Doe v. Obama

• Decision Date: 21 January 2011
• Docket Number: Nos. 10–1104,10–1106.,s. 10–1104
• Citation: 631 F.3d 157
• Parties: Mary Scott 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; National Organization for Embryonic Law (NOEL); Nightlight Christian Adoptions; Peter Murray; Suzanne Murray; Courtney Atnip; Tim Atnip; Steven B. Johnson; Kate Elizabeth Johnson; Cora Best; Gregory Best, Plaintiffs–Appellants,v.Barack Hussein OBAMA, in his official capacity as President of the United States; Charles E. Johnson, in his official capacity as acting secretary of the Department of Health & Human Services; Raynard S. Kington, in his official capacity as acting director of the National Institutes of Health, Defendants–Appellees.Mary Scott Doe, a human embryo “born” in the United States (and subsequently frozen in which state of cryopreservation her life is suspended), individually and on behalf of all other frozen human embryos similarly situated; National Organization for Embryonic Law (NOEL); Peter Murray; Suzanne Murray; Courtney Atnip; Tim Atnip; Steven B. Johnson; Kate Elizabeth Johnson; Cora Best; Gregory Best, Plaintiffs–Appellants,v.Kathleen Sebelius, In her official capacity as Secretary of the Department of Health & Human Services; Francis S. Collins, In his official capacity as director of the National Institutes of Health, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

631 F.3d 157

Mary Scott 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; National Organization for Embryonic Law (NOEL); Nightlight Christian Adoptions; Peter Murray; Suzanne Murray; Courtney Atnip; Tim Atnip; Steven B. Johnson; Kate Elizabeth Johnson; Cora Best; Gregory Best, Plaintiffs–Appellants,

v.Barack Hussein OBAMA, in his official capacity as President of the United States; Charles E. Johnson, in his official capacity as acting secretary of the Department of Health & Human Services; Raynard S. Kington, in his official capacity as acting director of the National Institutes of Health, Defendants–Appellees.Mary Scott Doe, a human embryo “born” in the United States (and subsequently frozen in which state of cryopreservation her life is suspended), individually and on behalf of all other frozen human embryos similarly situated; National Organization for Embryonic Law (NOEL); Peter Murray; Suzanne Murray; Courtney Atnip; Tim Atnip; Steven B. Johnson; Kate Elizabeth Johnson; Cora Best; Gregory Best, Plaintiffs–Appellants,

v.Kathleen Sebelius, In her official capacity as Secretary of the Department of Health & Human Services; Francis S. Collins, In his official capacity as director of the National Institutes of Health, Defendants–Appellees.

Nos. 10–1104

10–1106.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 7, 2010.Decided: Jan. 21, 2011.

ARGUED: Rudolph Martin Palmer, Jr., Hagerstown, Maryland, for Appellants.

Benjamin Seth Kingsley, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Tony West, Assistant Attorney General, Mark B. Stern, United States Department of Justice, Washington, D.C., Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellees.Before TRAXLER, Chief Judge, and WILKINSON and SHEDD, Circuit Judges.Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge TRAXLER and Judge SHEDD joined.

OPINION

WILKINSON, Circuit Judge:

Plaintiffs in this case challenge the federal funding of research involving embryonic stem cells. The district court dismissed the suit for want of standing. We appreciate the sensitivity of the underlying issue and respect the sincerity of arguments on all sides of the question. However, as a matter of law, the principles of standing enunciated by the Supreme Court mandate an affirmance of the judgment.

I.

Human embryonic stem cells (hESCs) are valued by scientific researchers for their ability to transform into any type of cell in the human body. They are derived from embryos, largely embryos created via in vitro fertilization (IVF) for reproductive purposes and donated for research when no longer needed for that reason. The process of creating hESCs generally results in the destruction of the embryo. Embryos not donated for research can also be made available for adoption.

In addition to technical discussions, the issue of stem cell research has elicited debate on the role of science in alleviating human suffering and the relationship of science to the sanctity of life. Federal funding guidelines have not surprisingly proven controversial. Although hESCs have been available for research since 1998, the National Institutes of Health (NIH) did not fund research involving hESCs until 2001. That funding, however, was restricted to research involving hESCs derived from stem cell lines already in existence. See Address to the Nation on Stem Cell Research from Crawford, Tex., 37 Weekly Comp. Pres. Doc. 1149 (Aug. 9, 2001); see also Exec. Order No. 13435, 72 Fed. Reg. 34591 (June 20, 2007). On March 9, 2009, President Obama issued Executive Order 13505, 74 Fed. Reg. 10667, removing that restriction and expanding federal funding of hESC research. Executive Order 13505 also directed the NIH to issue new guidelines on that research. The NIH responded on July 7, 2009 with final Guidelines for Human Stem Cell Research (“NIH Guidelines”). 74 Fed. Reg. 32170.

Two sets of plaintiffs in these consolidated cases challenge Executive Order 13505 and the NIH Guidelines. Plaintiff Mary Scott Doe represents a putative class of all frozen embryos held throughout the United States for either research or adoption purposes. The other plaintiffs are several parents who have children that were adopted as frozen embryos and who are considering adopting embryos again. Together, plaintiffs argue that the new hESC policies violate the Thirteenth and Fourteenth Amendments, the Administrative Procedure Act, and the Dickey–Wicker Amendment, Pub. L. No. 111–8, div. F, Title V, § 509(a)(2), 123 Stat. 524, 803, a restriction on NIH funding which bars the use of federal funds for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death.” The district court dismissed both lawsuits for lack of standing. Plaintiffs now appeal.

II.

We are not at liberty to resolve every grievance over government policy, no matter how significant, for “Article III of the Constitution confines the federal courts to adjudicating actual ‘cases' and ‘controversies.’ ” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The Supreme Court has made clear that “standing is an essential and unchanging part” of that case-or-controversy requirement, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), one that “state[s] fundamental limits on federal judicial power in our system of government,” Allen, 468 U.S. at 750, 104 S.Ct. 3315. To satisfy that constitutional requirement, a plaintiff must demonstrate:

(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). We review de novo the district court's decision to dismiss for lack of standing. Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir.2009).

III.

Plaintiffs first assert that the class of all human embryos currently held at IVF clinics throughout the country, including named plaintiff Mary Scott Doe, have standing to assert their constitutional and statutory rights.

A.

Plaintiffs contend that the class of frozen embryos is threatened with injury sufficient for standing because Executive Order 13505 and the NIH Guidelines increase the embryos' risk of being reduced to embryonic stem cells. By itself, this contention is insufficient. The Supreme Court has made clear that “named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’ ” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n. 20, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Without a sufficient allegation of harm to the named plaintiff in particular, plaintiffs cannot meet their burden of establishing standing.

We cannot identify a particularized harm because the complaint does not identify any of the named plaintiff's particularized characteristics. Instead, it leaves us only with questions such as whether the embryo will ever be used for research and whether that research will be funded by the NIH. We have no idea under what terms the named plaintiff embryo was donated or stored or what its status even is. In the absence of answers, the chosen appellation of Mary Scott Doe could equally designate any member of an amorphous frozen embryo class. Indeed, the complaint even states that Mary Scott Doe may be one of the embryos donated for adoption.^* JA 15. Because the class of frozen embryos includes several subsets, we have no way of knowing whether “the claims or defenses of the representative part[y] are typical of the claims or defenses of the class,” Fed.R.Civ.P. 23(a)(3), which is to say whether the named plaintiff is threatened with the harm plaintiffs impute to the class as a whole.

While plaintiffs attempt to bypass the requirement of particularized harm by asserting that all frozen embryos are threatened with harm, this is not a sound contention. The NIH Guidelines permit funding for research involving only stem cells from embryos “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. Plaintiffs offer no reason to think, for example, that embryos already donated for adoption are at any risk for the injury allegedly caused by the Guidelines. Moreover, the complaint provides no basis to conclude that the named plaintiff in particular will be part of the subset that suffers any injury at all, much less an injury due to the challenged government policy. Because the injury-in-fact test requires “that the party seeking review be himself among the injured,” Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), we cannot conclude that these plaintiffs have alleged a “concrete and particularized” harm, Friends of the Earth, 528 U.S. at 180, 120 S.Ct. 693.

B.

There is an additional difficulty with the embryo plaintiffs' claim of standing. “[T]he ‘case or controversy’ limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Simon, 426 U.S. at...