The news, which is neither very new nor very exciting, is that six weeks ago the Fourth Circuit  affirmed the dismissal of a suit against stem cell funding on the grounds of standing. Doe v. Obama was decided on January 21, 2011, after being argued on December 7. The plaintiffs in this case were unnamed embryos (“Mary Scott Doe,” individually and on behalf of other frozen embryos) and living people affiliated with various embryo adoption organizations.

The court, a panel of Judges Traxler, Wilkinson, and Shedd (Judge Wilkinson writing) agreed with the district court that these plaintiffs did not have standing. As it noted, this suit did not have any researchers claiming standing based on a competitive disadvantage in getting NIH funding and so the Fourth Circuit had no reason to consider the DC Circuit’s Sherley decision.

It is perhaps noteworthy that this panel seems to bend over backwards to avoid offending the sensitivities of the plaintiffs. The second sentence of the opinion reads “We appreciate the sensitivity of the underlying issue and respect the sincerity of arguments on all sides of the question”. And it ends with an invocation of the rule of law:

“We do not doubt for a moment the sincerity of those who oppose, as well as those who support, the revised NIH funding guidelines. But depth of conviction, while admirable, cannot serve to displace the courts’ own deep attachment to the law. “Recognition of standing in such circumstances would transform the federal courts” into more political organs, less differentiated from the workings of the political branches whose actions we are now requested to review. See Allen, 468 U.S. at 756. Because “[c]onstitutional limits on the role of the federal courts preclude such a transformation,” id., we affirm the judgment of the district court.”

Perhaps more meaningfully, the court never addresses the question whether embryos can be plaintiffs. One might think the question whether embryos are persons for purposes of bringing law suits, given the Supreme Court ruling law that fetuses are not persons for persons of the Fourteenth Amendment, might have deserved some attention. But no.

This panel even explicitly leaves the door open for a revised complaint that could meet the standing requirement, pointing out

“Our conclusion that plaintiffs cannot establish standing in this case is a narrow one, for we do not suggest that no party would ever have standing to assert similar claims. The bar of standing must not be set too high, lest many regulatory actions escape review contrary to the intent of Congress. See Administrative Procedure Act, 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”).

A complaint that provided more concrete information about the identity of the named plaintiff embryo or the plaintiff parents’ plans for adoption would at least address more directly what the Supreme Court has identified as serious constitutional concerns.”

It is at this point that the Fourth Circuit panel notes how the DC Circuit found standing in the Sherley case. The panel’s opinion goes on to say “We express no opinion on the standing issue in Sherley or any other case not presently before this court, but simply note that such cases are different from the one that is before us.”

Sounds like advice to the plaintiffs to me. But it comes in what is, at least for the time being, a victory for the government.

Now to the speculation.  There is still no word from the DC Circuit on the government’s appeal of the Sherley case, where Judge Lamberth enjoined funding for embryonic stem cell research on the ground that it violated the Dickey-Wicker amendment. That case was argued on December 6, 2010, three months ago, but there has been (as far as I can tell) no subsequent action by the court. Its earlier stay of the lower court’s injunction remains in effect.

The Fourth Circuit decided this appeal 45 days after it heard oral argument in the case. The DC Circuit has had exactly twice as long – 90 days – since it heard oral argument in the Sherley appeal.  It is silly to read very much into this. Judges have different styles in how long it takes them to write opinions, as well as different caseloads. Sometimes, they even get the flu like (other) human beings. This DC Circuit panel included Judges Ginsburg, Henderson, and Griffith. I don’t know anything about their personal circumstances these last three months, or about each of their usual speed in writing opinions. It may also be worth noting that the Fourth Circuit is the fastest circuit in producing opinions (and proud of it).

Frankly, it doesn’t seem that hard (to me, anyway) to write an opinion upholding the government’s position; 90 days seems like more than enough. It is tempting to speculate that the passage of this amount of time, in an issue of some public importance, is an indication that the panel is split and someone is preparing a dissenting (or concurring) opinion. That can certainly slow things down – the other judge needs to see the majority opinion before writing his or her own and then the majority may want to respond to things in the dissent. This can go through several iterations.

Now, 90 days from oral argument isn’t actually a very long time; there could still be a unanimous opinion coming out, perhaps as soon as tomorrow. I just looked at opinions in argued cases (not summary affirmances) released by the DC Circuit since January 1, 2011. I looked the first 10 I pulled up and found that the time from argument to decision ranged from 138 days to 29 days. The median was 94.5 and the mean was 88.2. None of those cases had a dissent. The only DC Circuit opinion I found (without searching terribly hard) that was a) issued since January 1, 2011, b) had been argued, and c) had a dissent took 71 days from argument to opinion. So the Sherley opinion isn’t running late, quite, but, still, I would have expected a unanimous opinion to have issued by now, all other things being equal.

And even if my speculation is right, in the long run, it doesn’t matter whether an opinion is 3-0 or 2-1 . . . except to the extent that a dissent makes further review, by the Circuit en banc or by the Supreme Court, somewhat more likely. And as long as the injunction against funding is stayed, the research remains funded. If the court decides in favor of the government (as I think it should), the time delay won’t ultimately matter. Much. On the other hand, the uncertainty created by the Sherley case creates its own cloud over the research area. The sooner that is dispelled (in favor of funding, which I believe is clearly the legally correct answer for reasons I’ve expressed before), the better.