Colwell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLIFFORD W. COLWELL, JR.; JOHN 

BROFMAN; LYNN I. DEMARCO;

PROENGLISH, a nonprofit organization; THE ASSOCIATION OF

AMERICAN PHYSICIANS & SURGEONS,

a nonprofit organization, No. 05-55450 Plaintiffs-Appellants, v.  D.C. No.

CV-04-01748-BTM

DEPARTMENT OF HEALTH AND OPINION

HUMAN SERVICES; MICHAEL O.

LEAVITT Secretary of Dept. of Health and Human Services, in his official capacity, Defendants-Appellees.  Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted February 13, 2007—Pasadena, California

Filed March 18, 2009

Before: Harry Pregerson, William A. Fletcher and Marsha S. Berzon, Circuit Judges.

Opinion by Judge William A. Fletcher

3479 3482 COLWELL v. HHS

COUNSEL

Sharon Louise Browne, Pacific Legal Foundation, Sacra- mento, California, Arthur B. Mark, III, Trainor Fairbrook, Sacramento, California, for the appellants. COLWELL v. HHS 3483 Tovah Calderon, Linda F. Thome, Asheesh…