>Sender: >To: >X-Original-Message-ID: <13b801befe48$d2d3d130$9acf69cf@pacbell.net> >From: "Peter McWilliams" >Subject: The complete 9th Circuit Ruling >Date: Mon, 13 Sep 1999 17:33:52 -0700 >X-Mozilla-Status: 8001 >X-Mozilla-Status2: 00000000 > > >Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit > >---------------------------------------------------------------------------- >---- > >Case Name: >USA V CANNABIS 9817044 9817137 > >Case Number: Date Filed: >98-16950 09/13/99 > >---------------------------------------------------------------------------- >---- > > >FOR PUBLICATION > >UNITED STATES COURT OF APPEALS > >FOR THE NINTH CIRCUIT > >UNITED STATES OF AMERICA, Nos. 98-16950 >Plaintiff-Appellee, 98-17044 > 98-17137 >v. > D.C. No. >OAKLAND CANNABIS BUYERS' > CV-98-00088-CRB >COOPERATIVE; JEFFREY JONES, >Defendant-Appellant. OPINION > >Appeal from the United States District Court >for the Northern California >Charles R. Breyer, District Judge, Presiding > >Argued and Submitted >April 13, 1999--San Francisco, California > >Filed September 13, 1999 > >Before: Mary M. Schroeder, Stephen Reinhardt, and >Barry G. Silverman, Circuit Judges. > >Per Curiam Opinion > >_________________________________________________________________ > > > >COUNSEL > >Robert A. Raich, Oakland, California; Gerald F. Uelmen, >Santa Clara University School of Law, Santa Clara, Califor- >nia; and Annette P. Carnegie, Morrison & Foerster, San Fran- >cisco, California, for the appellants-defendants. > >Mark B. Stern, Assistant Attorney General, United States >Department of Justice, Washington, D.C., for the plaintiff- >appellee. > >_________________________________________________________________ > >OPINION > >PER CURIAM: > >This interlocutory appeal involves a preliminary injunction >entered at the United States' request, to stop the distribution >of cannabis in the wake of California's initiative supporting >the medical use of marijuana. The district court held that the >distribution of marijuana by certain cannabis clubs and their >agents, including appellant, Oakland Cannabis Buyers' Coop- >erative and Jeffrey Jones (collectively "OCBC"), likely vio- >lates the Comprehensive Drug Abuse Prevention and Control >Act of 1970 (the "Controlled Substances Act"), 21 U.S.C. >S 841(a)(1). See United States v. Cannabis Cultivators Club, >5 F. Supp. 2d 1086, 1105 (N.D. Cal. 1998). The district court >also indicated that it would consider in subsequent contempt >proceedings a defense that a particular distribution was justi- > > 11427 > > >fied by a medical necessity. Id. at 1102. OCBC did not appeal >the district court's order enjoining the distribution of mari- >juana by cannabis clubs. Instead, OCBC seeks to appeal three >subsequent orders: (a) an order denying OCBC's motion to >dismiss the complaint on the ground that an Oakland City >ordinance makes it immune from liability under 21 U.S.C. >S 885(d); (b) an order subsequently purged and vacated that >found OCBC in contempt of the injunction; and (c) an order >denying OCBC's motion to modify the injunction to permit >cannabis distribution to persons having a doctor's certificate >that marijuana is a medical necessity for them. > >We lack jurisdiction over the appeal from the denial of the >motion to dismiss and from the contempt order that has been >purged. We have jurisdiction over the appeal from the denial >of the motion to modify. We do not vacate the injunction, but >remand for the district court to consider modifying the order. > >Denial of the Motion to Dismiss > >The district court denied the defendants' motion to dismiss >that was grounded in the Oakland City Council's attempt to >immunize OCBC under the Controlled Substances Act. The >district court held that section 885(d) of the Controlled Sub- >stances Act is intended to protect state law enforcement offi- >cials when they engage in undercover drug operations, and >these defendants do not engage in such activities. > >[1] We lack jurisdiction of the appeal because the denial of >a motion to dismiss is generally not appealable. See 28 U.S.C. >SS 1291 & 1292 (granting appellate jurisdiction over final >orders and limited interlocutory orders). The denial of the >motion to dismiss is not one of the interlocutory orders that >can be appealed under S 1292, and it is not a final judgment >under S 1291. See, e.g., Credit Suisse v. United States Dist. >Ct., 130 F.3d 1342, 1345-46 (9th Cir. 1997). > >OCBC contends we have jurisdiction under 28 U.S.C. >S 1292(a)(1) authorizing, inter alia, appellate jurisdiction over > > 11428 > > >an interlocutory order "continuing . . . or refusing to dissolve >or modify injunctions." OCBC asks us to treat the district >court's denial of the motion to dismiss as, in effect, a continu- >ance of the injunction and a refusal to dissolve it. OCBC >relies upon Jung Hyun Sook v. Great Pacific Shipping Co., >632 F.2d 100, 102 n.4 (9th Cir. 1980). > >[2] The motion to dismiss in Jung Hyun Sook, however, >was not a motion to dismiss the action in its entirety, but a >motion intended specifically to dissolve an injunction. There >the district court had enjoined the further prosecution of a >Jones Act suit pending the determination of a petition to limit >liability. Id. at 102. The district court's denial of the motion >to dismiss the limitation of liability petition was appealable >because its denial continued in effect the injunction against >further prosecution of the Jones Act suit. The purpose of the >motion to dismiss in that case was not to decide the merits of >the litigation, but only to dissolve the injunction. See 16 >Wright & Miller, Federal Practice and Procedure , S 3924.2, >at 198-99 n.6 (2d ed. 1996). The motion to dismiss in this >case was intended to resolve the entire dispute on the merits. >While one effect of granting OCBC's motion to dismiss in >this case would have been to dissolve the preliminary injunc- >tion, the broader purpose was to resolve the case in defen- >dants' favor. The general rule barring appeals from the denial >of motions to dismiss, therefore, must apply. See Credit >Suisse, 130 F.3d at 1345-46 ("The district court's denial of >[defendants'] motion to dismiss is not a `final decision' within >the meaning of 28 U.S.C. S 1291, and it is therefore not >immediately reviewable."). > >[3] Nor did the district court's denial of the motion to dis- >miss constitute an order "continuing" the injunction within the >meaning of 28 U.S.C. S 1292(a)(1). An order that "continues" >an injunction under that statute is an order that extends the >duration of the injunction that would otherwise have dissolved >by its own terms. See 16 Wright & Miller, supra, at 196; see >also Public Serv. Co. of Colorado v. Batt, 67 F.3d 234, 236- > > 11429 > > >37 (9th Cir. 1995); In re Fugazy Express, Inc. , 982 F.2d 769, >777 (2d Cir. 1992). > >[4] OCBC also argues that the denial of the motion to dis- >miss is appealable as a "collateral order" under the theory of >the Supreme Court's decision in Mitchell v. Forsyth, 472 U.S. >511 (1985). Mitchell permits appeal from orders denying >immunity from suit to government officials on damage claims >for violations of federal rights. Such orders are immediately >reviewable because the immunity at stake is not merely an >immunity from liability but an "immunity from suit" that is >effectively lost if a case goes to trial. See id. at 526. Section >885(d) is not such an immunity from suit, but is on its face >simply an immunity from liability. It provides that "no civil >or criminal liability will be imposed" upon law enforcement >officers who engage in drug activity as part of their duties. 21 >U.S.C. S 885(d). Thus, OCBC can obtain effective review of >its liability (or immunity) under the Controlled Substances >Act after the district court has rendered a final judgment. > >[5] In addition, the order being appealed is not a "collateral >order" involving an important issue separate from the merits >of the lawsuit. See Cohen v. Beneficial Indus. Loan Corp., >337 U.S. 541, 546 (1949). The merits of the government's suit >depend squarely upon whether or not OCBC is immune from >liability under S 885(d). > >The Contempt Order > >OCBC appeals the district court's order finding it in con- >tempt and modifying the preliminary injunction so as to >empower the U.S. Marshal to seize OCBC's offices. The >court neither fined nor jailed members of OCBC as a result >of the contempt. The district court subsequently vacated this >modification to the injunction on October 30, 1998 after >OCBC told the court that it would comply with the injunction. >Consequently, OCBC was permitted to re-enter its offices. > > 11430 > > >[6] The government argues that this appeal is moot because >the modification order was vacated and the contempt purged. >"A long line of precedent holds that once a civil contempt >order is purged, no live case or controversy remains for >adjudication." Thomassen v. United States, 835 F.2d 727, 731 >(9th Cir. 1987); accord In re Campbell, 628 F.2d 1260, 1261 >(9th Cir. 1980). However, a party asserting that an issue is >moot must demonstrate that there is no reasonable expectation >that the violation will recur. See County of Los Angeles v. >Davis, 440 U.S. 625, 631 (1979); Campbell , 628 F.2d at 1261. > >[7] This court has held that a purged contempt order is >moot unless there is "near certainty" that the violation will >recur. Campbell, 628 F.2d at 1262. That is not the case here. >In its reply brief, OCBC reiterates that it has promised the dis- >trict court that it will comply with the injunction. The only >way for the violation to recur is if OCBC breaks its promise. >Clearly, it is not a "near certainty" that OCBC will do so. >Moreover, although the purged contempt order at issue in >Campbell was not moot, the court explicitly limited its result >to the facts of that case: "We emphasize that were it not for >the statement of the grand jury foreman [informing the wit- >ness that he would be required to testify again in the future], >we would be inclined to find that the purging of the contempt >orders mooted the present appeals." Id. at 1261. > >[8] OCBC also contends that the appeal of the contempt >order is not moot because it is "capable of repetition, yet >evading review." An issue may evade review because of an >inherent limit in the duration of a challenged action that pre- >vents full litigation before it ends. See Phoenix Newspapers, >Inc. v. United States Dist. Ct., 156 F.3d 940, 945 (9th Cir. >1998). However, nothing inherently limited the duration of >OCBC's contempt other than its own decision to purge. The >appeal is now moot because OCBC voluntarily purged the >contempt by declaring that it would comply with the injunc- >tion. Had OCBC chosen to remain in contempt to this day, the > > 11431 > > >appeal would not be moot because this court could have pro- >vided a remedy. > >[9] OCBC argues that even if the denial of the motion to >dismiss and the modification order are not in and of them- >selves appealable, the court should assert pendent appellate >jurisdiction because they are "inextricably intertwined" with >the denial of the motion to modify the injunction, which is >appealable. See Swint v. Chambers County Comm'n , 514 U.S. >35, 51 (1995). We have held that the "inextricably >intertwined" doctrine should be narrowly construed; more is >required than that separate issues rest on common facts. See >California v. Campbell, 138 F.3d 772, 778 (9th Cir.), cert. >denied, 119 S. Ct. 64 (1998). The legal theories on which the >motion to dismiss, the contempt order, and the motion to >modify are independent of each other. Each required applica- >tion of different legal principles. They are not therefore so >"intertwined" as to necessitate simultaneous review. > >Denial of the Motion to Modify > >OCBC contends that the district court abused its discretion >by refusing to modify its injunction to permit cannabis distri- >bution to patients for whom it is a medical necessity. A few >days after the district court issued its contempt citation >instructing the Marshals to padlock its premises, OCBC asked >the district judge to modify the injunction to allow continuing >cannabis distribution to patients whose physicians certify that >(1) the patient suffers from a serious medical condition; (2) if >the patient does not have access to cannabis, the patient will >suffer imminent harm; (3) cannabis is necessary for the treat- >ment of the patient's medical condition or cannabis will alle- >viate the medical condition or symptoms associated with it; >(4) there is no legal alternative to cannabis for the effective >treatment of the patient's medical condition because the >patient has tried other legal alternatives to cannabis and has >found them ineffective in treating his or her condition or has >found that such alternatives result in intolerable side effects. > > 11432 > > >These factors were modeled on this court's recognition of a >necessity defense to violations of federal law in United States >v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989). > >[10] The denial of a motion to modify an injunction is inde- >pendently appealable under S 1292(a)(1) as one of the appeal- >able interlocutory orders denominated in that section. >Therefore, we have jurisdiction to review the order denying >OCBC's motion for modification. > >[11] The district court summarily denied OCBC's motion, >saying that it lacked the power to make the requested modifi- >cation because "its equitable powers do not permit it to ignore >federal law." In doing so, the district court misapprehended >the issue. The court was not being asked to ignore the law. It >was being asked to take into account a legally cognizable >defense that likely would pertain in the circumstances. > >[12] The government did not need to get an injunction to >enforce the federal marijuana laws. If it wanted to, it could >have proceeded in the usual way, by arresting and prosecuting >those it believed had committed a crime. Had the government >proceeded in that fashion, the defendants would have been >able to litigate their necessity defense under Aguilar in due >course. However, since the government chose to deal with >potential violations on an anticipatory basis instead of prose- >cuting them afterward, the government invited an inquiry into >whether the injunction should also anticipate likely excep- >tions. This gives rise to a drafting issue -- crafting an injunc- >tion that is broad enough to prohibit illegal conduct, but >narrow enough to exclude conduct that likely would be >legally privileged or justified. > >[13] In Northern Cheyenne Tribe v. Hodel, we held that >courts retain broad equitable discretion when it comes to >injunctions against violations of federal statutes unless Con- >gress has clearly and explicitly demonstrated that it has bal- >anced the equities and mandated an injunction. 851 F.2d > > 11433 > > >1152, 1156 (9th Cir. 1988). Here, although the government >may be entitled to its requested injunction, there is no evi- >dence that Congress intended to divest the district court of its >broad equitable discretion to formulate appropriate relief >when and if injunctions are sought. Further, there is no indica- >tion that the "underlying substantive policy" of the Act man- >dates a limitation on the district court's equitable powers. Id. >at 1156. > >[14] The district court erred in another respect as well. In >deciding whether to issue an injunction in which the public >interest would be affected, or whether to modify such an >injunction once issued, a district court must expressly con- >sider the public interest on the record. The failure to do so >constitutes an abuse of discretion. Northern Cheyenne Tribe, >851 F.2d at 1156; American Motorcycle Association v. Watt, >714 F.2d 962, 965 (9th Cir. 1983); Carribean Marine Serv. >Co. v. Baldridge, 844 F.2d 668, 678 (9th Cir. 1988). OCBC >has identified a strong public interest in the availability of a >doctor-prescribed treatment that would help ameliorate the >condition and relieve the pain and suffering of a large group >of persons with serious or fatal illnesses. Indeed, the City of >Oakland has declared a public health emergency in response >to the district court's refusal to grant the modification under >appeal here. Materials submitted in support of OCBC's >motion to modify the injunction show that the proposed >amendment to the injunction clearly related to a matter affect- >ing the public interest. Because the district court believed that >it had no discretion to issue an injunction that was more lim- >ited in scope than the Controlled Substances Act itself, it sum- >marily denied the requested modification without weighing or >considering the public interest. > >[15] We have no doubt that the district court could have >modified its injunction, had it determined to do so in the exer- >cise of its equitable discretion. The evidence in the record is >sufficient to justify the requested modification. OCBC sub- >mitted the declarations of many seriously ill individuals and > > 11434 > > >their doctors who, despite their very real fears of criminal >prosecution, came forward and attested to the need for canna- >bis in order to treat the debilitating and life threatening condi- >tions. > >In short, OCBC presented evidence that there is a class of >people with serious medical conditions for whom the use of >cannabis is necessary in order to treat or alleviate those condi- >tions or their symptoms; who will suffer serious harm if they >are denied cannabis; and for whom there is no legal alterna- >tive to cannabis for the effective treatment of their medical >conditions because they have tried other alternatives and have >found that they are ineffective, or that they result in intolera- >ble side effects. > >[16] The government, by contrast, has yet to identify any >interest it may have in blocking the distribution of cannabis >to those with medical needs, relying exclusively on its general >interest in enforcing its statutes. It has offered no evidence to >rebut OCBC's evidence that cannabis is the only effective >treatment for a large group of seriously ill individuals, and it >confirmed at oral argument that it sees no need to offer any. >It simply rests on the erroneous argument that the district >judge was compelled as a matter of law to issue an injunction >that is coextensive with the facial scope of the statute. > >[17] The district court, accepting the government's argu- >ment that it lacked the authority to grant the requested modifi- >cation, failed to undertake the required analysis and >summarily denied OCBC's request. Accordingly, we reverse >the order denying the modification and remand. On remand, >the district court is instructed to reconsider the appellants' >request for a modification that would exempt from the injunc- >tion distribution to seriously ill individuals who need cannabis >for medical purposes. In particular, the district court is >instructed to consider, in light of our decision in United States >v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989), the criteria for > > 11435 > > >a medical necessity exemption, and, should it modify the >injunction, to set forth those criteria in the modification order. > >The panel will retain jurisdiction over any further appeals >in this case. > >The case is REMANDED for further proceedings consis- >tent with this opinion. > > 11436 > > > > > >================================================================ > >This message is sent to you because you are subscribed to > the mailing list . >To unsubscribe, E-mail to: