SHERLEY et al v. SEBELIUS et al

Filing 39

Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 38 Notice of Appeal,. (rdj)

APPEAL, CLOSED, TYPE-D

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:09-cv-01575-RCL Internal Use Only
SHERLEY et al v. SEBELIUS et al Assigned to: Chief Judge Royce C. Lamberth Case: 1:01-cv-00502-RCL Cause: 05:0706 Judicial Review of Agency Actions Plaintiff JAMES L. SHERLEY Dr. represented by Ryan G. Koopmans GIBSON, DUNN &CRUTCHER, LLP 1050 Connecticut Avenue, NW Suite 300 Washington , DC 20036-5306 [phone] Email: [e-mail] LEAD ATTORNEY Thomas G. Hungar GIBSON, DUNN &CRUTCHER, LLP 1050 Connecticut Avenue, NW Suite 300 Washington , DC 20036-5306 [phone] Fax: [phone] Email: [e-mail] LEAD ATTORNEY ATTORNEY TO BE NOTICED Bradley Jason Lingo GIBSON, DUNN &CRUTCHER, LLP 1050 Connecticut Avenue, NW Suite 300 Washington , DC 20036 [phone] Email: [e-mail] ATTORNEY TO BE NOTICED Samuel B. Casey ADVOCATES INTERNATIONAL 8001 Braddock Road Suite 300 Springfield , VA 22151 [phone] Email: [e-mail] PRO HAC VICE Date Filed: 08/19/2009 Date Terminated: 10/27/2009 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

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ATTORNEY TO BE NOTICED Steven Henry Aden ALLIANCE DEFENSE FUND 801 G Street, NW Suite 509 Washington , DC 20001 [phone] Fax: [phone] Email: [e-mail] Plaintiff THERESA DEISHER Dr. represented by Ryan G. Koopmans (See above for address) LEAD ATTORNEY Thomas G. Hungar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bradley Jason Lingo (See above for address) ATTORNEY TO BE NOTICED Samuel B. Casey (See above for address) ATTORNEY TO BE NOTICED Steven Henry Aden (See above for address) Plaintiff NIGHT-LIGHT CHRISTIAN ADOPTIONS individually and as next friend for Plaintiff Embryos represented by Ryan G. Koopmans (See above for address) LEAD ATTORNEY Thomas G. Hungar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bradley Jason Lingo (See above for address) ATTORNEY TO BE NOTICED Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Steven Henry Aden (See above for address) Plaintiff SHAYNE NELSON represented by Ryan G. Koopmans (See above for address) LEAD ATTORNEY Thomas G. Hungar GIBSON, DUNN &CRUTCHER, LLP 1050 Connecticut Avenue, NW Suite 300 Washington , DC 20036-5306 [phone] Fax: [phone] Email: [e-mail] LEAD ATTORNEY ATTORNEY TO BE NOTICED Bradley Jason Lingo (See above for address) ATTORNEY TO BE NOTICED Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Steven Henry Aden (See above for address) Plaintiff TINA NELSON represented by Ryan G. Koopmans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Thomas G. Hungar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bradley Jason Lingo (See above for address) ATTORNEY TO BE NOTICED Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Steven Henry Aden (See above for address) ATTORNEY TO BE NOTICED Plaintiff WILLIAM FLYNN represented by Ryan G. Koopmans (See above for address) LEAD ATTORNEY Thomas G. Hungar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bradley Jason Lingo (See above for address) ATTORNEY TO BE NOTICED Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Steven Henry Aden (See above for address) Plaintiff PATRICIA FLYNN represented by Ryan G. Koopmans (See above for address) LEAD ATTORNEY Thomas G. Hungar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bradley Jason Lingo (See above for address) ATTORNEY TO BE NOTICED Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Steven Henry Aden (See above for address) Plaintiff CHRISTIAN MEDICAL ASSOCIATION represented by Ryan G. Koopmans (See above for address)

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LEAD ATTORNEY Thomas G. Hungar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bradley Jason Lingo (See above for address) ATTORNEY TO BE NOTICED Samuel B. Casey (See above for address) Steven Henry Aden (See above for address) Plaintiff EMBRYOS represented by Ryan G. Koopmans (See above for address) LEAD ATTORNEY Thomas G. Hungar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bradley Jason Lingo (See above for address) ATTORNEY TO BE NOTICED Samuel B. Casey (See above for address) Steven Henry Aden (See above for address)

V. Defendant KATHLEEN SEBELIUS in her official capacity as Secretary of the Department of Health and Human Services represented by Eric R. Womack U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Room 7218 Washington , DC 20530 [phone] Fax: [phone] Email: [e-mail] LEAD ATTORNEY Joel L. McElvain

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U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 450 Golden Gate Ave. Room 7-5395 San Francisco , CA 94102 [phone] Fax: [phone] Email: [e-mail] LEAD ATTORNEY Kyle Renee Freeny U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Washington , DC 20001 [phone] Email: [e-mail] Defendant DEPARTMENT OF HEALTH AND HUMAN SERVICES represented by Eric R. Womack (See above for address) LEAD ATTORNEY Joel L. McElvain (See above for address) LEAD ATTORNEY Kyle Renee Freeny (See above for address) Defendant FRANCIS S. COLLINS Dr., in his official capacity as Director of the National Institutes of Health represented by Eric R. Womack (See above for address) LEAD ATTORNEY Joel L. McElvain (See above for address) LEAD ATTORNEY Kyle Renee Freeny (See above for address) Defendant NATIONAL INSTITUTE OF HEALTH represented by Eric R. Womack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Joel L. McElvain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Kyle Renee Freeny (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/19/2009

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Page Docket Text COMPLAINT against KATHLEEN SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH ( Filing fee $ 350, receipt number 4616023260) filed by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 08/20/2009) SUMMONS (6) Issued as to KATHLEEN SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 08/20/2009)

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NOTICE OF RELATED CASE by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON. Case related to Case No. 01-502. (rdj) (Entered: 08/20/2009) MOTION for Preliminary Injunction by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON (Attachments: # 1 Memorandum in Support, # 2 Declaration Bradley J. Lingo, # 3 Bradley J. Lingo Exhibit A, # 4 Bradley J. Lingo Exhibit B, # 5 Bradley J. Lingo Exhibit C, # 6 Bradley J. Lingo Exhibit D, # 7 Declaration Dr. James Sherley, # 8 Declaration Dr. Theresa Deisher, # 9 Declaration Ronald L. Stoddart, # 10 Declaration Mrs. Tina Nelson, # 11 Declaration William T. Flynn)(rdj) (Entered: 08/20/2009) MOTION to Appoint Guardian ad Litem by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON (Attachments: # 1 Memorandum in Support, # 2 Declaration Ronald L. Stoddart, # 3 Text of Proposed Order)(rdj) (Entered: 08/20/2009) NOTICE of Appearance by Bradley Jason Lingo on behalf of all plaintiffs (Lingo, Bradley) (Entered: 08/26/2009) MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Samuel B. Casey, :Firm- Advocates International, :Address- 8001 Braddock Rd., Suite 300, Springfield, VA 22151. Phone No. - 703-894-1076. by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, EMBRYOS, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Hungar, Thomas) (Entered: 08/26/2009)

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NOTICE of Appearance by Steven Henry Aden on behalf of WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, EMBRYOS, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON (Aden, Steven) (Entered: 08/27/2009) Joint MOTION for Extension of Time to File /Set Briefing Schedule by KATHLEEN SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH (Attachments: # 1 Text of Proposed Order)(Womack, Eric) (Entered: 08/27/2009) ORDER granting Motion 6 for Leave to Appear Pro Hac Vice. Signed by Chief Judge Royce C. Lamberth on 8/27/2009. (lcrcl2, ) (Entered: 08/27/2009) ORDER granting the Joint Motion 8 for Extension of Time to File; Set/Reset Deadlines: Opposition briefs are due on or before 9/14/2009. Any reply briefs are due on or before 9/28/2009. Signed by Chief Judge Royce C. Lamberth on 8/27/2009. (lcrcl2, ) (Entered: 08/27/2009) NOTICE of Appearance by Joel L. McElvain on behalf of all defendants (McElvain, Joel) (Entered: 08/27/2009) NOTICE of Appearance by Eric R. Womack on behalf of all defendants (Womack, Eric) (Entered: 08/28/2009) Set/Reset Deadlines: Opposition briefs due by 9/14/2009. Reply briefs due by 9/28/2009. (rje) (Entered: 08/28/2009)

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RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to KATHLEEN SEBELIUS served on 8/24/2009, answer due 10/23/2009. (Aden, Steven) (Entered: 09/01/2009) RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to FRANCIS S. COLLINS served on 8/21/2009, answer due 10/20/2009. (Aden, Steven) (Entered: 09/01/2009) RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 8/24/2009, answer due 10/23/2009. (Aden, Steven) (Entered: 09/01/2009) RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 8/23/09. (Aden, Steven) (Entered: 09/01/2009) RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. (Aden, Steven) (Entered: 09/01/2009) NOTICE of Appearance by Samuel B. Casey on behalf of all plaintiffs (Casey, Samuel) (Entered: 09/02/2009) NOTICE of Defendants' Objection to Plaintiffs' Related Case Designation by KATHLEEN SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH re 2 Notice of Related Case (McElvain, Joel) (Entered: 09/11/2009) Unopposed MOTION for Leave to File Excess Pages by KATHLEEN

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SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH (Attachments: # 1 Text of Proposed Order)(Womack, Eric) (Entered: 09/11/2009) 09/14/2009 21 ORDER granting defendants' Unopposed Motion 20 for Leave to File Excess Pages. Signed by Chief Judge Royce C. Lamberth on 9/14/2009. (lcrcl2, ) (Entered: 09/14/2009) MOTION to Dismiss by KATHLEEN SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Text of Proposed Order)(Womack, Eric) (Entered: 09/14/2009) Memorandum in opposition to re 3 MOTION for Preliminary Injunction filed by KATHLEEN SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH. (Womack, Eric) (Entered: 09/14/2009) NOTICE of Appearance by Kyle Renee Freeny on behalf of all defendants (Freeny, Kyle) (Entered: 09/14/2009) Memorandum in opposition to re 4 MOTION to Appoint Guardian ad Litem filed by KATHLEEN SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH. (Attachments: # 1 Text of Proposed Order)(Freeny, Kyle) (Entered: 09/14/2009) RESPONSE re 19 Notice (Other) of Defendants' Objection to Plaintiffs' Related Case Designation filed by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, EMBRYOS, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON. (Lingo, Bradley) (Entered: 09/16/2009) REPLY re 19 Notice (Other) Defendants' Reply Regarding Their Objection to Plaintiffs' Related Case Designation filed by KATHLEEN SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH. (McElvain, Joel) (Entered: 09/18/2009) REPLY to opposition to motion re 4 MOTION to Appoint Guardian ad Litem filed by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, EMBRYOS, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON. (Hungar, Thomas) (Entered: 09/28/2009) REPLY to opposition to motion re 3 MOTION for Preliminary Injunction filed by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, EMBRYOS, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON. (Hungar, Thomas) (Entered: 09/28/2009) NOTICE of Proposed Order by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, EMBRYOS, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON re 3 MOTION for Preliminary Injunction (Hungar, Thomas) (Entered: 09/28/2009)

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Memorandum in opposition to re 22 MOTION to Dismiss filed by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, EMBRYOS, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON. (Attachments: # 1 Declaration of Ronald Stoddart in Support of Opposition to Motion to Dismiss, # 2 Text of Proposed Order Denying Defendants' Motion to Dismiss)(Hungar, Thomas) (Entered: 09/28/2009) REPLY to opposition to motion re 22 MOTION to Dismiss filed by KATHLEEN SEBELIUS, DEPARTMENT OF HEALTH AND HUMAN SERVICES, FRANCIS S. COLLINS, NATIONAL INSTITUTE OF HEALTH. (Womack, Eric) (Entered: 10/08/2009) Minute Entry for proceedings held before Chief Judge Royce C. Lamberth: Motion Hearing held on 10/14/2009. Motion on Preliminary Injuction heard and held in abeyance. (Court Reporter Theresa Sorensen.) (rje, ) (Entered: 10/14/2009)

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ORDER denying defendants' Objection 19 to Plaintiffs' Related Case Designation. Signed by Chief Judge Royce C. Lamberth on 10/15/2009. (lcrcl2, ) (Entered: 10/15/2009) NOTICE of Appearance by Ryan G. Koopmans on behalf of all plaintiffs (Koopmans, Ryan) (Entered: 10/16/2009) 13 ORDER granting defendants' Motion 22 to Dismiss. Signed by Chief Judge Royce C. Lamberth on 10/27/2009. (lcrcl2, ) (Entered: 10/27/2009) MEMORANDUM AND OPINION re: defendants' Motion 22 to Dismiss. A separate Order shall issue this dte. Signed by Chief Judge Royce C. Lamberth on 10/27/2009. (lcrcl2, ) (Entered: 10/27/2009) 14 ORDER denying as moot plaintiffs' Motion 3 for Preliminary Injunction, and Motion 4 to Appoint Guardian ad Litem. Signed by Chief Judge Royce C. Lamberth on 10/27/2009. (lcrcl2, ) (Entered: 10/27/2009) 11 NOTICE OF APPEAL as to 35 Order on Motion to Dismiss, 37 Order by WILLIAM FLYNN, PATRICIA FLYNN, CHRISTIAN MEDICAL ASSOCIATION, JAMES L. SHERLEY, EMBRYOS, THERESA DEISHER, NIGHT-LIGHT CHRISTIAN ADOPTIONS, SHAYNE NELSON, TINA NELSON. Filing fee $ 455, receipt number 4616024999. Fee Status: Fee Paid. Parties have been notified. (rdj) (Entered: 10/29/2009)

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Case 1:09-cv-1575

Document 38

Filed 10/28/2009

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

DR. JAMES L. SHERLEY; DR. THERESA DEISHER; NIGHTLIGHT CHRISTIAN ADOPTIONS, individually and as next friend for PLAINTIFF EMBRYOS; SHAYNE AND TINA NELSON; WILLIAM AND PATRICIA FLYNN; CHRISTIAN MEDICAL ASSOCIATION, Plaintiffs, v.

Case No. 1:09-cv-1575 RCL

KATHLEEN SEBELIUS, in her official capacity as Secretary of the Department of Health and Human Services; DEPARTMENT OF HEALTH AND HUMAN SERVICES; DR. FRANCIS S. COLLINS, in his official capacity as Director of the National Institutes of Health; NATIONAL INSTITUTES OF HEALTH, Defendants.

NOTICE OF APPEAL Notice is hereby given that Plaintiffs appeal to the United States Court of Appeals for the District of Columbia from the final judgment entered on October 27, 2009, the Order granting Defendants' Motion to Dismiss [Dock. No. 35] entered on October 27, 2009, and the Order denying Plaintiffs' Motion for Preliminary Injunction and Motion to Appoint a Guardian ad Litem [Dock. No. 37] entered on October 27, 2009. Dated: October 28, 2009 Respectfully Submitted, . /s/ Thomas G. Hungar . Thomas G. Hungar, D.C. Bar No. 447783 Bradley J. Lingo, D.C. Bar No. 490131 GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 [phone]

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Case 1:09-cv-1575

Document 38

Filed 10/28/2009

Page 2 of 2

Blaine H. Evanson, Cal. Bar No. 254338 Alison E. Klingel, Cal. Bar No. 258194 GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 [phone] Samuel B. Casey, Cal. Bar No. 76022 Law of Life Project ADVOCATES INTERNATIONAL 8001 Braddock Road, Suite 300 Springfield, VA 22151 [phone] Steven H. Aden, D.C. Bar No. 466777 ALLIANCE DEFENSE FUND 801 G. Street N.W., Suite 509 Washington, D.C. 20001 [phone] Counsel for Plaintiffs

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Case 1:09-cv-1575

Document 35

Filed 10/27/2009

Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) DR. JAMES L. SHERLEY, et al., ) ) Plaintiffs, ) ) v. ) Civ. No. 1:09-cv-1575 RCL ) ) KATHLEEN SEBELIUS, et al., ) ) Defendants. ) __________________________________________) ORDER Upon consideration of defendants' Motion to Dismiss, the memorandum of law in support thereof, and responses thereto, it is hereby ORDERED that the Motion to Dismiss is GRANTED, and that this action is DISMISSED WITH PREJUDICE.

Singed by Royce C. Lamberth, Chief Judge, on October 27, 2009.

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Case 1:09-cv-1575

Document 37

Filed 10/27/2009

Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) DR. JAMES L. SHERLEY, et al., ) ) Plaintiffs, ) ) v. ) Civ. No. 1:09-cv-1575 RCL ) ) KATHLEEN SEBELIUS, et al., ) ) Defendants. ) __________________________________________) ORDER In light of the Court's Order dismissing this case, it is hereby ORDERED that plaintiffs' Motions [3, 4] for Preliminary Injunction and to Appoint a Guardian ad Litem are DENIED AS MOOT.

Signed by Royce C. Lamberth, Chief Judge, on October 27, 2009.

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