Case 8:12-cv AG-MLG Document 13 Filed 03/05/12 Page 1 of 21 Page ID #:160 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

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1 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #:0 0 TONY WEST Assistant Attorney General ANDRÉ BIROTTE JR. United States Attorney ARTHUR R. GOLDBERG Assistant Director, Federal Programs Branch KATHRYN L. WYER (Utah Bar #) U.S. Department of Justice, Civil Division 0 Massachusetts Avenue, N.W. Washington, DC 00 Tel. (0) -/Fax (0) -0 kathryn.wyer@usdoj.gov Attorneys for the United States MARLA JAMES; KATHERINE ALDRICH; and VICTORIA PAPPAS, v. Plaintiffs, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA; CITY OF COSTA MESA, CALIFORNIA; CITY OF LAKE FOREST, CALIFORNIA; and ERIC HOLDER, in his capacity as Attorney General of the United States, Defendants. CASE NO. :cv0 AG (MLGx) FEDERAL DEFENDANTS OPPOSITION TO PLAINTIFF MARLA JAMES EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION Federal defendants file this memorandum without waiving proper service upon the Attorney General pursuant to Fed. R. Civ. P., noting that proper service is not evidenced by the Proofs of Service filed thus far by Plaintiffs, and has not been possible to verify otherwise as of the time of this filing. Case No. :cv0 AG (MLGx)

2 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii INTRODUCTION... BACKGROUND.... Federal Law Prohibiting the Production and Distribution of Marijuana. California s Compassionate Use Act of.... Factual and Procedural History... STANDARD OF REVIEW... ARGUMENT... I. JAMES IS UNLIKELY TO SUCCEED ON THE MERITS OF HER EQUAL PROTECTION AND DUE PROCESS CLAIMS... A. James Equal Protection Claim Is Meritless Because Its Factual Premise that the CSA No Longer Applies in the District of Columbia Is Incorrect... B. James Procedural Due Process Claim Is Meritless... C. James Cannot Succeed in an ADA Claim When No Such Claim Appears in the Complaint... II. PLAINTIFFS ARE NOT ENTITLED TO A PI... CONCLUSION... Case No. :cv0 AG (MLGx) ii

3 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 CASES TABLE OF AUTHORITIES Page Abigail Alliance for Better Access to Dev. Drugs v. von Eschenbach, F.d (D.C. Cir. 00) (en banc)... Alltrade, Inc. v. Uniweld Products, Inc., F.d (th Cir. )... Alternative Cmty. Health Care Coop., et al. v. Holder, et al., No. -0, 0 WL 00 (S.D. Cal. Nov., 0) [ Alternative Cmty. I ]... Alternative Cmty. Health Care Coop., et al. v. Holder, et al., No. -0, 0 WL (S.D. Cal. Dec., 0) [ Alternative Cmty. II ]... Assoc d Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity, 0 F.d 0 (th Cir. )... Bowers v. Whitman, F.d (th Cir. 0)..., Carnohan v. United States, F.d 0 (th Cir. )... DISH Network Corp. v. FCC, F.d (th Cir. 0)... - Earth Island Inst. v. Carlton, F.d (th Cir. 0)... Golden Gate Rest. Ass n v. City & County of San Francisco, F.d (th Cir. 00)... Goldie s Bookstore v. Superior Court, F.d (th Cir. )... Gonzales v. Raich ( Raich I ), U.S. (00)...,,,, Heckler v. Cmty. Health Servs., Inc., U.S. ()... James, et al. v. City of Costa Mesa, et al. ( James I ), No. :cv0 AG (MLGx), 0 WL (C.D. Cal. Apr. 0, 0)..., Kahawaiolaa v. Norton, F.d (th Cir. 00)... - Case No. :cv0 AG (MLGx) iii

4 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 Lone Star Sec. & Video, Inc. v. City of Los Angeles, F.d (th Cir. 00)... Marijuana Policy Project v. United States, 0 F.d (D.C. Cir. 00)... Marin Alliance for Medical Marijuana, et al. v. Holder, et al., No. C -0, 0 WL 0 (N.D. Cal. Nov., 0)...,, Montana Caregivers Ass n, et al. v. United States, et al., No. CV --M-DWM, 0 WL (D. Mont. Jan. 0, 0)... Munaf v. Geren, U.S. (00)... Raich v. Gonzales ( Raich II ), 00 F.d 0 (th Cir. 00)...,, Reyn's Pasta Bella, LLC v. Visa USA, Inc., F.d (th Cir. 00)... Sacramento Nonprofit Collective et al. v. Holder, et al., No. -0, 0 WL 0 (E.D. Cal. Feb., 0)..., Sibley v. Obama, F. Supp. d 0 (D.D.C. 0)... Trainor v. Hernandez, U.S. ()... Turner v. Dist. of Columbia Bd. of Elections & Ethics, F. Supp. d (D.D.C. )... United States v. Oakland Cannabis Buyers Co-op., U.S. (00)...,, United States v. Sumler, F.d, (D.C. Cir. )... Winter v. NRDC, U.S. (00)... STATUTES Controlled Substances Act ( CSA ), as amended, U.S.C. 0 et seq...passim U.S.C.... iv Case No. :cv0 AG (MLGx)

5 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 U.S.C.... U.S.C.... U.S.C.... U.S.C.... U.S.C.... Cal. Health & Safety Code Ann. -,... Cal. Health & Safety Code Ann..... Cal. Health & Safety Code Ann..,.... Cal. Health & Safety Code Ann LEGISLATIVE MATERIALS H. Rpt ADMINISTRATIVE MATERIALS DEA, Denial of Petition to Initiate Proceedings to Reschedule Marijuana, Fed. Reg. 0 (July, 0), petition for review filed sub nom Americans for Safe Access, et al., v. DEA, No. - (D.C. Cir. filed July, 0)... Case No. :cv0 AG (MLGx) v

6 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 INTRODUCTION Plaintiffs, three individuals who claim to be members of unidentified marijuana dispensaries in the Cities of Costa Mesa and Lake Forest, brought this suit in an effort to permanently immunize those dispensaries from federal drug enforcement actions, allowing them to continue manufacturing and distributing marijuana, ostensibly for medical purposes, notwithstanding the fact that such activities violate the Controlled Substances Act ( CSA ). One plaintiff, Marla James ( James ), also seeks a preliminary injunction ( PI ) against the United States, before the merits of the case are adjudicated, on the basis that she would suffer irreparable harm unless the United States is immediately enjoined from acting against Costa Mesa dispensaries, even though she acknowledges that the dispensaries where she obtained marijuana have already shut down. Three district judges in California, including a member of this Court, have already denied similar preliminary relief when sought by dispensaries themselves, and two judges in this Circuit have recently dismissed such dispensaries claims. Marin Alliance for Med. Marijuana, et al. v. Holder, et al., No. C -0, 0 WL 0 (N.D. Cal. Nov., 0); Conejo Wellness Ctr., et al. v. Holder, et al., No. -00 (C.D. Cal. Nov., 0); Alternative Cmty. Health Care Coop., et al. v. Holder, et al., No. -0, 0 WL 00 (S.D. Cal. Nov., 0) (all denying TROs); id., 0 WL (S.D. Cal. Dec., 0) (denying PI). In Conejo, Judge Gee denied the TRO on the ground that no plaintiff in that case had received any specific threat of enforcement from the U.S. Attorney s Office. Conejo, Order of Nov., 0. Here, James similarly does not allege that she has been threatened with enforcement action. Rather, her claim of irreparable harm is based on her alleged inability to access marijuana at dispensaries that have already voluntarily closed after receiving notifications that they appeared to be in violation of federal law. In any event, as discussed below, James is not entitled to a PI because she cannot establish a likelihood of success on the merits. Sacramento Nonprofit Collective et al. v. Holder, et al., No. -0, 0 WL 0 (E.D. Cal. Feb., 0); Montana Caregivers Ass n, et al. v. United States, et al., No. CV --M-DWM, 0 WL (D. Mont. Jan. 0, 0). Case No. :cv0 AG (MLGx)

7 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 As those courts recognized, Supreme Court and Ninth Circuit precedent forecloses almost any conceivable argument that could justify restraining the government s ability to enforce federal law in this context. The Supreme Court has held that, given the CSA s unequivocal language, marijuana has no currently accepted medical use. United States v. Oakland Cannabis Buyers Co-op., U.S., (00). The Court has also held that Congress s authority under the Commerce Clause empowers it to prohibit marijuana distribution and possession, even if the prohibited activities are not also illegal under state law. Gonzales v. Raich ( Raich I ), U.S. (00). And the Ninth Circuit has held that violators of the CSA are not shielded by the Tenth Amendment, nor do they have a fundamental right to distribute, possess, or use marijuana for claimed medicinal or other purposes. Raich v. Gonzales ( Raich II ), 00 F.d 0 (th Cir. 00). In an effort to escape from this established precedent, James simply ignores it and instead concocts a set of claims that, to the extent they are comprehensible at all, cannot possibly prevail. James essentially advances two claims that are set forth in Plaintiffs Complaint. First, she attempts to raise an equal protection claim based on the theory that Congress has decided that marijuana distribution for medical purposes is now legal in the District of Columbia. Though her reasoning is difficult to follow, she attempts to link such a theory to the notion that the United States has deprived California residents of a right to vote in favor of medical marijuana legislation similar to the right District of Columbia voters have ostensibly exercised. Second, James attempts to assert that the cease-and-desist letters sent to Costa Mesa dispensaries somehow violated their procedural due process rights. Neither claim has any merit whatsoever. In regard to James equal protection claim, she simply has the facts wrong. The CSA continues to prohibit marijuana use, possession, and distribution in the District of Columbia, just as it does in California and every other state, regardless of whether the state or local government has regulated marijuana use for medical Case No. :cv0 AG (MLGx)

8 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 purposes differently under its own legislative scheme. James fails to identify any differential treatment, and California voters had the same opportunity that District voters had to vote on local marijuana legislation. In regard to James procedural due process claim, she lacks standing to assert such a claim on behalf of unidentified dispensaries, particularly where it appears those dispensaries conceded that they were operating in violation of federal law and voluntarily shut down before any federal enforcement action was initiated. No one could legitimately assert that these dispensaries lacked sufficient notice when they took action in response to the notice that they received by ceasing their illegal conduct. Finally, while James attempts in her PI brief to assert a claim under Title II of the Americans with Disabilities Act ( ADA ), no such claim appears in the Complaint filed in this case. James cannot succeed in a claim that was never asserted in the first place. Moreover, this Court previously considered and rejected the same argument in James previously-filed action against the Cities of Costa Mesa and Lake Forest. If the Court reaches the issue in this case, it should do the same here. The lack of merit of James claims is more than sufficient basis, by itself, for the Court to deny a PI in this case. Moreover, none of the other relevant factors support emergency injunctive relief here either. James assertion of irreparable harm rests on the notion that marijuana is medically necessary. But the Supreme Court has held that an assertion of medical necessity cannot support prospective injunctive relief when it comes to an illegal substance such as marijuana. For the same reason, the balance of hardships does not tilt in James favor. Moreover, the public interest in this context is properly reflected in Congress s express recognition, through the CSA, that marijuana has no currently accepted medical use. The Court should therefore deny James request for a PI. Case No. :cv0 AG (MLGx)

9 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 BACKGROUND. Federal Law Prohibiting the Production and Distribution of Marijuana The federal drug laws, and the penalties associated with their violation, are contained in the CSA, as amended, codified at U.S.C. 0 et seq. Since the time of the CSA s enactment, marijuana (also known as cannabis) has been classified as a Schedule I drug. U.S.C. (c). That classification reflects express findings by Congress that marijuana has a high potential for abuse, that it has no currently accepted medical use in treatment in the United States, and that [t]here is a lack of accepted safety for use of [marijuana] under medical supervision. Id. (b). The CSA makes it unlawful for any person to knowingly or intentionally... manufacture, distribute, or dispense, or possess marijuana. Id. (a), (a). In addition, it is unlawful for any person to knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using marijuana, or to manage or control any building, room, or enclosure,... for the purpose of unlawfully manufacturing, storing, distributing, or using marijuana. Id. (a). Congress also established a specific procedure for reclassifying a controlled substance, whereby any interested party may petition the Attorney General to amend the schedules. See U.S.C. (a); DEA, Denial of Petition to Initiate Proceedings to Reschedule Marijuana, Fed. Reg. 0 (July, 0), petition for review filed sub nom Americans for Safe Access, et al., v. DEA, No. - (D.C. Cir. filed July, 0). U.S.C. (a) prohibits possession of a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice. Because marijuana is a Schedule I drug, it is not possible to obtain a valid prescription for its possession or use. Oakland Cannabis, U.S. at ("Whereas some other drugs [those in schedules II through V] can be dispensed and prescribed for medical use, see U.S.C., the same is not true for marijuana.").the CSA contains an express exception for government-approved research projects. U.S.C. (f). Case No. :cv0 AG (MLGx)

10 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0. California s Compassionate Use Act of Separate and apart from federal law, the State of California also criminalizes the possession, sale, cultivation, and transport of marijuana. See Cal. Health & Safety Code Ann. -,. In, California created an exemption from state criminal prosecution for physicians, patients, and primary caregivers who possess or cultivate marijuana for medicinal purposes with a physician s recommendation. See id.. ( Compassionate Use Act ). Subsequently, California enacted additional legislation relating to the Compassionate Use Act, see id..-.. Guidelines issued in 00 by the California Attorney General explained that the manufacture, distribution, or possession of marijuana is a federal criminal offense, and that California did not legalize medical marijuana, but instead exercised the state s reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition. Attorney General Guidelines (00), at, available at Factual and Procedural History After California enacted the Compassionate Use Act, a number of marijuana manufacturers, distributors, and users in the state whose marijuana plants had been seized by the DEA sought to enjoin the federal government from enforcing the CSA against them, claiming that such enforcement would violate the Commerce Clause, the Due Process Clause, and the Ninth and Tenth Amendments, as well as the doctrine of medical necessity. Raich I, U.S.. Considering their challenge, the Supreme Court unequivocally held that the CSA s application to those who claimed to manufacture or possess marijuana in accord with California law was consistent with Congress s authority under the Commerce Clause. Id. at -. On remand, the Ninth Circuit affirmed the district court s denial of a preliminary injunction, specifically rejecting the plaintiffs remaining arguments under the Fifth, Ninth, and Tenth Amendments, as well as their attempt to invoke medical Case No. :cv0 AG (MLGx)

11 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 necessity as a basis for prospective injunctive relief. Raich II, 00 F.d at. This controlling precedent establishes the United States authority to enforce the CSA against marijuana dispensaries operating in California. Unrelated to the United States authority in this area, local governments have also sought to enforce zoning and other local restrictions on marijuana distribution within their jurisdictions. James together with several other individuals who are not parties to the instant action originally brought suit in a separate case against the Cities of Costa Mesa and Lake Forest in April 0, seeking to enjoin those cities from enforcing zoning prohibitions on the use of property for marijuana distribution. See James, et al. v. City of Costa Mesa, et al. ( James I ), No. :cv0 AG (MLGx) (C.D. Cal. filed Apr., 0). The James I plaintiffs based their claims on the notion that Title II of the ADA required the Cities to allow access to marijuana for medical purposes as a reasonable accommodation to the plaintiffs alleged disabilities. However, this Court rejected the plaintiffs ADA argument, concluding that the text of the ADA is dispositive in excluding those seeking access to illegal drugs from the definition of a qualified individual with a disability. James I, 0 WL, at *, (C.D. Cal. Apr. 0, 0). The Court accordingly denied the plaintiffs motion for a preliminary injunction. Id. On appeal in the Ninth Circuit, the James I plaintiffs for the first time attempted to enjoin the United States which had never been named as a defendant in that case from enforcing the CSA against marijuana dispensaries in Costa Mesa and Lake Forest. The Ninth Circuit summarily rejected the plaintiffs emergency motion. See Order of Feb., 0, James I, No. - (th Cir.). James and two other individuals thereupon filed this action, and James also filed requests for a TRO and a PI, on February, 0. This Court denied the TRO, The memorandum that James filed in support of her request for a TRO and PI is largely identical to the memorandum filed in the Ninth Circuit in James I. Cf. ECF No. 0, James I, No. - (th Cir.). The declarations that James attaches to Case No. :cv0 AG (MLGx)

12 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 see Order of Feb., 0, and set a schedule with respect to James PI request. While Plaintiffs Complaint lists six separate claims against the United States, as well as two additional claims solely against the Cities of Costa Mesa and Lake Forest, there are at most two identifiable constitutional claims against the United States at issue. First, Plaintiffs assert that the United States has violated equal protection principles by treating District of Columbia voters differently from California voters. Second, Plaintiffs assert that the cease-and-desist letters sent by the U.S. Attorney s Office to marijuana dispensaries in Costa Mesa infringe on their procedural due process rights. In her PI memo, James argues in support of each of these claims and also raises an ADA claim that does not appear at all in the Complaint. James seeks through her motion to preliminarily enjoin the United States from ordering closure of medical marijuana patient collectives in Costa Mesa, California that are operating in conformance with California Health & Safety Code.,., and the 00 California Attorney General Guidelines. See Pl. Proposed Order at -. STANDARD OF REVIEW James asks this Court to issue a preliminary injunction. A court may award such an extraordinary and drastic remedy, before the merits of a case have been decided, only upon a clear showing that the plaintiff is entitled to such relief. Munaf v. Geren, U.S., -0 (00); Winter v. NRDC, U.S., (00). A party seeking such relief must demonstrate () that it is likely to succeed on the merits, () that it is likely to suffer irreparable harm in the absence of preliminary relief, () that the balance of equities tips in its favor, and () that an injunction is in the public interest. Earth Island Inst. v. Carlton, F.d, (th Cir. 0) (citing Winter, U.S. at ). Plaintiffs bear the burden of demonstrating that each of these four factors is met. DISH Network Corp. v. FCC, her memorandum also appear to have originated in James I. Indeed, James own declaration is dated April, 0. See James Decl., Pl. Mem. ex., ECF No.. Case No. :cv0 AG (MLGx)

13 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 F.d, (th Cir. 0). As set forth below, James fails to establish that any of the four factors are met in this case. ARGUMENT I. JAMES IS UNLIKELY TO SUCCEED ON THE MERITS OF HER EQUAL PROTECTION AND DUE PROCESS CLAIMS A. James Equal Protection Claim Is Meritless Because Its Factual Premise that the CSA No Longer Applies in the District of Columbia Is Incorrect Counts Two, Three, and Four of Plaintiffs Complaint, to the extent they can be understood, appear to assert variations on the theme that the United States has violated Plaintiffs equal protection rights either in connection with their purported fundamental right to vote or on some more general level because Congress has allegedly granted District of Columbia residents the authority to declare the CSA s marijuana prohibitions invalid in their jurisdiction while California residents have not been allowed to do so. See Compl. -. In James PI brief, sections II, III, VI, and VII appear to relate to these claims. See Pl. Mem. at -, -. Essentially, James argues that certain actions by Congress in connection with D.C. s passage of a medical marijuana referendum served to endorse the D.C. statute, thus allegedly removing activities that comport with that statute from the reach of the CSA. According to James, the United States has therefore treated California residents differently by continuing to enforce the CSA in California, and by allegedly preventing California residents from exercising their right to vote in the same way that D.C. residents exercised their right to vote when voting for the D.C. referendum. In order to state an equal protection claim, a plaintiff must identify a regulatory classification of some kind. Bowers v. Whitman, F.d, (th Cir. 0). If the classification is based on a suspect class or implicates fundamental rights, it is subject to strict scrutiny. Kahawaiolaa v. Norton, F.d Case No. :cv0 AG (MLGx)

14 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0, (th Cir. 00). Otherwise, the classification must be evaluated under the rational basis standard. Bowers, F.d at. Under that standard, no equal protection violation has occurred as long as () there is a plausible policy reason for the classification, () the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and () the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. Id. (internal quotation omitted). Here, James argument misses the mark entirely, most notably because her premise that marijuana distribution or possession is now legal under federal law in the District of Columbia when it comports with the D.C. statute is wrong. In other words, there is simply no classification upon which James equal protection claim might rest. Significantly, James points to no authority, either in the CSA, in congressional materials, or in the D.C. statute, that states, or even suggests, that compliance with the D.C. statute would create an exemption or defense for D.C. residents if enforcement action were taken against them pursuant to the CSA. To the contrary, the very case that James relies upon, Sibley v. Obama, F. Supp. d 0 (D.D.C. 0), explained that applicants seeking to grow marijuana pursuant to the D.C. statute were required to execute an affidavit recognizing that [g]rowing, distributing, and possessing marijuana in any capacity... is a violation of federal laws and that the law authorizing the District s medical marijuana program will not excuse any registrant from any violation of the federal laws governing marijuana. Id. at (quoting plaintiff s brief, which in turn quoted D.C. s Medical Marijuana Rulemaking 0.). It is well established that not only D.C. law, but also federal law including the CSA can be enforced in the District of Columbia. See, e.g., United States v. Sumler, F.d, (D.C. Cir. ) (recognizing that the United States Attorney for the District of Columbia may combine in one indictment... criminal Case No. :cv0 AG (MLGx)

15 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 violations of both federal and District law ). The fact that Congress had previously prevented the District from enacting its own legislation reducing penalties for marijuana use or distribution, but then ceased imposing any barrier to such an enactment, does not imbue District residents with any special status with respect to the CSA. Indeed, if anything, Congress s action with respect to the District was intended to provide it with the same ability that California and other states have had to enact laws concerning the use of marijuana for medical purposes. See H. Rpt. -0, at ( The bill [P.L. -]... allows the District to conduct and implement a referendum on use of marijuana for medical purposes, as has been done in various states. ). But just as is true in California, the CSA remains in effect in the District, whether the District statute exists or not. See Raich I, U.S. at (Congress has the power, under the Commerce Clause, to regulate distribution, possession, and use of marijuana even where such distribution, possession, or use is allegedly in compliance with state or local laws). Because James theory that the United States is somehow precluded from enforcing the CSA in the District of Columbia is not accurate, her equal protection claims premised on that theory cannot possibly prevail. Even if that factual flaw were not fatal, however, James has not established a likelihood of success with respect to her equal protection allegations. Rather than addressing equal protection standards, James PI brief focuses on the notion of preemption. But James is seeking a PI to enjoin enforcement of the CSA, not to enjoin enforcement of any state or local law. The question of whether any state or local law is preempted by the CSA is therefore not at issue. To the extent James is There is no question that Congress had the authority to act as it did with respect to the District. See Marijuana Policy Project v. United States, 0 F.d, (D.C. Cir. 00). In this regard, it is significant that James does not identify any particular state or local provision as allegedly preempted or not preempted. James does refer to the United States observation, in its brief in opposition to the plaintiff s motion for Case No. :cv0 AG (MLGx)

16 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 attempting to assert that the CSA cannot be enforced against those who purport to comply with state law, it is entirely unclear how that could constitute an equal protection claim. Moreover, as indicated above, that question has been conclusively decided by the Supreme Court in Raich I, which upheld the application of the CSA to those who grow or use marijuana for purportedly medical purposes in compliance with state law. Raich I, U.S. at ; see also Raich II, 00 F.d 0 (holding that the United States enforcement of the CSA against those who claim to use marijuana for medical purposes does not violate either the Tenth or the Ninth Amendments). And even if preemption were an issue here, the Supreme Court addressed that issue, too, in Raich I, recognizing that [t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. Raich I, U.S. at. Finally, James arguments concerning an alleged infringement of her right to vote also make no sense and thus cannot subject her equal protection claim (if such a claim were otherwise viable, which it is not) to strict scrutiny. James does not identify any instance where the United States interfered or threatened to interfere with her ability to vote. Rather, James and other California residents presumably had the same ability to participate in the voting process that resulted in the enactment of California s marijuana laws that District of Columbia residents had to preliminary injunction in Sibley, that the simple fact that the D.C. Act decriminalizes medical marijuana used and distributed in accordance with the implementing regulations that are ultimately passed does not create a positive conflict with the CSA. Def. Sibley Br., at, cited by Pl. Mem. at. Contrary to James characterization, that statement does not suggest that Congress somehow gave a new right to the voters of D.C. Pl. Mem. at. Rather, it merely reflects the view that a state or local government s decision simply to decriminalize a particular activity, standing alone, is not inconsistent with the existence of federal penalties for the same activity. In any event, as explained, because plaintiffs here are seeking to enjoin enforcement of a federal statute, the CSA, the question of whether any state or local provision is preempted by federal law is simply not at issue in this case. Case No. :cv0 AG (MLGx)

17 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 participate in their referendum process. In neither instance could the act of voting in favor of a California or District law guarantee that the United States would not continue to enforce the CSA in the manner it deemed appropriate. James fails to explain how her right to engage in core political speech through the symbolic process of voting, see Turner v. Dist. of Columbia Bd. of Elections & Ethics, F. Supp. d, (D.D.C. ), could possibly be infringed by the United States enforcement of the CSA against marijuana dispensaries in California. Nor can she establish any equal protection violation on this basis. B. James Procedural Due Process Claim Is Meritless Count Seven of Plaintiffs Complaint asserts that the United States has violated James Fifth Amendment right to procedural due process by sending cease-and-desist letters to marijuana dispensaries in Costa Mesa. Compl. 0-. James purports to address her due process claim in Section IV of her TRO application. See Pl. Mem. at -. In fact, however, this section again focuses on James mistaken notion that the CSA somehow no longer applies in the District of Columbia. See id. As already explained, James is simply wrong in her understanding on that point. Thus, her comparison of language in the D.C. statute with language in the cease-and-desist letters that the Central District s U.S. Attorney sent to marijuana dispensaries in Costa Mesa does not, as she appears to believe, demonstrate that marijuana use, possession, and distribution for medical purposes is legal in the District. Nor does it demonstrate that any similar letter that might in the future be sent to a marijuana dispensary operating in the District James identifies no other potential fundamental right at stake, nor could she. In particular, courts have consistently rejected a fundamental right to access the specific drug of one s choice based on its alleged medicinal qualities, even by those who are terminally ill. See, e.g., Carnohan v. United States, F.d 0, (th Cir. ); Abigail Alliance v. von Eschenbach, F.d, 0- (D.C. Cir. 00) (en banc)); see also Sacramento Nonprofit, 0 WL 0, at * (rejecting notion of a fundamental right to access marijuana at California dispensaries). Case No. :cv0 AG (MLGx)

18 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 (should any such dispensary ever open) would have no effect. James again ignores the fact that the CSA continues to apply in the District, regardless of any language contained in the D.C. statute. See Raich I, U.S. at. Insofar as a procedural due process claim is discernible in James argument, she lacks standing to assert it, nor could she prevail even if she had standing. To satisfy procedural due process, a deprivation of life, liberty, or property must be preceded by notice and opportunity for hearing appropriate to the nature of the case. Lone Star Sec. & Video, Inc. v. City of Los Angeles, F.d, (th Cir. 00) (internal quotation omitted). James alleges that she is a member of one or more marijuana dispensaries in Costa Mesa (though she fails to specify which ones), and that Costa Mesa dispensaries have received cease-and-desist letters, but she fails to support the notion that any property interest implicated by the dispensaries closing belongs to her. James cannot assert due process rights on a dispensary s behalf, particularly when, according to her own allegations, all dispensaries of which she was a member shut down rather than go through the process of defending against the threatened enforcement action. Compl.. James does not argue, nor could she, that the proceedings through which federal enforcement action would be taken for example, civil forfeiture proceedings are insufficient to satisfy due process requirements. These processes were available, but the dispensaries instead decided to shut down, apparently recognizing that they were in clear violation of federal law. Neither the dispensaries nor James, on their behalf, can claim that they were deprived of appropriate notice and opportunity to be heard when they received notice (in the form of the cease-and-desist letters) and voluntarily gave up their opportunity to be heard (by shutting down before enforcement action was initiated). James has Of course, to the extent the dispensaries wished to pursue any claims in court, they could have done so either before or after shutting down. Indeed, as mentioned above, other dispensaries did bring suit after they or their landlords received similar letters, though none has yet prevailed in any of their claims. Case No. :cv0 AG (MLGx)

19 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 therefore failed to establish any likelihood of success with respect to her due process claim. C. James Cannot Succeed in an ADA Claim When No Such Claim Appears in the Complaint James raised an ADA claim in James I, the case she brought against the Cities of Costa Mesa and Lake Forest, but the Complaint in this case contains no such claim. Nevertheless, James advances arguments in support of such a claim in her PI brief. See Pl. Mem. at -. But James cannot establish a likelihood of success with respect to claims that do not even appear in the Complaint. Moreover, this Court has already rejected James ADA argument when it denied her PI motion in James I. James I, 0 WL, at *. Even if Plaintiffs were to seek to amend the Complaint in this case, or the Court were otherwise to reach this issue somehow, the Court s reasoning in James I would continue to apply and would foreclose such a claim. II. PLAINTIFFS ARE NOT ENTITLED TO A PI As explained above, James fails to meet the first prong of the PI analysis likelihood of success on the merits. The Court should deny her requested PI on that basis alone. But even if any of her claims had potential merit, a PI would still be inappropriate under the circumstances of this case. First, James has failed to demonstrate irreparable harm. While James has asserted constitutional injury, she has failed to demonstrate a sufficient likelihood If a final judgment is entered in James I, James will be barred by collateral estoppel from asserting this claim in this proceeding. Reyn's Pasta Bella, LLC v. Visa USA, Inc., F.d, (th Cir. 00). Even before final judgment in James I, first-to-file principles warrant rejection of any attempt to assert such a claim here, Alltrade, Inc. v. Uniweld Products, Inc., F.d, (th Cir. ), particularly when the real target of this claim appears to be the same Cities that are defendants in James I, rather than the United States. See, e.g., Pl. Br. at - (complaining of actions by the defendant-appellee cities in this case ). Case No. :cv0 AG (MLGx)

20 Case :-cv-000-ag-mlg Document Filed 0/0/ Page 0 of Page ID #: 0 of success on the merits of [her] constitutional claims to support irreparable harm on that basis alone. Assoc d Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity, 0 F.d 0, (th Cir. ); see also Goldie s Bookstore v. Superior Court, F.d, (th Cir. ) (constitutional claim may be too tenuous to support finding of irreparable harm). In addition, James claim of medical necessity cannot properly support injunctive relief, as explained by the Supreme Court in Oakland Cannabis, U.S. at. As stated in that decision, a court sitting in equity cannot ignore the judgment of Congress, deliberately expressed in legislation, and this Court is therefore bound by the balance that Congress has struck in the [CSA]. Id. at -; see also Marin Alliance, 0 WL 0, at (Oakland Cannabis legally nullif[ies] Plaintiffs claim of irreparable harm ). Similarly, in regard to the balance of equities, the only hardship articulated by [James] which again relates to the asserted medical need of dispensary customers for marijuana is one that federal courts may not consider. Id. (citing Oakland Cannabis, U.S. at ). On the other side of the equation, the Court has recognized the federal Government s interest in ensuring enforcement of its laws. Id. (citing Heckler v. Cmty. Health Servs., Inc., U.S., 0 ()). Immunizing individuals and businesses in advance from criminal prosecution for acts that indisputably violate federal law would severely impair that interest. Cf. Trainor v. Hernandez, U.S., () (noting the accepted rule that equity ordinarily will not enjoin the prosecution of a crime ). This analysis applies here, and James therefore fails to establish that the balance of equities tips in her favor. It should also be noted that, as explained above, James asserts that none of the Costa Mesa dispensaries of which she claims to be a member are still in operation. There is no plausible basis to conclude that any of these dispensaries would resume operations at this point, particularly when James is unlikely to prevail on the merits. The PI that James requests would therefore have no practical effect. Case No. :cv0 AG (MLGx)

21 Case :-cv-000-ag-mlg Document Filed 0/0/ Page of Page ID #: 0 In regard to public interest, the Ninth Circuit has recognized that [t]he public interest may be declared in the form of a statute. Golden Gate Rest. Ass n v. City & County of San Francisco, F.d, (th Cir. 00) (internal quotation omitted). Because Congress, through the CSA, has clearly and unequivocally concluded... that there is no public interest in the use of marijuana for medical reasons, the court concluded that it could not independently reach a contrary conclusion. See Marin Alliance, 0 WL 0, at (citing Oakland Cannabis, U.S. at ). CONCLUSION For the foregoing reasons, Federal Defendants respectfully request that the Court deny James request for a preliminary injunction in this case. Dated: March, 0 Respectfully submitted, TONY WEST Assistant Attorney General ANDRÉ BIROTTE JR. United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director /s/ Kathryn L. Wyer KATHRYN L. WYER (Utah #) U.S. Department of Justice, Civil Division 0 Massachusetts Avenue, N.W. Washington, DC 00 Tel. (0) -/Fax (0) -0 kathryn.wyer@usdoj.gov Attorneys for the Federal Defendants Case No. :cv0 AG (MLGx)