
States (and subsequently frozen in which state
of cryopreservation her life is presently
suspended), individually and on behalf of all
other frozen human embryos similarly situated,
Plaintiff - Appellant,
versus
DONNA E. SHALALA, SECRETARY, UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN SERVICES, in
her official capacity as Secretary of Health
and Human Services; DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY; HAROLD
VARMUS, Doctor, in his official capacity as
Director of the National Institutes of Health,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
99-2428-PJM)
Argued: October 27, 2004 Decided: December 7, 2004
Before LUTTIG, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Rudolph Martin Palmer, Jr., Hagerstown, Maryland, for
Appellant. Thomas Mark Bondy, Civil Rights Division, Appellate
Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees. ON BRIEF: Peter D. Keisler, Assistant Attorney General,
Thomas M. DiBiagio, United States Attorney, Mark B. Stern,
Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Mary Doe is the name given to an embryo produced by means of
in vitro fertilization and now cryogenically preserved in liquid
nitrogen. In August 1999, the National Association for the
Advancement of Preborn Children (“NAAPC”) filed suit on Mary Doe’s
behalf, seeking a declaration that Mary Doe is entitled to due
process of law and the equal protection of laws under the
Fourteenth Amendment and a permanent injunction against “any and
all plans to undertake human embryo (stem cell) experimentation.”
This lawsuit came in response to what NAAPC perceived as President
Clinton’s policy favoring embryonic stem-cell research. In August
2001, President Bush announced a new policy limiting federal
funding for embryonic stem-cell research to projects involving
already-existing stem-cell lines. Because Mary Doe would not be
threatened by this policy, the Government moved the district court
to dismiss this case as moot. The district court granted the
motion, and we affirm.
I.
In November 1998, then-President Clinton directed the National
Bioethics Advisory Commission (“NBAC”) to review federal policy
concerning human stem-cell research. The final report of the NBAC,
issued in September 1999, recommended that federal statutes and
regulations be amended to permit funding for the use and derivation
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of embryonic stem cells from cadaveric fetal tissue and embryos
remaining after infertility treatments. Later that year, the
National Institutes of Health (“NIH”) published draft guidelines
regarding stem-cell research funding. 64 Fed. Reg. 67,576 (Dec. 2,
1999). Under these guidelines, any future research funded by NIH
would involve stem cells derived from fetal tissue or from certain
early embryos that are the products of in vitro fertilization. Id.
at 67,577. NIH issued its final guidelines in August 2000. 65
Fed. Reg. 51,976 (Aug. 25, 2000).
Mary Doe and the NAAPC (collectively, “Plaintiffs”) commenced
this lawsuit to challenge President Clinton’s policy. Plaintiffs’
complaint alleged that the Government could not implement that
policy without violating Mary Doe’s constitutional rights,
especially her rights under the Fourteenth Amendment. Plaintiffs
requested that the district court “declare the equal humanity and
personhood of Mary Doe and grant her equal protection and due
process of the laws,” find President Clinton’s policy
unconstitutional, and enjoin the Government to “cease and desist
any and all plans to undertake human embryo (stem cell)
experimentation.”
In August 2001 -- while this lawsuit was pending -- President
Bush announced a new policy concerning federal funding for stem-
cell research. Under President Bush’s policy, federal funding
would remain available for research involving existing stem-cell
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lines, with the following conditions: (1) the stem cells must have
been derived from an embryo that was created for reproductive
purposes, (2) the embryo was no longer needed for those purposes,
(3) informed consent must have been obtained for donation of the
embryo, and (4) no financial inducements were provided for donation
of the embryo. Federal funding would not be available for stem-
cell research involving embryos that had not yet been destroyed.
In response to this new policy, NIH announced in November 2001 that
it was withdrawing its earlier-issued guidelines. See 66 Fed. Reg.
57,107 (Nov. 14, 2001).
Arguing that the current policy poses no threat to Mary Doe,
the Government moved the district court to dismiss Plaintiffs’
challenge to the former policy as moot. The district court
dismissed the case, and this appeal followed.
II.
The district court’s ruling on mootness presents a question of
law that we review de novo. See Troiano v. Supervisor of
Elections, 382 F.3d 1276, 1282 (11th Cir. 2004); cf. Piney Run
Pres. Ass’n v. County Comm’rs, 268 F.3d 255, 262 (4th Cir. 2001)
(applying the same standard of review to a ruling on standing).
“Under Article III of the Constitution, federal courts may
adjudicate only actual, ongoing cases or controversies. To invoke
the jurisdiction of a federal court, a litigant must have suffered,
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or be threatened with, an actual injury traceable to the defendant
and likely to be redressed by a favorable judicial decision.”
Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). This
requirement ensures that federal courts will resolve only “real and
substantial controversies admitting of specific relief through a
decree of a conclusive character” and will not issue opinions
“advising what the law would be upon a hypothetical state of
facts.” Id. (internal quotations omitted) Since the Government
has changed its policy concerning embryonic stem-cell research,
Mary Doe is not now threatened with any injury traceable to the
defendants. Thus, any ruling on the merits of Mary Doe’s claims
would be nothing other than an “advisory opinion[] on abstract
propositions of law.” Hall v. Beals, 396 U.S. 45, 48 (1969) (per
curiam).
A.
Plaintiffs argue that the mere voluntary cessation of illegal
conduct does not moot their ongoing challenge to that conduct.
Although “voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case, i.e.,
does not make the case moot,” United States v. W.T. Grant Co., 345
U.S. 629, 632 (1953), a case may nevertheless be moot “if
subsequent events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur,”
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Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc.,
528 U.S. 167, 189 (2000). The party asserting mootness bears the
burden to show that the challenged conduct cannot reasonably be
expected to recur. Id.A legislature may voluntarily cease allegedly illegal conduct
by amending or repealing the challenged law or by allowing it to
expire. In general, the amendment, repeal, or expiration of a
statute moots any challenge to that statute. See Lewis, 494 U.S.
at 474; Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th
Cir. 2000). The Supreme Court has held such statutory challenges
not moot only where it appeared likely that the legislature would
enact a similar policy if the lawsuit were dismissed. See
Northeastern Fla. Chapter of the Associated Gen. Contractors of Am.
v. City of Jacksonville, Fla., 508 U.S. 656, 662 (1993); City of
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.11
(1982).
We have noted that the City of Mesquite line of cases is
“generally limited to the circumstance, and like circumstances, in
which a defendant openly announces its intention to reenact
precisely the same provision held unconstitutional below.” Valero
Terrestrial, 211 F.3d at 116. Similarly, we stated in American
Legion Post 7 v. City of Durham, 239 F.3d 601 (4th Cir. 2001), that
“[t]he practical likelihood of reenactment of the challenged law
appears to be the key to the Supreme Court’s mootness
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jurisprudence” in this context. Id. at 606. We concluded in
American Legion that a city’s amending a zoning ordinance alleged
to violate the First Amendment mooted the plaintiff’s challenge to
the ordinance, because there was “little likelihood” that the city
would revive the original ordinance. Id.Plaintiffs contend that these authorities are inapposite
because they involved statutes or ordinances rather than
administrative policies or regulations. According to Plaintiffs,
the ease with which administrative actions can be changed makes it
likely that the conduct they challenge will recur. We have noted,
however, that “[w]ithdrawal or alteration of administrative
policies can moot an attack on those policies,” Bahnmiller v.
Derwisnki, 923 F.2d 1085, 1089 (4th Cir. 1991), suggesting that
ordinary mootness principles apply to administrative as well as
legislative action. In Commonwealth of Virginia v. Califano, 631
F.2d 324 (4th Cir. 1980), for example, we applied ordinary mootness
principles to a state’s challenge to a decision by a federal agency
concerning the state’s welfare program. Although the federal
agency agreed to give the state the relief it sought -- a formal
hearing on the state’s amendment of its welfare program -- the
agency refused to concede that the state was entitled to that
relief as a matter of right and insisted that it would continue to
act as it had in the past. Id. at 326. Under these circumstances,
we concluded that the agency had failed to carry its burden of
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demonstrating that there was “no reasonable expectation that the
wrong [would] be repeated,” and we held that the state’s challenge
was not moot. Id. at 326-27. It is of no consequence that the
challenged conduct in this case is administrative rather than
legislative in character.
In this case, the Government has carried its burden of
demonstrating that it will not revive President Clinton’s policy
concerning embryonic stem-cell research. NIH officially withdrew
its guidelines implementing the former policy. The current policy
allows federal funds to be used only for research involving
existing embryonic stem-cell lines, and NIH is following that
policy. No federal funds are being used to further research
involving embryonic stem-cell lines that have not yet been
generated from extant embryos such as Mary Doe. In short, there is
no evidence suggesting that the Government is likely to revive the
policy that is the subject of this lawsuit. See American Legion,
239 F.3d at 606.
B.
Plaintiffs further contend that this case is not moot because
the challenged conduct is capable of repetition, yet evading
review. “The capable-of-repetition doctrine applies only in
exceptional situations, where the following two circumstances are
simultaneously present: (1) the challenged action is in its
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duration too short to be fully litigated prior to cessation or
expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.”
Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal citations and
quotations omitted). For the reasons stated above, there is no
reasonable expectation that Mary Doe will be subject to the former
policy on stem-cell research again. The replacement of that policy
with a new policy “diminishes the potential for repetition of the
dispute that brought about this litigation.” Pressley Ridge Schs.
v. Shimer, 134 F.3d 1218, 1221 (4th Cir. 1998) (noting that an
agency’s amending the challenged regulation made it less likely
that the alleged injury would be repeated).
C.
Finally, Plaintiffs argue that Mary Doe and other similarly
situated embryos retain an interest in the outcome of this
litigation. Plaintiffs argue that by limiting federal funding to
research involving only existing embryonic stem-cell lines, the
Government has threatened to deplete the supply of embryonic stem
cells. As a result, private researchers likely will make greater
use of extant embryos such as Mary Doe. This argument is
meritless. First, Plaintiffs can only speculate about the reaction
of private-sector researchers to the current policy on stem-cell
research. Second, the challenge mounted in this lawsuit is to the
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Government’s policy for federal funding, not the private sector’s
response to that policy. The fact remains that Mary Doe is not now
threatened with any injury traceable to the defendants in the
lawsuit. See Lewis, 494 U.S. at 477.
III.
Because the current policy limiting federal funding of
embryonic stem-cell research to projects involving existing stem-
cell lines poses no threat to Mary Doe, her challenge to the former
policy is moot. Accordingly, the judgment of the district court is
AFFIRMED.
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