SHERLEY v. SEBELIUS

No. 10-5287.

644 F.3d 388 (2011)

Dr. James L. SHERLEY, et al., Appellees v. Kathleen SEBELIUS, in her official capacity as Secretary of the Department of Health and Human Services, et al., Appellants.

United States Court of Appeals, District of Columbia Circuit.

Decided April 29, 2011.


Attorney(s) appearing for the Case

Beth S. Brinkmann , Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellants. With her on the briefs were Ronald C. Machen Jr. , U.S. Attorney, and Mark B. Stern , Stephanie R. Marcus , and Abby C. Wright , Attorneys., Joel McElvain , Senior Counsel, and R. Craig Lawrence , Assistant U.S. Attorney, entered appearances.

Jon E. Pettibone , Neal Goldfarb , and Andrew T. Karron , were on the brief for amici curiae State of Wisconsin, et al. in support of appellants.

Robert P. Charrow and Laura Metcoff Klaus , were on the brief for amicus curiae Regents of the University of California in support of appellants.

Thomas G. Hungar argued the cause for appellees. With him on the brief were Bradley J. Lingo , Thomas M. Johnson, Jr. , Ryan J. Watson , Blaine H. Evanson , Samuel B. Casey , and Steven H. Aden. ,

Dorinda C. Bordlee , was on the brief for amicus curiae Maureen L. Condic , in support of appellee.

Dissenting opinion filed by Circuit Judge HENDERSON.


GINSBURG, Circuit Judge:

Two scientists brought this suit to enjoin the National Institutes of Health from funding research using human embryonic stem cells (ESCs) pursuant to the NIH's 2009 Guidelines. The district court granted their motion for a preliminary injunction, concluding they were likely to succeed in showing the Guidelines violated the Dickey-Wicker Amendment, an appropriations rider that bars federal funding for

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