IN THE UNITED STATES DISTRICT COURT
	FOR THE DISTRICT OF COLUMBIA

NIGHTLIGHT CHRISTIAN ADOPTIONS,			)
individually and as next friend for Potential Embryo		)
Adoptees; CHRISTIAN MEDICAL ASSOCIATION;	)
DR. DAVID A. PRENTICE, on behalf of himself and	)
all others similarly situated; JAMES P. &  			) Civil Action No. 01 CV 502 (RCL)
DONIELLE D. BRINKMAN; PETER E. &			)
SUZANNE M. MURRAY;  BRUCE L. &			)	
SUSAN E. STURCH,						)	 
)
Plaintiffs,						)
)
v. 					)
)
TOMMY G. THOMPSON, in his official capacity as	)
Secretary of the Department of Health and Human		)
Services,; DEPARTMENT OF HEALTH AND 		)
HUMAN SERVICES; DR. RUTH KIRSCHSTEIN, 	)
in her official capacity as Acting Director of the 		)
National Institutes of Health; NATIONAL 			)
INSTITUTES OF HEALTH,					)
)
Defendants.						)
________________________________________________)

MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE 
TO INTERVENE AS DEFENDANTS AND CROSS-CLAIMANTS

In this lawsuit, Plaintiffs Nightlight Christian Adoptions et al. (APlaintiffs@) are  seeking to declare unlawful and enjoin implementation of the NIH Guidelines for Research Using Human Pluripotent Stem Cells (AGuidelines@), which provide a framework for federal funding of scientific research involving human pluripotent stem cells derived from human embryos and fetal tissue.  This research holds promise for yielding dramatically improved treatments or cures for millions of persons suffering from some of the most devastating illnesses known.  Movants Dr. James Thomson et al. (AMovants@) support the legality of the Guidelines and include prominent scientists in the field of stem cell research who have applied or intend to apply for funding under the Guidelines, as well as patients who suffer from disorders such as Type I (juvenile) diabetes, spinal cord injuries, and Parkinson=s Disease B disorders considered early targets for cellular and tissue replacement therapies developed from human pluripotent stem cell research.
Defendants Tommy G. Thompson et al. (ADefendants@) have already suspended consideration of applications submitted pursuant to the Guidelines, including those submitted by Movants.  Moreover, Defendants have canceled the National Institutes of Health (ANIH@) meeting that was scheduled to review those applications; and have indefinitely delayed implementation of the Guidelines while the Department of Health and Human Services (AHHS@) considers whether to implement the Guidelines at all.  As such, Defendants have demonstrated that there is a very real possibility that they will not defend the Guidelines or will inadequately represent Movants= interests in this case.
 		Accordingly, Movants seek leave to intervene in this action as of right pursuant to Federal Rule of Civil Procedure 24(a), or by permission under Rule 24(b), and file an Answer and Cross-Claim for Declaratory and Injunctive Relief.   Movants= Cross-Claim seeks a declaration that the Guidelines do not conflict with federal law, as well as declaratory and injunctive relief requiring Defendants to implement the Guidelines and begin the NIH process for funding scientifically meritorious grant applications for research using human pluripotent stem cells.  
As demonstrated below, Movants are entitled to intervene in this proceeding because Plaintiffs= lawsuit threatens materially and adversely to affect Movants= substantial interests, and those interests will not adequately be protected unless Movants are made parties to this action.  Thus, Movants respectfully request that the Court grant their Motion.

	FACTS
A.  	Human Pluripotent Stem Cell Research

In 1998, two groups of research scientists, including Movants Dr. James Thomson of the University of Wisconsin and Dr. John Gearhart of The Johns Hopkins University, successfully isolated and cultured human pluripotent stem cells./  NIH Fact Sheet on Human Pluirpotent Stem Cell Research Guidelines (Jan. 19, 2001) (ANIH Fact Sheet@) (Ex. A).  Pluripotent stem cells have the ability to divide for indefinite periods in culture and to give rise to other kinds of specialized cells.  Human pluripotent stem cells can be derived from the inner cell mass of surplus embryos donated by couples undergoing in vitro fertility treatments (these pluripotent cells are also called Aembryonic stem cells@) or from non-living fetuses obtained from terminated first‑trimester pregnancies (also called Aembryonic germ cells@)./  NIH, AStem Cells: A Primer@ (May 2000) (AStem Cell Primer@) (Ex. B) at 2.   Dr. Thomson isolated pluripotent stem cells from embryos that were donated for research by persons undergoing in vitro fertility treatment, see James A. Thomson, et al., Embryonic Stem Cell Lines Derived from Human Blastocysts, 282 Science 1145 (Nov. 6, 1998), and Dr. Gearhart isolated such stem cells from fetal tissue, see Michael J. Shamblott, et al., Derivation of Pluripotent Stem Cells from Cultured Human Primordial Germ Cells, 95 Proc. Nat=l Acad. Sci. USA 13726 (Nov. 10, 1998).
Science magazine declared stem cells the Abreakthrough of the year@ in 1999. See Judith A. Johnson and Brian A. Jackson, AStem Cell Research,@ CRS Report for Congress (Ex. C) at 2.  Because pluripotent stem cells are self-replicating and have the potential to develop into virtually any tissue type or organ, they have been called Aa unique scientific and medical resource@ by NIH.  See NIH Fact Sheet (Ex. A) at 1.  First, and most important for purposes of this case, pluripotent stem cells can be treated to generate cells and tissues for transplantation therapies that replace missing, damaged, or dying cells.  Second, these stem cells may aid in the development and testing of new drugs because such drugs could be initially tested for safety and efficacy on target cells created from stem cells, with only the promising agents moving into more expensive animal studies and human clinical trials.  Finally, the study of these stem cells may revolutionize our understanding of birth defects and cancer, since the least understood phase of human development is how the cells in fertilized eggs differentiate into the more specialized cells that give rise to tissue and organs.  Thus, research on pluripotent stem cells holds the promise for treatments and cures for millions of persons suffering from some of humanity=s most devastating illnesses, including diabetes, Parkinson=s Disease, Alzheimer=s Disease, spinal cord injuries, ALS, cancer, heart disease, and many others.  See Hearings Before a Subcommittee of the Committee on Appropriations, United States Senate (AHearings@) (Statement of Harold Varmus, M.D., Director, NIH) (Ex. D) at 9; NIH Fact Sheet (Ex. A).

Stem cells also can be found in adult tissue.  Adult stem cells, however, are not pluripotent, but rather are  Amultipotent@ or organ-specific stem cells, which means that their cells have limited potential (compared to pluripotent stem cells) to give rise to other types of specialized cells.  Human adult stem cells have not yet been isolated for all cell and tissue types, and they have not been shown to be capable of developing into all of the different cell and tissue types of the body.  Furthermore, adult stem cells are difficult to obtain, since they are often present only in minute quantities.  In addition, it has not been shown that adult stem cells can be grown in culture in adequate amounts to develop therapies.  Stem Cell Primer (Ex. B); NIH Fact Sheet (Ex. A) at 1; Stem Cell Letter to President-Elect Bush (Jan. 17, 2001) (Ex. E).  
As eighty Nobel laureates who signed a letter to President Bush urging funding for research on human pluripotent stem cells correctly explained:
Some have suggested that adult stem cells may be sufficient to pursue all treatments for human disease.  It is premature to conclude that adult stem cells have the same potential as embryonic stem cells--and that potential will almost certainly vary from disease to disease.  Current evidence indicates that adult stem cells have markedly restricted differentiation potential.  Therefore, for disorders that prove not to be treatable with adult stem cells, impeding human pluripotent stem cell research risks unnecessary delay for millions of patients who may die or endure needless suffering while the effectiveness of adult stem cells is evaluated.

Nobel Laureates= Letter to President Bush (Ex. F).  
B.	Federal Funding of Human Pluripotent Stem Cell Research:  The Regulatory Framework

The breakthrough research conducted by Drs. Thomson and Gearhart was privately funded, as has been all such research to date involving the derivation of human pluripotent stem cells from embryos.  However, as shown below at pages 10-11, federal funds are the only realistic source for a sustained, substantial investment in research using the cells themselves.  Accordingly, following the announcement that human pluripotent stem cells had been successfully isolated and cultured, Dr. Harold Varmus, then Director of NIH, sought a legal opinion from the Office of the General Counsel of HHS as to whether federal funding of research using human pluripotent stem cells derived from embryos created by in vitro fertilization, or from cells isolated from the tissue of non-living fetuses, was consistent with federal law.  Memo from Harriet S. Rabb to Harold Varmus (Jan. 15, 1999) (ARabb Memo@) (Ex. G).
On January 15, 1999, the General Counsel of HHS concluded that federal funding involving research using stem cells derived from embryos and fetal tissue was lawful, so long as private funds were used to derive the cells from the embryos.  Id.  The General Counsel noted that Section 511 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277 (currently found at Section 510 of the Omnibus Consolidated Appropriations Act of 2001, Pub. L. No. 106-554) precludes federal funding for research in which Ahuman . . . embryos are destroyed, discarded, or knowingly subjected to risk of injury or death.@  The General Counsel correctly concluded, however, that pluripotent stem cells are not Aembryos@ within the meaning of the statutory definition./  Id.

  		The NIH then instituted a notice and comment procedure to develop guidelines for such research.  Draft guidelines were issued on December 2, 1999.  64 Fed. Reg. 67576 (Dec. 2, 1999).  The final NIH Guidelines for Research Using Human Pluripotent Stem Cells were issued on August 25, 2000.  65 Fed. Reg. 51976 (Aug. 25, 2000) (Ex. H).  The Guidelines authorize NIH to fund scientific research using human pluripotent stem cells after such cells have been derived from embryos or fetal tissue, so long as such funds are not used in connection with the process of deriving the stem cells from the embryos themselves.   Id. 
The Guidelines establish certain procedures to ensure that research conducted on pluripotent stem cells derived from human embryos or fetal tissue is lawful and ethical.  For example, the Guidelines authorize federal funding of research using stem cells derived from embryos only if the embryos were created for the purpose of fertility treatment B not for research
B and were in excess of the clinical need of the individuals seeking such fertility treatment.  65 Fed. Reg. 51979.  Furthermore, to ensure that the donation of embryos in excess of clinical need is voluntary, no inducements, monetary or otherwise, may be offered for the donation of the embryos.  Id.  Fertility clinics and their affiliated laboratories must implement specific written procedures and practices to ensure that no such inducements are made.  Id.  In addition, the Guidelines provide a series of conditions to ensure the donor=s informed consent.  Id.  Finally, to ensure compliance and monitor the development of research practices, the Guidelines establish the NIH Human Pluripotent Stem Cell Review Group (AReview Group@), which was intended to review funding requests that propose to use human pluripotent stem cells.  Id. at 51981.
C.	The Reaction of the Bush Administration

During the most recent presidential campaign, spokespersons for George W. Bush stated that Mr. Bush was opposed to federal funding of human pluripotent stem cell research.  See ABush Position on Stem Cell Research Reiterated,@ Associated Press (Jan. 4, 2001) (Ex. I); Rick Weiss, AFetal Cell Research Funds Are At Risk,@ Washington Post (Jan. 26, 2001) (Ex. J).  Since he took office, President Bush=s Administration already has taken steps to curtail and delay federal funding of human pluripotent stem cell research.  For example, on or about April 20, 2001, Defendant HHS ordered the cancellation of the inaugural meeting of the Review Group, which had been scheduled to review the first applications under the Guidelines from scientists seeking federal funds for human embryonic stem cell research.  Rick Weiss, ABush Administration Order Halts Stem Cell Meeting,@ Washington Post (April 21, 2001) (Ex. K).  Moreover, HHS is currently reexamining the Guidelines to determine whether to rescind them.  Consideration of all applications for federal funding of human pluripotent stem cell research has been suspended pending this new review of the Guidelines.  This delay in the application approval process, if allowed to continue, will substantially retard the development of human pluripotent stem cell research in this country.
D.	Plaintiffs= Lawsuit
Plaintiffs filed this lawsuit on March 8, 2001, seeking to declare unlawful and enjoin the implementation of the Guidelines.  Plaintiffs are opposed to federal funding of human embryonic stem cell research.  Plaintiffs consist of Nightlight Christian Adoptions, which contends that it engages in Aadoption@ of human embryos stored in fertilization clinics, and also purports to act as Anext friend@ for all APotential Embryo Adoptees@ (surplus embryos currently stored in fertilization clinics); Christian Medical Association, a not-for-profit association of doctors and dentists opposed to research on embryonic stem cells; Dr. David A. Prentice, a university professor engaged in research on adult stem cells who complains of the allegedly increased competition for federal funds that would result if federal funding were available to those engaged in embryonic stem cell research; and James and Donielle Brinkman, Peter and Suzanne Murray, and Bruce and Susan Sturch, who claim to be clients of Nightlight and who wish to adopt embryos for implantation.  (Complaint && 6-12)

 Plaintiffs= two-count Complaint alleges that the Guidelines were promulgated contrary to federal law and constitute arbitrary and capricious agency action under the Administrative Procedure Act, 5 U.S.C. ' 706(2).  Plaintiffs seek declaratory and injunctive relief to invalidate and rescind implementation of the Guidelines.
E.	Movants= Interest in this Litigation
The Movants are individuals with a direct and substantial interest in full and immediate implementation of the Guidelines.  Among the Movants are prominent scientists in the field of human pluripotent stem cell research.  See Hearings (Ex. D) at 11-19, 98-101 (Statements by Gearhart, Thomson, and Melton).  Dr. James Thomson is an Assistant Professor at the University of Wisconsin, Department of Anatomy, and is, as noted above, one of the first scientists to succeed in isolating human pluripotent stem cells.  Dr. Roger Pedersen is a Professor and Research Director, Department of Obstetrics, Gynecology and Reproductive Sciences, at University of California, San Francisco.  Dr. Douglas Melton is the Cabot Professor and Chairman of the Department of Molecular and Cellular Biology at Harvard University.  Dr. John Gearhart is the C. Michael Armstrong Professor at The Johns Hopkins University and also is, as noted above, one of the first scientists to succeed in isolating pluripotent stem cells.  Dr. Dan Kaufman is a Fellow in the Department of Internal Medicine/Hematology at the University of Wisconsin.  Dr. Alan Trounson is a Professor of Obstetrics & Gynecology/Pediatrics and the Director of the Centre for Early Human Development, the Institute of Reproduction and Development, at Monash Medical Center in Australia.  Dr. Martin Pera is an Associate Professor and Deputy Director of the Centre for Early Human Development at Monash University.

Drs. Thomson, Pedersen, Melton, Gearhart, and Trounson have been principal investigators on NIH-funded grants or contracts, and all the Movant research scientists are eligible for and have applied, or intend to apply, for NIH funding involving human pluripotent stem cells if the current moratorium on funding is lifted.  Further, Drs. Pedersen, Trounson, and Pera are among the investigators who had submitted applications that were to be reviewed at the now-canceled meeting of the NIH Review Group.  See, e.g., Professor Alan Trounson, AApplication to NIH for Approval of Compliance with NIH Guidelines on Use of Human Pluripotent Stem Cells@ (Ex. L).  
Movants also include patients who suffer from disorders for which human pluripotent stem cell research holds the promise for treatment and, ultimately, a cure.  Christopher Reeve is the founder and Chairman of the Board of the Christopher Reeve Paralysis Foundation.  Mr. Reeve has sustained paralysis as a result of a spinal cord injury.  The Foundation encourages and supports research to develop effective treatments and a cure for paralysis caused by spinal cord injury and other central nervous system disorders.  Mr. Reeve and his Foundation believe that human pluripotent stem cell research is a primary source for such a cure.  James Cordy suffers from Parkinson=s Disease and is interested in receiving a cellular replacement treatment that restores lost function.  He also views research on human pluripotent stem cells as a primary source for such a treatment.  James Tyree suffers from Type I (juvenile) diabetes and is interested in receiving embryonic islet stem cell transplants.  Like the other patients, he views research on human pluripotent stem cells as a primary source for such a treatment.

Defendants= delay in federal funding of human pluripotent stem cell research B after issuance of the putatively final NIH Guidelines B has caused and will continue to cause irreparable harm to Movants and to the public at large.  Federal funding is essential for the full realization of the potential health benefits of stem cell technology.  Such research will require a sustained, substantial investment, and the federal government is the only realistic source for such an infusion of funds.  See Audrey R. Chapman, et al., AStem Cell Research and Applications:  Monitoring the Frontiers of Biomedical Research (Nov. 1999) (Ex. M) at vi; see also AAAS Letter to President Bush (March 6, 2001) (Ex. N).  Furthermore, the availability to qualified scientists of shared, standard genetic data and other standard information and models is indispensable to the advancement of this research.  Public funding under federal auspices is the only effective way of making embryonic stem cell lines available broadly to the scientific community.  Moreover, research that is privately funded is not subject to any consistent ethical and regulatory constraints.  Federal funding for such research is therefore necessary to ensure effective oversight as to the source of cells, enforcement of the Guidelines= provisions for informed consent, and the safe and ethical use of pluripotent stem cells.   Id. at v-vi.
 		Thus, Defendants= failure to implement the Guidelines and begin the process of funding human pluripotent stem cell research (and the resulting delay and uncertainty in the federal funding process) threaten to deny federal funds to Movants, to restrict the collegial sharing of cell lines among scientists, to discourage talented young researchers from joining Movants= laboratories or from entering the field of human pluripotent stem cell research, and to substantially retard human pluripotent stem cell research in this country.  As a consequence, Defendants= actions are preventing or delaying the development of potential treatments and cures for a host of debilitating illnesses and conditions that afflict countless Americans.

	ARGUMENT
I.	MOVANTS ARE ENTITLED TO INTERVENE IN THIS ACTION AS A MATTER OF RIGHT PURSUANT TO RULE 24(a).	

Federal Rule of Civil Procedure 24(a)(2) provides that, upon timely application, a party is entitled to intervene as matter of right when
the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant=s ability to protect that interest, unless the applicant=s interest is adequately represented by existing parties.
Fed. R. Civ. P. 24(a)(2).  Thus, under Rule 24(a), intervention as of right is appropriate if (1) the application is timely; (2) the applicant has an interest relating to the subject matter of the main action; (3) the applicant is so situated that disposition of the action Amay as a practical matter@ impair or impede the applicant=s ability to protect that interest; and (4) there is a possibility that the  applicant=s interest may not be adequately represented by the existing parties to the action.  See, e.g., In re Sealed Case, 237 F.3d 657, 663-64 (D.C. Cir. 2001). 
AThe right of intervention conferred by Rule 24 implements the basic jurisprudential assumption that the interest of justice is best served when all parties with a real stake in a controversy are afforded an opportunity to be heard.@  Hodgson v. United Mine Workers of Am., 473 F.2d 118, 130 (D.C. Cir. 1972).  Accordingly, Rule 24 should be construed liberally, in favor of intervention.  See, e.g., Nuesse v. Camp, 385 F.2d 694, 699, 701-02 (D.C. Cir. 1967).  Because Movants have satisfied all four requirements of Rule 24(a), they are entitled to intervene in this action as a matter of right.

A.	Movants= Application Is Timely.	
This case was filed on March 8, 2001, and Defendants have not yet responded to the Complaint.  This Court has made no substantive or procedural rulings in the case.  Movants= application for intervention comes, therefore, at virtually the earliest possible stage of these proceedings.  In light of these facts, Movants= application is timely.  See, e.g., Dimond v. District of Columbia, 792 F.2d 179, 193 (D. C. Cir. 1986) (permitting intervention even after judgment); NRDC v. Costle, 561 F.2d 904, 907-08 (D.C. Cir. 1977) (intervention allowed three years after action filed); Grumman Flexible Corp. v. Dole, 102 F.R.D. 36, 38 (D.D.C. 1983) (intervention timely even though application was filed several months after suit was instituted, and after defendant had filed summary judgment motion).
B.	Movants Possess Legally Protectable Interests Relating to this Action.	
Movants also possess a direct and significant legally protectable interest relating to the subject matter of this action.  Rule 24(a)=s Ainterest@ requirement is Aprimarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.@  Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967).  As with the other elements of Rule 24, this requirement is construed liberally so as to allow intervention.  See, e.g., Cook v. Boorstin, 763 F.2d 1462, 1466 (D.C. Cir. 1985); Costle, 561 F.2d at 910‑11.

Here, Movants= interests not only Arelate@ to the subject matter of this litigation; they are the subject matter of this litigation.  The case involves the right of the Movant scientists to apply for and receive federal funding for their human pluripotent stem cell research.  Indeed, several Movants have applications pending under the Guidelines that Plaintiffs seek to invalidate.  Likewise, the Movant patients are all individuals who have a direct and especially compelling interest B in light of their current health issues B in seeing such federally funded research go forward as expeditiously as possible.  Plaintiffs= Complaint seeks relief that would deprive Movants of their substantial rights.  A grant of the requested relief would prevent or at least substantially impede the Movant scientists= research, and would eliminate perhaps the most promising hope of treatment for the Movant patients.  As such, Movants have legally protectable interests in the subject matter of this litigation.  See, e.g., Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1075-76 (D.C. Cir. 1998).  
C.	Movants= Ability to Protect Their Interests Will Be Impaired by This Action.
 		The next requirement for intervention as of right under Rule 24(a) is a showing that as a practical matter, Movants= legally cognizable interests are likely to be impaired or impeded by the disposition of this action in their absence.  The standard of Apractical impairment@ does not require a showing that a potential intervenor will be legally bound by the judgment of the original action.  Rather, the intervenors need establish only that Atheir ability to protect their interest could be impaired or impeded by the principle of stare decisis.@  Foster v. Gueory, 655 F.2d 1319, 1325 (D.C. Cir. 1981); see, e.g., Nuesse, 385 F.2d at 702 (court must look to Apractical consequences@ of denial of intervention, even if there remained possibility of future challenge to regulation).  

A decision by this Court (or the Court of Appeals) on the issues raised by this litigation would, as a practical matter, impact Movants= interests.  Any ruling that the Guidelines are unlawful, for example, would bar Defendants from granting Movants= pending applications and other funding requests.  And even if Movants could then bring their own lawsuit to compel funding, the potential adverse stare decisis impact of such a decision is sufficient to Asupply the practical disadvantage that warrants intervention as of right.@  Nuesse, 385 F.2d at 702.  Even a decision upholding the validity of the Guidelines but allowing the Defendants to continue on their current course of delay would impair Movants= interests.  Thus, Movants= right to intervene is supported by this element of Rule 24(a) too. 
D.	Movants= Interests Will Not Be Adequately Represented by Defendants.	
The final requirement under Rule 24(a) is the Aminimal@ burden of establishing that Movants= interests Amay@ be inadequately represented by the existing parties to this litigation.  See, e.g., Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972) (noting that burden is Aminimal@); Dimond, 792 F.2d at 192 (AThe applicant need only show that representation of his interest >may be= inadequate, not that representation will in fact be inadequate.@); see also Costle, 561 F.2d at 911-12.  Moreover, it is sufficient to show that the representation may be inadequate at some stage, even if at present the relevant parties= interests appear similar.  Diamond, 792 F.2d at 192.
In this case, it is clear that Defendants cannot or will not adequately represent the Movants= interests.  As noted above, Defendants have already failed to implement the Guidelines.  Defendants= delay in implementing the Guidelines and beginning the process of funding human pluripotent stem cell research has already caused, and continues to cause, irreparable harm to Movants.  Moreover, Defendants are engaged in a new round of review, which may result in an invalidation of the Guidelines  on legal or policy grounds.  It can hardly be said, therefore, that Defendants are certain to defend the Guidelines and ensure quick and full funding of human pluripotent stem cell research.  

Indeed, even if Defendants were willing to defend the Guidelines as a general matter, it is by no means clear that Defendants would adopt Movants= position that funding of stem cell research is required by federal law, and that the current delay in funding is itself unlawful.  As explained in the attached Cross-Claim, in addition to defending the legality of the Guidelines, Movants assert that:
(1)	The current delay in funding and potential reversal of the Guidelines by the Defendants is unlawful under the NIH Revitalization Act of 1993.  That Act affirmatively prohibits the executive branch of government from interfering with research involving cells derived from human fetal tissue (including embryos), and provides that Ano official of the executive branch may impose a policy that the Department of Health and Human Services is prohibited from conducting or supporting any research on the transplantation of human fetal tissue for therapeutic purposes.@  42 U.S.C. ' 289g-1 (note), Pub. L. No. 103-43, Title I, ' 113.  The Act further provides that the Secretary of HHS Amay not withhold funds@ for research using human pluripotent stem cells in cases of technical and scientific merit.  Id.  

(2)	The Guidelines were developed through the informal rulemaking procedures under ' 553 of the Administrative Procedure Act, 5 U.S.C. ' 553.  Defendants must adhere to and implement the Guidelines unless and until they are modified through rulemaking procedures in accordance with 5 U.S.C. ' 553.

(3)	Defendants= failure to implement the Guidelines and to fund HPSC research is contrary to their statutory duty to  Aencourage, cooperate with, and render assistance to other appropriate public authorities, scientific investigators, and scientists in the conduct of, and promote the coordination of, research, investigations, experiments, demonstrations, and studies relating to the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and impairments of man,@ 42 U.S.C. '' 241 and 282, and constitutes unlawful, arbitrary, and capricious agency action under 5 U.S.C. ' 706(2).

Furthermore, Defendants= interests in this litigation are fundamentally different from those of Movants, and Defendants therefore could not be expected adequately to represent Movants= interests in this lawsuit.  For example, the researcher Movants are devoting their professional careers to the advancement of human pluripotent stem cell research.  Defendants do not share the private professional, economic, and scholarly interests in the outcome of this litigation that these Movants possess.  See, e.g., Dimond, 792 F.2d at 192-93 (governmental defendant had no financial stake in outcome of litigation and therefore could not adequately represent intervenor=s financial interests in litigation challenging statute)./   Nor, certainly, do Defendants possess the profound and deeply personal interests of the patients who seek to intervene in order to advance the state of stem cell research and thereby advance the discovery of potential treatments and cures for their ailments.  The possibility of inadequate representation by Defendants is therefore very real, which is all that is required under Rule 24(a).
II.	MOVANTS ALSO SATISFY THE REQUIREMENTS OF PERMISSIVE INTERVENTION UNDER RULE 24(b).	

Movants also are entitled to intervene pursuant to the Apermissive intervention@ provisions of Rule 24(b).  Rule 24(b)(2) provides that, upon timely application,
anyone may be permitted to intervene in an action . . . when an applicant=s claim or defense and the main action have a question or law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Fed. R. Civ. P. 24(b).  Thus, intervention under Rule 24(b)(2) is appropriate when (1) the application is timely; (2) there exists an independent basis for jurisdiction over the intervenor=s claim or defense; and (3) the intervenor=s claim or defense and the main action have in common a question of law or fact.  See, e.g., EEOC v. National Children=s Center, Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998); Nuesse, 385 F.2d at 704.  Movants have satisfied these requirements.
First, as demonstrated above, Movants= application for intervention is timely, and intervention will not unduly delay or prejudice the adjudication of the rights of the existing parties.  See supra p. 13.  Second, there exists federal question jurisdiction over Movants= defenses and Cross-Claim pursuant to 28 U.S.C. ' 1331 and the Administrative Procedure Act, 5 U.S.C. '' 702, 703.  Finally, there is no question that the issues that will be raised in this action have in common one or more questions of law or fact B the issues, indeed, are identical.  Thus, as an alternative to intervention under Rule 24(a), Movants request that the Court exercise its discretion and permit Movants to intervene in this case under Rule 24(b).

	CONCLUSION
For the foregoing reasons, Movants respectfully request that the Court grant their Motion and allow them to intervene in this action as Defendants and Cross-Claimants.

Respectfully submitted,

____________________________
Marci A. Eisenstein					Jeffrey C. Martin 			Max G. Brittain, Jr.					DC Bar No. 350421	
Frederick J. Sperling					Richard M. Wyner
Aphrodite Kokolis					DC Bar No. 376320
Julie J. Furer						Donald J. Munro
Schiff Hardin & Waite					DC Bar No. 453600
6600 Sears Tower					Shea & Gardner
Chicago, Illinois  60606				1800 Massachusetts Avenue, NW
(312) 258-5500					Suite 700
Washington, DC 20036
(202) 828-2000
Clarence T. Kipps, Jr.
DC Bar No. 007088
Miller & Chevalier
1450 G Street, NW
9th Floor
Washington, DC  20005
(202) 626-5840

	Attorneys for Movants

May 2, 2001