                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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


                                            3
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,


                                         5
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,”


                                         6
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


                                           7
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


                                     8
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


                                         9
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


                                       10
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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