|||U.S. Court of Appeals, Ninth Circuit
|||Nos. 98-16950, 98-17044, 98-17137
|||190 F.3d 1109, 1999.C09.0042607 <http://www.versuslaw.com>,
99 Cal. Daily Op. Serv. 7556
|||September 13, 1999
|||UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
OAKLAND CANNABIS BUYERS' COOPERATIVE; JEFFREY JONES, DEFENDANT-APPELLANT.
|||D.C. No. CV-98-00088-CRB
|||Counsel Robert A. Raich, Oakland, California; Gerald F. Uelmen, Santa
Clara University School of Law, Santa Clara, California; and Annette P.
Carnegie, Morrison & Foerster, San Francisco, California, for the appellants-defendants.
Mark B. Stern, Assistant Attorney General, United States Department of Justice,
Washington, D.C., for the plaintiff appellee.
|||Before: Mary M. Schroeder, Stephen Reinhardt, and Barry G. Silverman,
|||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
|||Per Curiam Opinion
|||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' Cooperative
and Jeffrey Jones (collectively "OCBC"), likely violates 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 justified by a medical necessity. Id.
at 1102. OCBC did not appeal the district court's order enjoining the distribution
of marijuana 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
|||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
Substances Act is intended to protect state law enforcement officials when
they engage in undercover drug operations, and these defendants do not engage
in such activities.
|||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 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 continuance 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).
|||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
injunction, the broader purpose was to resolve the case in defendants' 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
|||Nor did the district court's denial of the motion to dismiss 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 37 (9th Cir. 1995); In re Fugazy Express, Inc. , 982 F.2d 769, 777 (2d
|||OCBC also argues that the denial of the motion to dismiss 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
|||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 contempt 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
|||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.
|||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 district 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 witness
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.
|||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 prevents 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 injunction. Had
OCBC chosen to remain in contempt to this day, the appeal would not be moot
because this court could have provided a remedy.
|||OCBC argues that even if the denial of the motion to dismiss and the modification
order are not in and of themselves 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 application 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 distribution 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 treatment of the patient's medical condition
or cannabis will alleviate 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
|||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).
|||The denial of a motion to modify an injunction is independently appealable
under S 1292(a)(1) as one of the appealable interlocutory orders denominated
in that section. Therefore, we have jurisdiction to review the order denying
OCBC's motion for modification.
|||The district court summarily denied OCBC's motion, saying that it lacked
the power to make the requested modification 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.
|||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 prosecuting them afterward, the government invited an inquiry
into whether the injunction should also anticipate likely exceptions. This
gives rise to a drafting issue -- crafting an injunction that is broad enough
to prohibit illegal conduct, but narrow enough to exclude conduct that likely
would be legally privileged or justified.
|||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 Congress has clearly and explicitly demonstrated
that it has balanced the equities and mandated an injunction. 851 F.2d 1152,
1156 (9th Cir. 1988). Here, although the government may be entitled to its
requested injunction, there is no evidence 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 indication
that the "underlying substantive policy" of the Act mandates a
limitation on the district court's equitable powers. Id. at 1156.
|||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 consider 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 affecting the public interest. Because the district
court believed that it had no discretion to issue an injunction that was
more limited in scope than the Controlled Substances Act itself, it summarily
denied the requested modification without weighing or considering the public
|||We have no doubt that the district court could have modified its injunction,
had it determined to do so in the exercise of its equitable discretion.
The evidence in the record is sufficient to justify the requested modification.
OCBC submitted the declarations of many seriously ill individuals and their
doctors who, despite their very real fears of criminal prosecution, came
forward and attested to the need for cannabis in order to treat the debilitating
and life threatening conditions.
|||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 conditions or their symptoms; who will
suffer serious harm if they are denied cannabis; and for whom there is no
legal alternative 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 intolerable side effects.
|||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 district court, accepting the government's argument that it lacked
the authority to grant the requested modification, 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 injunction 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 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 consistent with this opinion.
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