Blawgletter has a thing about the passive voice. We don't like it, no sir. Not at all. You might say it is hated by us.

[See, e.g., "They Will Be Killed by Us", "The Voice That Dares Not Call Its Name", "Passive Voice Kills Another Lawsuit", "Contingent Fee Hinges on What 'Recovered" Means", "Fifth Circuit Weighs Passive Voice, Holds Insurers Must Pay for Stanford Defense","The Hated Past Participle".]

Now and then, something will gratify our smugness regarding p.v. In April, the D.C. Circuit did just that.

The case involved an attempt by researchers who study human adult stem cells to stop federal research involving human embryonic stem cells. The district court, in the person of the Honorable Royce Lamberth, issued a preliminary injunction against federal funding of the research on the ground that "an appropriations rider" — the Dickey-Wicker Amendment — "bars federal funding for research in which a human embryo is destroyed." Sherley v. Sebelius, No. 10-5287, slip op. at 2 (D.C. Cir. Apr. 29, 2011).

The key part of the Dickey-Wicker Amendment excludes from eligibility for federal money any "research in which a human embryo or embryos are [sic] destroyed". Pub. L. No. 111-117, § 509(a)(2), 123 Stat. 3034, 3280-81. Note the "are destroyed" bit. Passive voice, baby!

The plaintiffs claimed that D-WA reaches any work on stem cells that came from embryos. That the federal researchers played no role in destroying the embryos and simply received the stem cells after someone else removed them from embryos did not, in their view, matter. The relevant "research" extended back in time to destruction of the embryos by others, they urged.

A 2-1 majority of the court of appeals disagreed, holding "that the text [of D-WA] is ambiguous" and that therefore the National Institute of Health's reasonable reading of the law bound the court. Sherley, slip op. at 12. The ambiguity, the panel ruled, made the plaintiffs unlikely to prevail on the merits. 

The dissenting judge invoked "Rube Goldberg" and alleged "linguistic jujitsu" in opining that the statute clearly bars federal funding for research that doesn't itself involve extra-governmental destruction of embryos. Id. at 22.

Who got it right?

You'll excuse us for taking the side of those who see ambiguity. As we like to point out, the use of passive voice allows the writer to avoid linking a particular actor to action, creating uncertainty about the actor's identity. In the case of "research" in which "human embryos are destroyed", you can't tell who "destroyed" the embryos — the federal researchers or other people.

What will happen now? Barring an en banc rehearing or the granting of review by the Supreme Court, the case will return to Judge Lamberth for rulings on the merits. The majority opinion doesn't appear to allow the district court much room, if any, to re-interpret D-WA.

We suppose the plaintiffs could try to show that NIH induced others to derive embryonic stem cells for the purpose of supplying them to NIH for federal research and that NIH therefore knowingly evaded D-WA. But short of that — and we have no reason to think such evidence exists — Judge Lamberth will likely have little choice but to rule in favor of the government.