Sacramento Nonprofit Collectiv v. Eric Holder, Jr. , 552 F. App'x 680 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SACRAMENTO NONPROFIT No. 12-15991
COLLECTIVE, DBA El Camino Wellness
Center, a mutual benefit non-profit D.C. No. 2:11-cv-02939-GEB-
collective; RYAN LANDERS, an EFB
individual,
Plaintiffs - Appellants, MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General;
MICHELLE LEONHART, Administrator
of the Drug Enforcement Administration;
BENJAMIN B. WAGNER, U.S. Attorney
for the Eastern District,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
ALTERNATIVE COMMUNITY No. 12-55775
HEALTH CARE COOPERATIVE, INC.,
a not-for-profit cooperative corporation, D.C. No. 3:11-cv-02585-DMS-
DBA Cloud 9 Cooperative; LIGHT THE BGS
WAY, a mutual benefit non-profit
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
collective; MOTHER EARTH’S
ALTERNATIVE HEALING
COOPERATIVE, INC., a not-for-profit
cooperative corporation; AMERICAN
TREATMENT ADVANCEMENT
COOPERATIVE, INC., a mutual benefit
non-profit cooperative corporation; JOY
GREENFIELD, an individual,
Plaintiffs - Appellants,
v.
ERIC H. HOLDER, Jr., Attorney General;
MICHELLE LEONHARTDEF,
Administrator of the Drug Enforcement
Administration; LAURA E. DUFFY, U.S.
Attorney for the Southern District of
California,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
MARIN ALLIANCE FOR MEDICAL No. 12-16710
MARIJUANA, a not-for-profit
association; JOHN D’AMATO, an D.C. No. 4:11-cv-05349-SBA
individual; MEDITHRIVE, INC., a not-
for-profit cooperative corporation, DBA
MediThrive Cooperative; THE JANE
PLOTITSA SHELTER TRUST, a
revocable living trust; THE FELM
TRUST, an irrevocable living trust; THE
2
DIVINITY TREE PATIENT’S
WELLNESS COOPERATIVE, INC., a
not-for-profit cooperative corporation,
Plaintiffs - Appellants,
v.
ERIC H. HOLDER, Jr., Attorney General;
MICHELLE LEONHART, Administrator
of the Drug Enforcement Agency;
MELINDA HAAG, U.S. Attorney for the
Northern District of California,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Saundra Brown Armstrong, Senior District Judge, Presiding
Submitted January 13, 2014**
San Francisco, California
Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.
In this consolidated appeal, Plaintiffs-Appellants Sacramento Nonprofit
Collective and other distributors of medical marijuana as well as patients and
landlords of the marijuana distributors (collectively “Appellants”) appeal the
decisions of three different California district courts dismissing their actions for
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The
lawsuits alleged violations of Appellants’ Fifth and Ninth Amendment rights and
raised a judicial estoppel argument. Appellants seek, through injunctive relief
against various federal law enforcement authorities, to prevent the federal
prosecution of both cooperatives operating marijuana dispensaries pursuant to
California state law as well as other entities affiliated with the marijuana
dispensaries (such as their landlords). We review de novo the dismissal of a
complaint by the district court pursuant to Federal Rule of Civil Procedure
12(b)(6). W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 975 (9th Cir. 2012).
And we review “a district court’s application of judicial estoppel . . . for abuse of
discretion.” Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d
983, 992 (9th Cir. 2012).
Because “the legal issues on appeal are fairly raised by” at least one
Appellant with standing, we “need not consider the standing” of John D’Amato
and Ryan Landers. Comite de Jornaleros de Redondo Beach v. City of Redondo
Beach, 657 F.3d 936, 943–44 (9th Cir. 2011) (en banc) (internal quotation marks
omitted).
Appellants contend that the Ninth Amendment and the substantive due
process component of the Fifth Amendment together protect a fundamental right to
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“distribute, possess and use medical cannabis” in compliance with California state
law. But this argument is squarely foreclosed by Raich v. Gonzales (Raich II), 500
F.3d 850, 864–66 (9th Cir. 2007). In Raich II, we rejected the notion that “the Due
Process Clause embraces a right to make a life-shaping decision on a physician’s
advice to use medical marijuana . . . when all other prescribed medications and
remedies have failed.” Id. Although we noted in Raich II that the passage of time
coupled with changing social views may alter the fundamental rights analysis,1 id.
at 865–66, a prior holding of this court may only be overturned through en banc
consideration, see United States v. Parker, 651 F.3d 1180, 1184 (9th Cir. 2011).
Second, Appellants allege that federal enforcement of the CSA violates
Equal Protection because the federal ban on medical marijuana, “while permitting
prescription drugs[,] has no rational basis.” Assuming that Appellants did not
waive this claim by failing to specifically raise it in their complaints, see Raich II,
500 F.3d at 868, the argument is foreclosed by our prior precedent, see, e.g.,
United States v. Miroyan, 577 F.2d 489, 495 (9th Cir. 1978) (rejecting through
citation to supporting case law the argument that “[m]arijuana . . . cannot rationally
1
Although the use of medical marijuana is more accepted today than it was
in 2007, we are unwilling to declare that legal recognition of such a right has
reached the point where it should be removed from “the arena of public debate and
legislative action” and deemed “implicit in the concept of ordered liberty.” Raich
II, 500 F.3d at 866.
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be deemed to meet the criteria required for a Schedule I controlled substance
[under the CSA]”), overruled on other grounds as recognized by United States v.
Pineda-Moreno, 688 F.3d 1087, 1090–91 (9th Cir. 2012); see also James v. City of
Costa Mesa, 700 F.3d 394, 405 (9th Cir. 2012) (rejecting plaintiffs’ equal
protection argument that implementation of a D.C. medical marijuana initiative
resulted in unequal treatment of D.C. and California residents by broadly noting
that “[l]ocal decriminalization notwithstanding, the unambiguous federal
prohibitions on medical marijuana use set forth in the CSA continue to apply in
[all] jurisdictions”).
Third, Appellants claim that the Government is judicially estopped from
enforcing the CSA because in a prior lawsuit involving different plaintiffs, the
parties entered into a joint stipulation to dismiss the sole remaining claim in that
case—that the Tenth Amendment barred federal enforcement of the CSA with
respect to medical marijuana use under California law—in light of the Ogden
Memorandum.2 But the Appellants over-read the statements made in both the
Ogden Memorandum and during the course of the prior litigation; at no point did
2
Appellants assert that the Medical Marijuana Guidance document referred
to by the district court in the prior litigation is somehow different from the Ogden
Memorandum. But the joint stipulation in the prior case makes clear that the
document referred to is the Ogden Memorandum.
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the Government promise not to enforce the CSA. Appellants therefore identify no
clear inconsistency between the Government’s current and prior positions as is
required to invoke the doctrine of judicial estoppel. New Hampshire v. Maine, 532
U.S. 742, 750–51 (2001).
Nor do the Appellants demonstrate that the Government misled the court or
would derive an unfair advantage if not estopped. Id. (describing these as other
requirements for judicial estoppel). Appellants also do not allege that the
Government engaged in fraud. See Milton H. Greene Archives, Inc., 692 F.3d at
993–94 (noting that chicanery or fraud on the court is an important factor of
judicial estoppel even if it is not a requisite element). Estoppel in this case “would
compromise a governmental interest in enforcing the law” and would therefore be
inappropriate. New Hampshire, 532 U.S. at 755.
The district courts properly dismissed Appellants’ request for injunctive
relief.
AFFIRMED.
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