Hemp Industries Association v. DEA ( 2022 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued April 19, 2022                 Decided June 10, 2022
    No. 21-5111
    HEMP INDUSTRIES ASSOCIATION AND RE BOTANICALS, INC.,
    APPELLANTS
    v.
    DRUG ENFORCEMENT ADMINISTRATION AND ANNE MILGRAM,
    IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE UNITED
    STATES DRUG ENFORCEMENT ADMINISTRATION,
    APPELLEES
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:20-cv-02921)
    Matthew C. Zorn argued the cause for appellants. With
    him on the briefs were Shane Pennington, Shawn Hauser, and
    David C. Kramer.
    Sarah Carroll, Attorney, U.S. Department of Justice,
    argued the cause for appellees. With her on the brief were
    Brian M. Boynton, Acting Assistant Attorney General, and
    Mark B. Stern, Attorney.
    Before: HENDERSON and ROGERS, Circuit Judges, and
    SILBERMAN, Senior Circuit Judge.
    2
    Opinion for the Court filed by Circuit Judge HENDERSON.
    KAREN LECRAFT HENDERSON, Circuit Judge: This appeal
    centers on recent statutory and regulatory changes to the legal
    status of hemp—a non-psychoactive variant of the Cannabis
    sativa L. (cannabis) plant that is related to but distinct from
    marijuana, the more well-known psychoactive variant. In
    August 2020, the United States Drug Enforcement
    Administration (DEA) issued a rule meant to conform its
    existing regulations to recent congressional amendments to the
    Controlled Substances Act (CSA or Act), 
    21 U.S.C. § 801
     et
    seq., in its treatment of hemp. Shortly thereafter, the Hemp
    Industries Association (Hemp Association), a trade association
    of the hemp industry, and RE Botanicals, Inc. (RE Botanicals),
    a manufacturer and seller of consumer products derived from
    hemp, (collectively, the Plaintiffs) filed suit against the DEA,
    seeking declaratory and injunctive relief preventing the agency
    from enforcing the CSA against two necessary byproducts of
    the hemp-extract production process. The district court
    dismissed for lack of subject matter jurisdiction, concluding
    that the Plaintiffs’ suit impermissibly challenged the DEA rule
    by failing to use the statutory review provision for rules
    promulgated under the CSA. See generally Hemp Indus. Ass’n
    v. DEA, 
    539 F. Supp. 3d 120
     (D.D.C. 2021). As detailed infra,
    we affirm.
    I. Background
    At the motion-to-dismiss stage, we “assume the truth of all
    material factual allegations in the complaint and ‘construe the
    complaint liberally, granting plaintiff[s] the benefit of all
    inferences that can be derived from the facts alleged.’” Am.
    Nat’l Ins. Co. v. FDIC, 
    642 F.3d 1137
    , 1139 (D.C. Cir. 2011)
    (quoting Thomas v. Principi, 
    394 F.3d 970
    , 972 (D.C. Cir.
    2005)).
    3
    A.
    In 1970, the Congress passed the Controlled Substances
    1
    Act, “a comprehensive statute designed to rationalize federal
    control of dangerous drugs.” Nat’l Org. for Reform of
    Marijuana Laws (NORML) v. DEA, 
    559 F.2d 735
    , 737 (D.C.
    Cir. 1977). Under the CSA, each “controlled substance,” see
    
    21 U.S.C. § 802
    (6) (defining the term), is placed on one of five
    “schedules”—designated as Schedules I through V—of
    descending regulatory severity based on the risks and benefits
    associated with the substance. See 
    id.
     § 812(a)–(b)
    (establishing and defining each schedule). The controls
    imposed on the manufacture, acquisition and distribution of
    substances listed under the CSA and the penalties for violations
    of those controls vary according to the schedule in which a
    substance is listed. See id. §§ 821–32 (controls), 841–65
    (offenses and penalties); see also Gonzales v. Raich, 
    545 U.S. 1
    , 13–14 (2005). For example, Schedule I substances—which
    have “a high potential for abuse,” “no currently accepted
    medical use in treatment” and “a lack of accepted safety for use
    . . . under medical supervision”—are subject to the most
    stringent controls and penalties. See 
    id.
     §§ 812(b)(1)(A)–(C),
    841. The Attorney General has delegated his authority under
    the CSA, including his rulemaking and scheduling authority, to
    the DEA. See 
    28 C.F.R. § 0.100
    (b); see also 
    21 U.S.C. § 871
    (a)
    (permitting delegation). The court of appeals has exclusive
    jurisdiction of “[a]ll final determinations, findings, and
    conclusions” issued by the DEA pursuant to the CSA.
    
    21 U.S.C. § 877
    ; see John Doe, Inc. v. DEA, 
    484 F.3d 561
    , 568
    (D.C. Cir. 2007).
    1
    The Controlled Substances Act comprises Title II of the
    Comprehensive Drug Abuse Prevention and Control Act of 1970,
    Pub. L. No. 91-513, 
    84 Stat. 1242
    .
    4
    The CSA lists marijuana as a Schedule I substance. See 
    21 U.S.C. § 812
    (c) (Schedule I (c)(10)). Before 2018, the statutory
    definition of marijuana excluded hemp from its purview by
    carving out the non-psychoactive parts of the cannabis plant:
    The term “marihuana” 2 means all parts of the
    plant Cannabis sativa L., whether growing or
    not; the seeds thereof; the resin extracted from
    any part of such plant; and every compound,
    manufacture, salt, derivative, mixture, or
    preparation of such plant, its seeds or resin.
    Such term does not include the mature stalks of
    such plant, fiber produced from such stalks, oil
    or cake made from the seeds of such plant, any
    other compound, manufacture, salt, derivative,
    mixture, or preparation of such mature stalks
    (except the resin extracted therefrom), fiber, oil,
    or cake, or the sterilized seed of such plant
    which is incapable of germination.
    
    Id.
     § 802(16) (emphasis added) (2012). The Congress also
    listed tetrahydrocannabinols (THC), the key psychoactive
    compound found in the cannabis plant, as a Schedule I
    controlled substance, see 
    21 U.S.C. § 812
    (c) (Schedule
    I (c)(17)), but it did not define the term, leaving the definition
    up to the DEA, see 
    21 C.F.R. § 1308.11
    (d)(31).
    After what one can fairly characterize as a series of
    longstanding disputes among the hemp industry, the DEA,
    States and the Congress regarding the DEA’s authority to
    regulate hemp, see Am. Compl. ¶¶ 40–61; see also Monson v.
    DEA, 
    589 F.3d 952
    , 957 (8th Cir. 2009); United States v.
    2
    The Controlled Substances Act and implementing regulations
    often use the “marihuana” spelling. Other than direct references to or
    quotations of either, we use “marijuana.”
    5
    Mallory, 
    372 F. Supp. 3d 377
    , 382–83, 384–85 (S.D. W. Va.
    2019), the Congress significantly altered the CSA regulation of
    hemp as part of the Agricultural Improvement Act of 2018,
    Pub. L. No. 115–334, 
    132 Stat. 4490
     (2018 Farm Bill).
    Relevant here, the 2018 Farm Bill included a new definition of
    “hemp”:
    “[H]emp” means the plant Cannabis sativa L.
    and any part of that plant, including the seeds
    thereof and all derivatives, extracts,
    cannabinoids, isomers, acids, salts, and salts of
    isomers, whether growing or not, with a delta-9
    tetrahydrocannabinol concentration of not more
    than 0.3 percent on a dry weight basis.
    7 U.S.C. § 1639o(1). 3 It also amended the CSA in two key
    respects. First, it clarified that “[t]he term ‘marihuana’ does not
    include . . . hemp, as defined in section 1639o of Title 7.” 
    21 U.S.C. § 802
    (16)(B)(i). Second, it removed “[THC] in hemp
    (as defined under section 1639o of Title 7)” from the statutory
    listing of THC. 
    Id.
     § 812(c) (Schedule I (c)(17)). The 2018
    Farm Bill granted the Secretary of the United States
    Department of Agriculture (USDA)—subject to exceptions not
    pertinent here—“sole authority to promulgate Federal
    regulations and guidelines that relate to the production of
    hemp,” 7 U.S.C. § 1639r(b); see also id. § 1639o(3), and
    3
    The Congress first differentiated hemp from marijuana based
    on delta-9 THC concentration in the Agricultural Act of 2014, Pub.
    L. No. 113-79, 
    128 Stat. 649
    , which authorized the cultivation of
    “industrial hemp,” defined according to the same 0.3 per cent delta-
    9 THC concentration threshold as the 2018 Farm Bill’s definition of
    “hemp,” for agricultural and academic purposes pursuant to a state
    pilot program. See 
    7 U.S.C. § 5940
    .
    6
    directed the USDA Secretary to administer and implement
    hemp production plans, 4 see 
    id.
     §§ 1639q, 1639p.
    In August 2020, the DEA published an interim final rule
    intended to “conform[] [its] regulations” to the 2018 Farm
    Bill’s amendments to the CSA. See Implementation of the
    Agriculture Improvement Act of 2018, 
    85 Fed. Reg. 51,639
    ,
    51,639 (Aug. 21, 2020) (Interim Final Rule or IFR). The IFR
    noted that to be deemed marijuana under the CSA, “cannabis
    and cannabis-derived material must both fall within the pre-
    [2018 Farm Bill] CSA definition of marihuana”—the
    definition that excluded particular parts of the cannabis plant—
    “and contain more than 0.3 percent [delta-9]-THC on a dry
    weight basis.” 
    Id. at 51
    ,640–41. The rule accordingly limited
    the agency’s definition of THC, a Schedule I controlled
    substance, to exclude “any material, compound, mixture, or
    preparation that falls within the [2018 Farm Bill’s] definition
    of hemp set forth in 7 U.S.C. § 1639o.” Id. at 51,641; see also
    
    21 C.F.R. § 1308.11
    (d)(31)(ii). Of note here, the DEA
    specifically addressed products derived from the hemp plant,
    stating that “the definition of hemp does not automatically
    exempt any product derived from a hemp plant, regardless of
    the [delta-9]-THC content of the derivative” and “[i]n order to
    meet the definition of ‘hemp,’ and thus qualify for the
    exemption from schedule I, the derivative must not exceed the
    0.3% [delta-9]-THC limit.” 85 Fed. Reg. at 51,641. The agency
    also declared that “entities no longer require a DEA registration
    4
    The USDA has since issued a rule for the regulation of hemp
    production. See Establishment of a Domestic Hemp Production
    Program, 
    86 Fed. Reg. 5,596
     (Jan. 19, 2021). Notably, its rule
    “do[es] not cover hemp or its products beyond production,” noting
    that “DEA has issued regulations covering some of these products or
    ‘in-process materials.’” 
    Id. at 5,649
    .
    7
    or import and export permits to handle hemp extract that does
    not exceed the statutory 0.3% THC limit.” 
    Id. at 51,644
    .
    B.
    As an agricultural commodity, hemp has a wide variety of
    uses, including in the production of textiles, fabrics and paper.
    Hemp seeds are used in beverages and foods. Hemp extracts
    are used in a wide range of products like soaps, shampoo,
    lotions, bath gels and cosmetics. Hemp extracts can be
    particularly lucrative; according to the Plaintiffs, “[t]he U.S.
    wholesale market for hemp extracts currently stands at $2
    billion” and “the wholesale market for products containing
    extracts exceeds $5 billion.” Am. Compl. ¶ 29.
    This appeal focuses on the hemp-extract production
    process. As the Plaintiffs see it, the process produces
    intermediate and waste byproducts that exceed the 0.3 per cent
    delta-9 THC concentration threshold, thereby raising
    understandable confusion regarding DEA regulation even after
    the 2018 Farm Bill. To briefly summarize the production
    process: After hemp plants are determined to be below the 0.3
    per cent delta-9 THC threshold and cultivated, the milling
    process separates the hemp flowers, which are high in THC,
    from the remainder of the plant, which is comparatively low in
    THC. The milled hemp flower material is then mixed with an
    extraction solvent meant to extract the cannabinoids—
    compounds including THC and cannabidiol (CBD) found in
    the cannabis plant. The hemp flower material is discarded,
    leaving behind an oil comprised of the extracted cannabinoids
    and the extraction solvent. The oil is subjected to evaporation
    in order to isolate what the Plaintiffs call “intermediate hemp
    material” (IHM), which, at this point, contains highly
    concentrated levels of cannabinoids like THC. The Plaintiffs
    assert that “IHM itself is not added to, or used as an ingredient
    8
    in, any consumer product; rather, IHM is refined into extracts
    or isolates containing not more than 0.3% [delta-9] THC.” 
    Id. at ¶ 35
    . If the processor creates cannabinoid isolates, the
    evaporation process generates a waste output the Plaintiffs call
    “waste hemp material” (WHM), which they similarly assert “is
    not added to, or used as an ingredient in, any consumer
    product.” 
    Id. at ¶ 36
    . Because both IHM and WHM are
    produced after stripping or evaporating away parts of the hemp
    plant that are low in THC, the two byproducts have high THC
    concentrations. “As a result, IHM and WHM naturally (and
    unavoidably) exceed 0.3% [delta-9] THC,” notwithstanding
    the “harvested hemp plant contains 0.3% or less [delta-9]
    THC.” 
    Id. at ¶ 39
    .
    C.
    In September 2020, the Plaintiffs petitioned for review of
    the IFR. See Hemp Indus. Ass’n v. DEA, No. 20-1376 (D.C.
    Cir.). While the petition levies a series of challenges against the
    IFR, it does not make any explicit reference to the status of
    IHM, WHM or any particular byproduct of the hemp-extract
    production process under the CSA. See generally Pet. for
    Review, Hemp Indus. Ass’n v. DEA, No. 20-1376 (D.C. Cir.).
    Less than one month later, the Plaintiffs filed suit in district
    court. They initially sought a declaration that IHM and WHM
    are no longer subject to the CSA after the enactment of the
    2018 Farm Bill regardless of their THC concentration, see
    Compl. ¶¶ 85–102, a related declaration that the DEA lacks
    authority to regulate “any aspect of hemp production, including
    the production of IHM and WHM[,]” after the 2018 Farm Bill,
    see 
    id.
     at ¶¶ 103–110, and “an injunction enjoining the IFR and
    enjoining DEA from promulgating rules that relate to the
    production of hemp,” 
    id.
     at ¶ 111–14. While the Plaintiffs’ suit
    was pending in the district court, they requested this Court to
    9
    hold their September 2020 petition for review in abeyance
    pendente lite, which we granted. See Order, Hemp Indus. Ass’n
    v. DEA, No. 20-1376 (D.C. Cir. Oct. 21, 2021). 5
    The DEA moved to dismiss the Plaintiffs’ initial complaint
    for lack of subject matter jurisdiction on a variety of grounds,
    including that 
    21 U.S.C. § 877
     divested the district court of
    jurisdiction and that the Plaintiffs lacked standing; the
    Plaintiffs then amended their complaint. The amended
    complaint sought a judicial declaration that either the definition
    of “hemp” set forth in 7 U.S.C. § 1639o encompasses IHM and
    WHM or that the 2018 Farm Bill otherwise immunizes the
    possession and manufacture of IHM and WHM so that “the
    possession and manufacture of IHM and WHM during the
    hemp production process does not require registration under
    the CSA,” Am. Compl. ¶ 105, as well as an injunction
    “enjoining DEA from enforcing the CSA as to IHM and
    WHM,” see id. at ¶ 110. The Plaintiffs alleged that the DEA
    “publicized its view” that it possessed authority to regulate
    hemp byproducts like IHM and WHM “in multiple forums,
    including in the explanatory text of its August 2020 interim
    final rule . . . and through the public statements of [DEA] staff
    and representatives.” Id. at ¶ 3. The amended complaint
    dropped the Plaintiffs’ original request to enjoin the IFR but it
    repeatedly references and challenges the DEA’s conclusions
    contained therein. See, e.g., id. at ¶ 82 (“In defiance of
    Congress’s delegation of exclusive authority to regulate hemp
    production to USDA, DEA promulgated its own interim final
    rule . . . .”); id. at 84 (describing IFR as “DEA’s most direct
    5
    The abeyance was lifted once the district court dismissed the
    Plaintiffs’ suit. Oral argument on the petition was held on the same
    day as the instant appeal and the petition is today dismissed. See
    Hemp Indus. Ass’n v. DEA, No. 20-1376, slip op. at 5 (D.C. Cir. June
    10, 2020).
    10
    claim that IHM and WHM are illegal”); id. at ¶ 101 (quoting
    IFR in describing instant suit against DEA).
    The district court granted the DEA’s motion to dismiss for
    lack of subject matter jurisdiction, concluding that the
    Plaintiffs erroneously sought review of the IFR in district court,
    instead of this Court, in contravention of 
    21 U.S.C. § 877
    . See
    Hemp Indus. Ass’n, 539 F. Supp. 3d at 123. The district court
    acknowledged that the Plaintiffs’ amended complaint did not
    “seek a declaration that the IFR itself is invalid or an injunction
    directly enjoining its application” but it also recognized that the
    “Amended Complaint specifically identifies the IFR as
    embodying what [Plaintiffs] contend is an incorrect
    interpretation of the relevant statutes and an unlawful assertion
    [of] regulatory authority.” Id. at 129–30. Further, it held, that
    the Plaintiffs effectively “seek an injunction enjoining DEA
    from asserting that regulatory authority and a judicial
    declaration that their own, contrary interpretation is the correct
    one, and that they should be exempt from its application.” Id.
    at 129 (second and third alterations in original) (internal
    quotation marks and citation omitted); see also id. (“For relief,
    [the Plaintiffs] seek a declaration that—contrary to the IFR—
    ‘the definition of hemp as set forth in [the 2018 Farm Bill]
    includes IHM and WHM,’ or that the [2018 Farm Bill]
    ‘authorizes and/or immunizes the possession and manufacture
    of IHM and WHM’ such that the substances need not be
    registered under the CSA.” (quoting Am. Compl. ¶ 105)). The
    Plaintiffs timely appealed and we have appellate jurisdiction
    pursuant to 
    28 U.S.C. § 1291
    .
    II. Analysis
    In reviewing a district court’s dismissal of a complaint for
    lack of subject matter jurisdiction, we review the district
    court’s legal determinations de novo. See Am. Nat’l Ins., 642
    11
    F.3d at 1139; Am. Clinical Lab’y Ass’n v. Azar, 
    931 F.3d 1195
    ,
    1202–03 (D.C. Cir. 2019). As explained infra, we, like the
    district court, conclude that the Plaintiffs’ amended complaint
    impermissibly seeks review of the same issues addressed in the
    IFR—the authorization (or lack thereof) of the manufacture
    and possession of IHM and WHM—outside the review scheme
    set forth in 
    21 U.S.C. § 877
    . In addition, to the extent the
    Plaintiffs seek a declaration that the IFR does not address either
    authorization or liability regarding IHM and WHM, they have
    failed to plead a plausible injury-in-fact related to enforcement
    against their manufacture or possession of IHM and WHM.
    A.
    “Within constitutional bounds, Congress decides what
    cases the federal courts have jurisdiction to consider.” Am.
    Fed’n of Gov’t Emps., AFL-CIO v. Trump, 
    929 F.3d 748
    , 754
    (D.C. Cir. 2019) (quoting Bowles v. Russell, 
    551 U.S. 205
    , 212
    (2007)). The district court possesses jurisdiction of questions
    of federal law by statute, see 
    28 U.S.C. § 1331
    , but the
    Congress may circumscribe this authority “by establishing an
    alternative statutory scheme for administrative and judicial
    review.” Am. Fed’n of Gov’t Emps., 929 F.3d at 754. “If a
    special statutory review scheme exists, . . . ‘it is ordinarily
    supposed that Congress intended that procedure to be the
    exclusive means of obtaining judicial review in those cases to
    which it applies.’” Jarkesy v. SEC, 
    803 F.3d 9
    , 15 (D.C. Cir.
    2015) (quoting City of Rochester v. Bond, 
    603 F.2d 927
    , 931
    (D.C. Cir. 1979)); see also Telecomms. Rsch. & Action Ctr. v.
    FCC, 
    750 F.2d 70
    , 77 (D.C. Cir. 1984) (“[A] statute which
    vests jurisdiction in a particular court cuts off original
    jurisdiction in other courts in all cases covered by that
    statute.”).
    12
    The CSA provides that the DEA’s “final determinations,
    findings, and conclusions” under the CSA “shall be final and
    conclusive decisions of the matters involved, except that any
    person aggrieved by a final decision” of the DEA “may obtain
    review of the decision” in the court of appeals. 
    21 U.S.C. § 877
    .
    This Court has previously concluded that section 877 “vests
    exclusive jurisdiction in the courts of appeals over ‘[a]ll final
    determinations, findings, and conclusions’ of the DEA
    applying the CSA.” John Doe, Inc., 
    484 F.3d at 568
     (alteration
    in original) (quoting 
    21 U.S.C. § 877
    ). Thus, claims falling
    within the ambit of section 877—those challenging a final
    decision of the DEA under the CSA—are considered by the
    courts of appeals, not the district courts. The question here is
    whether the Plaintiffs’ claims challenge a final decision of the
    DEA—namely the IFR. 6 If so, section 877 deprives the district
    court of subject matter jurisdiction. See Jarkesy, 803 F.3d at
    15.
    The Plaintiffs’ principal argument on appeal is that their
    amended complaint does not seek to challenge or invalidate the
    IFR but instead seeks a declaratory judgment that the
    manufacture and possession of hemp byproducts is authorized
    by the 2018 Farm Bill or otherwise immune from the CSA’s
    registration and enforcement provisions, whether or not it is
    deemed a controlled substance by the DEA per its IFR. See
    Appellants’ Br. 30–31; see also Am. Compl. ¶ 105. The
    Plaintiffs attempt to draw a meaningful distinction between
    what the IFR purportedly does—that is, it conforms DEA’s
    regulations to the 2018 Farm Bill’s classification decision
    6
    The district court concluded that the IFR is a “final decision”
    under 
    21 U.S.C. § 877
    , see Hemp Indus. Ass’n, 539 F. Supp. 3d at
    128, and the Plaintiffs do not argue otherwise. Further, the fact that
    a rule is characterized as an “interim” rule is of no consequence. See
    Mack Trucks, Inc. v. EPA, 
    682 F.3d 87
    , 95 (D.C. Cir. 2012)
    (reviewing and vacating interim final rule).
    13
    regarding hemp and hemp-based substances—and the relief the
    Plaintiffs seek—immunization from registration requirements
    for IHM and WHM, regardless of the classification decision.
    See Appellants’ Br. 31–32. In the Plaintiffs’ view, the IFR
    “adopts no position on the question of whether the 2018 Farm
    Bill authorizes the manufacture and possession of intermediate
    and waste hemp material,” which they contend is the crux of
    their challenge, and that silence allows their suit to proceed
    notwithstanding 
    21 U.S.C. § 877
    . 
    Id. at 35
    .
    The classification/liability distinction drawn by the
    Plaintiffs has some superficial appeal. Granted, the CSA is
    intended to be a “comprehensive regime” to control the
    “legitimate and illegitimate traffic in controlled substances,”
    Raich, 
    545 U.S. at 12
    , but its individual Parts serve distinct
    purposes in achieving those ends: Part B defines a controlled
    substance, see 
    21 U.S.C. §§ 811
    –14, Part C provides regulatory
    requirements (e.g., registering, labeling and packaging, and
    recordkeeping) for those substances, see 
    id.
     §§ 821–32, and
    Parts D and E provide enforcement mechanisms and penalties
    to enforce the controls placed on controlled substances, see id.
    §§ 841–65 (Part D), 871–90 (Part E).
    The problem for the Plaintiffs is that the IFR addresses
    both classification (whether IHM and WHM are controlled)
    and authorization (what controls or immunities do or do not
    apply to IHM and WHM)—a conclusion that even the
    Plaintiffs cannot help but reach—meaning that the
    classification/authorization distinction drawn by the Plaintiffs
    does not help them evade 
    21 U.S.C. § 877
    . See Hemp Indus.
    Ass’n, 539 F. Supp. 3d at 128–30.
    Begin with the DEA’s position on hemp and hemp-derived
    substances as articulated in the IFR. The DEA adopts the view,
    as the Plaintiffs relate in their amended complaint, that “the
    14
    definition of hemp [in the 2018 Farm Bill] does not
    automatically exempt [from Schedule I] any product derived
    from a hemp plant, regardless of the [delta-9]-THC content of
    the derivative” and that “a cannabis derivative, extract, or
    product that exceeds the 0.3% [delta-9]-THC limit is a schedule
    I controlled substance, even if the plant from which it was
    derived contained 0.3% or less [delta-9]-THC on a dry weight
    basis.” 85 Fed. Reg. at 51,641; see Am. Compl. ¶ 83 (quoting
    same). Because, as the Plaintiffs assert, both IHM and WHM,
    which are “derived from” the cannabis plant, generally exceed
    this 0.3 per cent threshold, see Am. Compl. ¶ 37 (“IHM and
    WHM naturally (and avoidably) exceed 0.3% [delta 9]-
    THC.”), the DEA could reasonably view both byproducts as
    controlled substances. But the IFR also abjures regulation of
    cannabis-derived substances below the 0.3 per cent delta-9
    THC concentration threshold: “[E]ntities no longer require a
    DEA registration or import and export permits to handle hemp
    extract that does not exceed the statutory 0.3% THC limit.” 85
    Fed. Reg. at 51,644; see Am. Compl. ¶ 83 (quoting same).
    These two provisions could lead to the not unreasonable
    interpretation that notwithstanding the 2018 Farm Bill, hemp-
    derived substances exceeding the 0.3 per cent threshold—a
    group that could include IHM and WHM—are still subject to
    registration requirements and import/export controls.
    Indeed, the Plaintiffs allege that “the necessary
    implication” of the IFR’s explanatory language is “that the
    CSA’s registration requirements do continue to apply to
    entities handling any hemp extract that exceeds the 0.3%
    [delta-9]-THC limit, including IHM and WHM.” Am. Compl.
    ¶ 83 (emphases omitted); see also id. at ¶ 3 (alleging the IFR
    “publicized” the DEA’s “mistaken[]” view that it possesses
    “authority to impose criminal and/or civil liability against
    unregistered hemp processors who manufacture and/or process
    IHM and WHM”); id. at ¶ 84 (characterizing the IFR as
    15
    “DEA’s most direct claim that IHM and WHM are illegal”); id.
    at ¶¶ 100–01 (quoting the IFR as evidence of DEA’s position
    that the 2018 Farm Bill does not “authorize[] the manufacture
    of byproducts necessarily or unavoidably created during the
    production of hemp-based” substances). Thus, the Plaintiffs
    cannot avoid the conclusion that the IFR is as much about
    registration requirements and liability as it is about
    classification.
    This brings us to the Plaintiffs’ amended complaint and
    requested relief. They allege that the DEA’s “asserti[on] [of]
    authority to regulate the hemp production process” constitutes
    “an affront to Congress’s clear command that possession and
    manufacture of IHM and WHM be permitted.” Id. at ¶ 90; see
    also id. at ¶¶ 99–101; id. at ¶ 83 (“The explanatory language
    accompanying the text of the IFR, however, confirms DEA’s
    intent to regulate hemp production in defiance of Congress’s
    express mandate in the 2018 Farm Bill.”); id. at ¶ 88 (touting
    letters from senators and members of Congress asserting the
    IFR “rewrites the 2018 Farm Bill contrary to Congressional
    intent”). Accordingly, the Plaintiffs request “a judicial
    determination” that, contrary to the IFR, “the definition of
    ‘hemp’ as set forth in [7 U.S.C. § 1639o], includes IHM and
    WHM” or that the 2018 Farm Bill “authorizes and/or
    immunizes the possession and manufacture of IHM and
    WHM”—with the result of either declaration being that “the
    possession and manufacture of IHM and WHM during the
    hemp production process does not require registration under
    the CSA.” Id. at ¶ 105. The Plaintiffs also request injunctive
    relief that, again contrary to the IFR, “enjoin[s] DEA from
    enforcing the CSA as to IHM and WHM.” Id. at ¶ 110.
    Taken together, the Plaintiffs’ amended complaint, “[i]n
    substance,” seeks review of the “same issue[]” the IFR
    purportedly addresses—whether CSA controls continue to
    16
    apply to the manufacture and possession of hemp-derived
    substances like IHM and WHM—and requests the district court
    “require the [DEA] to conduct future [action] on the terms that
    [the Plaintiffs] proposed.” FCC v. ITT World Commc’ns, Inc.,
    
    466 U.S. 463
    , 468 & n.5 (1984); see also Hemp Indus. Ass’n,
    539 F. Supp. 3d at 131 (Plaintiffs “ask the Court to endorse
    their own desired statutory interpretation—which just so
    happens to be the complete opposite of the position they claim
    DEA adopted in a promulgated rule—and to enjoin the agency
    from acting any differently.”). Both the Supreme Court and this
    Court have stressed, however, that “[l]itigants may not evade”
    an exclusive review provision like 
    21 U.S.C. § 877
     “by
    requesting the District Court to enjoin action that is the
    outcome of the agency’s order.” ITT World Commc’ns, 
    466 U.S. at 468
    ; see also Heller, Ehrman, White & MacAuliffe v.
    Babbitt, 
    992 F.2d 360
    , 361, 363–64 (D.C. Cir. 1993) (“[E]ager
    litigant[s]” may not “circumvent a congressional grant of
    exclusive jurisdiction . . . by simply converting the suit into one
    for injunctive relief.”); Daniels v. Union Pac. R.R. Co., 
    530 F.3d 936
    , 942–43 (D.C. Cir. 2008) (Litigants may not
    “circumvent[] review of the [agency’s] regulations in this
    Court . . . by instead indirectly . . . seeking review of the
    regulations in district court.”).
    The Plaintiffs’ remaining arguments are unavailing. They
    first fault the district court for not “accept[ing] [their] view of
    the case at the pleadings stage”—presumably their assertion
    that they do not directly attack the IFR. Appellants’ Br. 30. A
    court is obliged to accept “as true all of the factual allegations
    contained in the complaint and draw[] all inferences in favor of
    the nonmoving party,” City of Harper Woods Emps.’ Ret. Sys.
    v. Olver, 
    589 F.3d 1292
    , 1298 (D.C. Cir. 2009); see Browning
    v. Clinton, 
    292 F.3d 235
    , 240 (D.C. Cir. 2002) (same), but there
    is no such requirement with respect to a litigant’s “view” or
    “characterization” of the complaint. In fact, “constru[ing] [a]
    17
    complaint liberally in the plaintiff’s favor” does not entail
    “accept[ing] inferences unsupported by facts or legal
    conclusions cast in the form of factual allegations.” Harper
    Woods, 589 F.3d at 1298 (citing Kowal v. MCI Commc’ns
    Corp., 
    16 F.3d 1271
    , 1276 (D.C. Cir. 1994)). Further, in the
    context of exclusive review statutes, we have cautioned against
    being lulled to sleep by “creative[] framing.” Heller, Ehrman,
    White & MacAuliffe, 
    992 F.2d at 363
    ; Daniels, 
    530 F.3d at
    942–43; accord ITT World Commc’ns, 
    466 U.S. at 468
    . We
    therefore find no basis for the Plaintiffs’ proposition that the
    district court was obligated to accept their “view” of the case.
    The Plaintiffs also assert that their action is nothing more
    than a “mirror image” of a government action brought under 
    21 U.S.C. § 882
    . See Appellants’ Br. 45–46 (quoting Menominee
    Indian Tribe of Wis. v. DEA, 
    190 F. Supp. 3d 843
    , 850 (E.D.
    Wis. 2016)). Section 882 grants “district courts of the United
    States . . . jurisdiction in proceedings” brought by the
    government “to enjoin violations of” the CSA. 
    21 U.S.C. § 882
    . But a narrow grant of jurisdiction in favor of the
    government simply underscores that the Congress “knew how
    to provide alternative forums for judicial review based on the
    nature of a[] [plaintiff’s] claim,” Elgin v. Dep’t of Treasury,
    
    567 U.S. 1
    , 13 (2012), and instead chose to require that litigants
    “proceed exclusively through” section 877 in making a
    challenge within its scope, Jarkesy, 803 F.3d at 15; cf. id. at 17
    (“Congress, though, gave the SEC the option to pursue
    violations in district court. Congress did not thereby
    necessarily      enable respondents         in      administrative
    proceedings to collaterally attack those proceedings in court.”
    (emphases in original)).
    The Plaintiffs finally spill much ink arguing that the
    district court erred in not applying Thunder Basin to determine
    whether 
    21 U.S.C. § 877
     in fact divested it of jurisdiction. See
    18
    Appellants’ Br. 43–58; see generally Thunder Basin Coal Co.
    v. Reich, 
    510 U.S. 200
     (1994). But Thunder Basin is
    unilluminating here. The “ultimate question” Thunder Basin
    asks is “whether Congress intended exclusivity when it
    established the statutory scheme” at issue. Jarkesy, 803 F.3d at
    12. Following the Supreme Court’s lead, our Court employs a
    two-part framework: “Congress intended that a litigant proceed
    exclusively through a statutory scheme . . . when (i) such intent
    is fairly discernible in the statutory scheme, and (ii) the
    litigant’s claims are of the type Congress intended to be
    reviewed within [the] statutory structure.” Am. Fed’n of Gov’t
    Emps., 929 F.3d at 754 (internal quotation marks omitted)
    (quoting Jarkesy, 803 F.3d at 15); accord Free Enter. Fund v.
    Pub. Co. Acct. Oversight Bd., 
    561 U.S. 477
    , 489–90 (2010);
    Elgin, 
    567 U.S. at 10, 15
    .
    We have already answered the first part of the Thunder
    Basin framework with respect to the exclusivity of 
    21 U.S.C. § 877
     by concluding that it “vests exclusive jurisdiction in the
    courts of appeals over ‘[a]ll final determinations, findings, and
    conclusions’ of the DEA applying the CSA.” John Doe, Inc.,
    
    484 F.3d at 568
     (emphasis added) (quoting 
    21 U.S.C. § 877
    ).
    Thus, we can definitively “discern that Congress intended the
    statutory scheme to be exclusive with respect to claims within
    its scope.” Am. Fed’n of Gov’t Emps., 929 F.3d at 755. The
    second step, whether a claim is “of the type Congress intended
    to be reviewed within [the] statutory structure,” id. at 754
    (quoting Jarkesy, 803 F.3d at 15), reduces to whether the
    Plaintiffs’ claims challenge a final agency decision subject to
    section 877. See Hemp Indus. Ass’n, 539 F. Supp. 3d at 134.
    We have already affirmed that it does.
    19
    B.
    Alternatively, the Plaintiffs strenuously argue on appeal
    that the IFR makes no “mention [of] the manufacture and
    possession of hemp byproducts.” Appellants’ Br. 35. But even
    if we accept this reframing of the Plaintiffs’ position, see supra
    p. 14–15, there we fail to find any plausible basis to support the
    requisite injury-in-fact to support the Plaintiffs’ claims. 7 We
    note that at the pleading stage, a complaint need only contain
    “sufficient factual matter, accepted as true, to state a claim [of
    standing] that is plausible on its face.” Kareem v. Haspel, 
    986 F.3d 859
    , 866 (D.C. Cir. 2021) (internal quotation marks
    omitted and alteration in original) (quoting Ashcroft v. Iqbal,
    
    566 U.S. 662
    , 678 (2009)).
    In their amended complaint, the Plaintiffs invoked the
    district court’s authority under the Declaratory Judgment Act,
    see Am. Compl. ¶ 8, which provides that “[i]n a case of actual
    controversy within its jurisdiction,” a district court may
    “declare the rights and other legal relations of any interested
    party seeking such declaration, whether or not further relief is
    or could be sought,” 
    28 U.S.C. § 2201
    (a), and order “[f]urther
    necessary or proper relief based on [the] declaratory judgment
    or decree,” 
    id.
     § 2202. “[J]ust like suits for every other type of
    remedy, declaratory-judgment actions must satisfy Article III’s
    case-or-controversy requirement.” California v. Texas, 
    141 S. Ct. 2104
    , 2115 (2021) (citing MedImmune, Inc. v. Genentech,
    7
    The district court did not reach the DEA’s argument that the
    Plaintiffs lack standing, see Hemp Indus. Ass’n, 539 F. Supp. 3d at
    135, but the DEA has raised the argument on appeal, see Appellee’s
    Br. 32–33. And, of course, we operate under the “well established”
    background principle that courts have the “independent obligation to
    assure that standing exists.” Shea v. Kerry, 
    796 F.3d 42
    , 49–50 (D.C.
    Cir. 2015) (quoting Summers v. Earth Island Inst., 
    555 U.S. 488
    , 499
    (2009)).
    20
    Inc., 
    549 U.S. 118
    , 126–27 (2007)). This includes, inter alia,
    demonstrating an injury-in-fact that is both “concrete and
    particularized” and “actual or imminent, not conjectural or
    hypothetical.” Lujan v. Defs. of Wildlife, 
    504 U.S. 555
    , 560
    (1992) (internal quotation marks and citation omitted). In other
    words, a plaintiff cannot simply rest on some abstract desire to
    know his rights or status under a statute, see, e.g., Ashcroft v.
    Mattis, 
    431 U.S. 171
    , 172 (1977); Golden v. Zwickler, 
    394 U.S. 103
    , 109 (1969), but rather needs to connect the requested
    declaration to some actual or imminent injury, see Steffel v.
    Thompson, 
    415 U.S. 452
    , 458–59 (1974).
    The Plaintiffs’ asserted injury is that the DEA’s position
    on hemp byproducts like IHM and WHM presents them with
    “the immediate dilemma of choosing between ceasing to
    process, manufacture and/or store hemp; obtaining a Schedule
    I registration from DEA; or risking criminal and/or civil
    prosecution under the CSA by DEA for conducting such
    activities.” Am. Compl. ¶ 102. Neither the Plaintiffs nor the
    DEA asserts that the agency is currently undertaking or has
    undertaken an enforcement action against the Plaintiffs’
    possession or manufacture of hemp byproducts, meaning that
    the Plaintiffs’ challenge is therefore grounded in the alleged
    threat of enforcement. Although a plaintiff requesting pre-
    enforcement review “is not required ‘to expose himself to
    liability before bringing suit to challenge the basis’ for an
    enforcement action by the government,” Matthew A. Goldstein,
    PLLC v. U.S. Dep’t of State, 
    851 F.3d 1
    , 4 (D.C. Cir. 2017)
    (quoting MedImmune, 
    549 U.S. at
    128–29); see also Susan B.
    Anthony List v. Driehaus (SBA List), 
    573 U.S. 149
    , 158 (2014)
    (“When an individual is subject to [] a threat, an actual arrest,
    prosecution, or other enforcement action is not a prerequisite
    to challenging the law.”), he must nevertheless demonstrate
    that either the threatened enforcement injury is “certainly
    impending” or there is a “substantial risk” such injury will
    21
    occur, see Attias v. Carefirst, Inc., 
    865 F.3d 620
    , 627 (D.C. Cir.
    2017) (quoting SBA List, 573 U.S. at 158); see also TransUnion
    LLC v. Ramirez, 
    141 S. Ct. 2190
    , 2210 (2021) (“[A] person
    exposed to a risk of future harm may pursue forward-looking,
    injunctive relief to prevent the harm from occurring, at least so
    long as the risk of harm is sufficiently imminent and
    substantial.”).
    Here, the Plaintiffs have failed to assert a sufficiently
    imminent or substantial risk of enforcement against their
    desired course of conduct: handling hemp byproducts, like
    IHM and WHM, that exceed the 0.3 per cent delta-9 THC
    concentration threshold set forth in the 2018 Farm Bill. If we
    accept the Plaintiffs’ preferred interpretation, the IFR answers
    only the question whether hemp byproducts are “controlled in
    the schedules after the 2018 Farm Bill,” not the separate
    question whether “the manufacture and possession of hemp
    byproducts during the hemp production process [is]
    authorized” or, conversely, prohibited absent DEA registration.
    Appellants’ Br. 32; see also 
    id. at 35
     (“The [IFR] adopts no
    position on the question of whether the 2018 Farm Bill
    authorizes the manufacture and possession of intermediate and
    waste hemp material.”). We would be hard-pressed to conclude
    that an agency rule that allegedly takes no position on the
    liability or immunity of a desired course of conduct can
    simultaneously proscribe or deny immunity for that same
    conduct. Cf. Matthew A. Goldstein, 851 F.3d at 5 (finding lack
    of credible threat of enforcement from plaintiff’s allegations of
    “vague and general descriptions of legal activities that the firm
    intends to undertake, none of which the State Department
    views as” unlawful).
    The Plaintiffs also point to several statements by DEA
    officials that purportedly highlight the view “that IHM and
    WHM are illegal,” Am. Compl. ¶ 84, and have caused the
    22
    Plaintiffs and their members to live in fear of DEA action, see
    id. at ¶ 93; see also Decl. of Rick Trojan III (Trojan Decl.) ¶ 4,
    reprinted in Appendix (App.) 098–99. For example, the
    Plaintiffs cite a statement from Chief of the DEA Office of
    Intergovernmental Affairs Sean Mitchell:
    When asked about DEA’s position regarding
    elevated levels of [delta-9]-THC during “CBD
    extraction,” Mr. Mitchell responded that DEA
    retains discretion to enforce the CSA as to hemp
    byproducts such as IHM and WHM, adding
    “you’ll never hear DEA say that we’re not going
    to enforce any federal law . . . .”
    Am. Compl. ¶ 84 (emphasis added). They also point to
    Mitchell’s statement that allegedly “equated hemp processors
    with pharmaceutical companies that ‘take[]non-controlled raw
    materials’ but are nevertheless ‘required to be [] registered with
    DEA as a controlled substance manufacturer’ because they
    ‘produce[] or manufacture[] controlled substances . . .’ ‘during
    th[e] manufacturing of that not controlled end product.’” Id. at
    ¶ 85 (alterations in original). But even if we accept these
    statements as true—as well as the Plaintiffs’ legal contention
    that the 2018 Farm Bill leaves the DEA no enforcement
    discretion with respect to IHM and WHM—they fail to evince
    any credible or imminent threat that the DEA will use its
    enforcement discretion against the Plaintiffs or any of the
    Hemp Association’s members. Mitchell’s statements are akin
    to a statement of intent to “prosecut[e] all violators of the
    statute under normal prosecutorial standards” that, absent
    allegations of “prior threats” or “characteristics indicating an
    especially high probability of enforcement,” do not constitute
    a threat of enforcement. Seegars v. Gonzales, 
    396 F.3d 1248
    ,
    1255 (D.C. Cir. 2005) (internal quotation marks and citation
    omitted); see also Aeronautical Radio, Inc. v. FCC, 
    983 F.2d 23
    275, 284 (D.C. Cir. 1993) (finding “no indication in the record
    . . . that the [agency] is likely to attempt to [enforce the
    challenged interpretation against the petitioner]” and
    concluding that the petitioner’s “alleged injury is therefore
    merely conjectural” (internal quotation marks omitted)).
    The Plaintiffs also cite a statement from “DEA spokesman
    Michael Miller” that the 2018 Farm Bill “‘exempted any
    product from a Cannabis sativa L. plant with a delta-9 THC
    content of less than 0.3% by dry weight basis.’” Am. Compl.
    ¶ 86. This is nothing more than a restatement of law that cannot
    plausibly constitute a threat of enforcement. Compare 7 U.S.C.
    § 1639o(1) (“The term ‘hemp’ means the plant Cannabis sativa
    L. and any part of that plant, including the seeds thereof and all
    derivatives, extracts, cannabinoids, isomers, acids, salts, and
    salts of isomers, whether growing or not, with a delta-9
    tetrahydrocannabinol concentration of not more than 0.3
    percent on a dry weight basis.”), with 
    21 U.S.C. § 802
    (16)(B)(i) (“The term ‘marihuana’ does not include . . .
    hemp, as defined in section 1639o of Title 7.”).
    The Plaintiffs also point to three additional sources for
    their alleged threat of enforcement, none of which provides a
    plausible basis for a threat of enforcement against the
    possession and/or manufacture of IHM and WHM. First, the
    Plaintiffs point to letters from a handful of Senators and
    members of Congress objecting to the DEA’s stance and
    asserting that the IFR “criminalizes the intermediate steps of
    hemp processing, which is wholly inconsistent with . . . the
    2018 Farm Bill.” Letter from Senators Ron Wyden and Jeffrey
    A. Merkley to Acting DEA Administrator Timothy J. Shea
    (Oct. 22, 2020), reprinted in App. 093; see also Letter from
    Members of Congress to Acting DEA Administrator Timothy
    J. Shea (Oct. 20, 2020), reprinted in App. 095–97. But these
    letters involve the DEA’s assertion of authority under the IFR
    24
    and, if anything, largely support our overarching conclusion
    that the source of the Plaintiffs’ aggrievement is the IFR.
    Second, the Plaintiffs point to instances of alleged DEA
    overreach in the marijuana and hemp industries predating the
    2018 Farm Bill. See Am. Compl. ¶¶ 40–61; Appellants’ Reply
    Br. 24–25. “‘[P]ast wrongs’ may serve as ‘evidence bearing on
    whether there is a real and immediate threat of repeated
    injury,’” N.B. ex rel. Peacock v. District of Columbia, 
    682 F.3d 77
    , 84 (D.C. Cir. 2012) (quoting City of Los Angeles v. Lyons,
    
    461 U.S. 95
    , 102 (1983)), but a plaintiff seeking prospective
    declaratory and injunctive relief may not rest on past injuries
    alone, see Dearth v. Holder, 
    641 F.3d 499
    , 502 (D.C. Cir.
    2011); Arpaio v. Obama, 
    797 F.3d 11
    , 19 (D.C. Cir. 2015).
    Further, the pre-2018 Farm Bill conduct cited by the Plaintiffs
    involves the agency’s treatment of THC naturally occurring in
    the cannabis plant, see Am. Compl. ¶¶ 44–49, and hemp pilot
    programs administered by states for academic and research
    purposes, see 
    id.
     at ¶¶ 50–59, meaning it has nothing to do with
    IHM, WHM or any other byproduct of the hemp-extract
    production process and no “bearing on whether there is a real
    and immediate threat of repeated injury” to the Plaintiffs’
    production of hemp extracts after the 2018 Farm Bill. N.B. ex
    rel. Peacock, 682 F.3d at 84 (quoting Lyons, 
    461 U.S. at 102
    ).
    Third, and finally, the Plaintiffs assert that the DEA’s
    statements and history of enforcement conduct have caused
    hemp manufacturers to curtail their operations and reduced
    their access to financial services. See Am. Compl. ¶¶ 91–95;
    see also Trojan Decl. at ¶¶ 4–7. But we have previously held
    that “broad-based market effects stemming from regulatory
    uncertainty are quintessentially conjectural, and it is difficult to
    imagine a[n] [agency] action that                   would not
    confer standing under this theory.” New England Power
    Generators Ass’n, Inc. v. FERC, 
    707 F.3d 364
    , 369 (D.C. Cir.
    25
    2013) (rejecting petitioner’s argument that “chilling effect” on
    petitioner’s ability to attract capital investments conferred
    standing) (citing Shell Oil Co. v. FERC, 
    47 F.3d 1186
    , 1202
    (D.C. Cir. 1995)); cf. Clapper v. Amnesty Int’l USA, 
    568 U.S. 398
    , 418 (2013) (“[A]llegations of subjective chill are not an
    adequate substitute for a claim of specific present objective
    harm or a threat of specific harm.” (internal quotation marks
    omitted) (quoting Laird v. Tatum, 
    408 U.S. 1
    , 13–14 (1972))).
    In sum, if we were to view the IFR as agnostic regarding
    the manufacture and/or possession of IHM and WHM, the
    Plaintiffs fail to plausibly allege an enforcement action that is
    “certainly impending” nor a “substantial risk” that such action
    will occur, thereby failing to assert a sufficient injury-in-fact to
    survive dismissal. See Attias, 865 F.3d at 627 (quoting SBA
    List, 573 U.S. at 158). This accords with our overarching
    conclusion that the IFR is the target of the Plaintiffs’ challenge.
    For the foregoing reasons, the district court’s judgment is
    affirmed.
    So ordered.
    

Document Info

Docket Number: 21-5111

Filed Date: 6/10/2022

Precedential Status: Precedential

Modified Date: 6/10/2022

Authorities (29)

Monson v. Drug Enforcement Administration , 589 F.3d 952 ( 2009 )

Thomas, Oscar v. Principi, Anthony , 394 F.3d 970 ( 2005 )

Dolly Kyle Browning and Direct Outstanding Creations ... , 292 F.3d 235 ( 2002 )

City of Harper Woods Employees' Retirement System Ex Rel. ... , 589 F.3d 1292 ( 2009 )

Heller, Ehrman, White & MacAuliffe v. Bruce Babbitt, ... , 992 F.2d 360 ( 1993 )

Seegars, Sandra v. Ashcroft, John , 396 F.3d 1248 ( 2005 )

John Doe, Inc. v. Drug Enforcement Administration , 484 F.3d 561 ( 2007 )

Dearth v. Holder , 641 F.3d 499 ( 2011 )

The National Organization for the Reform of Marijuana Laws (... , 559 F.2d 735 ( 1977 )

American Nat. Ins. Co. v. FDIC , 642 F.3d 1137 ( 2011 )

Daniels v. Union Pacific Railroad , 530 F.3d 936 ( 2008 )

cadc-79-71-city-of-rochester-a-municipal-corporation-in-the-state-of-new , 603 F.2d 927 ( 1979 )

shell-oil-company-shell-pipe-line-corporation-v-federal-energy-regulatory , 47 F.3d 1186 ( 1995 )

Charles Kowal v. MCI Communications Corporation , 16 F.3d 1271 ( 1994 )

Ashcroft v. Mattis , 97 S. Ct. 1739 ( 1977 )

telecommunications-research-and-action-center-v-federal-communications , 750 F.2d 70 ( 1984 )

Golden v. Zwickler , 89 S. Ct. 956 ( 1969 )

Steffel v. Thompson , 94 S. Ct. 1209 ( 1974 )

Laird v. Tatum , 92 S. Ct. 2318 ( 1972 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

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