You are on page 1of 71

NO.

______________

In the
Supreme Court of the United States

MARLA JAMES, WAYNE WASHINGTON,
JAMES ARMANTROUT, CHARLES DANIEL DEJONG,
Petitioners,
V.
THE CITY OF COSTA MESA, CALIFORNIA, A CITY
INCORPORATED UNDER THE LAWS OF THE STATE OF
CALIFORNIA; THE CITY OF LAKE FOREST, CALIFORNIA,
A CITY INCORPORATED UNDER THE LAWS OF THE
STATE OF CALIFORNIA,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

MATTHEW S. PAPPAS
Counsel of Record
22762 Aspan Street
#202-107
Lake Forest, CA 92630
(949) 382-1485
Fax: (949) 242-2605
matt.s.pappas@gmail.com

LEE H. DURST
CHARLES J. SCHURTER
Associate Counsel
22762 Aspan Street
#202-107
Lake Forest, CA 92630
(949) 382-1485
Fax: (949) 242-2605

i

QUESTIONS PRESENTED
1. Whether use of medical marijuana by an
otherwise qualified disabled individual by recommendation
and under the supervision of a state licensed physician is an
exception to the definition of illegal use of drugs under the
part of 42 U.S.C. 12210(d)(1) of the Americans with
Disabilities Act, 1990, Pub. L. 101-336, 104 Stat. 327 (ADA),
that excepts use of a drug taken under supervision by a
licensed health care professional?
2. Whether D.C. Code 7-1671, et seq., the
Legalization of Marijuana for Medical Treatment Act, a
District law twice transmitted to and reviewed for preemption
by Congress in 2010 under D.C. Code 1-206.01 and D.C.
Code 1-206.02(c)(1), is subject to Supremacy Clause (U.S.
Const., art. VI, cl. 2) preemption by provisions of Title II of
the Comprehensive Drug Abuse Prevention and Control Act,
1970, Pub. L. 91-513, 84 Stat. 1236 (codified at 21 U.S.C.
801, et seq.)?
3. Whether, when Congress grants District of
Columbia citizens the right to vote-on and implement a law
that is not subject to preemption under the Supremacy Clause,
it must grant state citizens the same right to vote-on and
implement similar laws by removing the Supremacy Clause
prohibition it necessarily eliminated for similarly situated
District residents?


ii

PARTIES TO THE PROCEEDING
The Petitioners are Marla James, James Armantrout,
Wayne Washington, and Charles DeJong.
The Respondents are the City of Costa Mesa, California
and the City of Lake Forest, California.
At the Ninth Circuits request, the United States of
America briefed as amicus curiae in the appellate proceeding
below.

iii

TABLE OF CONTENTS


QUESTIONS PRESENTED .................................................. I
PARTIES TO THE PROCEEDING ..................................... II
TABLE OF CONTENTS .................................................... III
TABLE OF AUTHORITIES .............................................. VI
OPINIONS BELOW ............................................................. 1
JURISDICTION ................................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED ........................................................................... 1
STATEMENT OF THE CASE ............................................. 4
REASONS FOR GRANTING THE PETITION .................. 9
I. THE NINTH CIRCUIT DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW THAT HAS NOT BEEN,
BUT SHOULD BE, SETTLED BY THIS COURT, AND IT
DECIDED THE CASE IN A WAY THAT CONFLICTS
WITH A RELEVANT DECISION OF THIS COURT. ....... 9
II. CONGRESSS INTENT IS CLEAR AND ITS
MANDATE UNAMBIGUOUS - THE ADA SHALL BE
INTERPRETED TO PROVIDE BROAD COVERAGE TO
INDIVIDUALS WITH DISABILITIES. ............................13



iv


III. THE NINTH CIRCUITS DECISION IS
INCONSISTENT WITH THIS COURTS HOLDING IN
GONZALES V. OREGON BY FINDING THE TERM
HEALTH CARE PROFESSIONAL IS TO BE
CONSTRUED IN REFERENCE TO THE CONTROLLED
SUBSTANCE ACT INSTEAD OF STATE LAW. ...............15
IV. PROVIDING ADA COVERAGE TO THE PATIENTS
IN THIS CASE DOES NOT INTERFERE WITH THE
PURPOSE OF THE CONTROLLED SUBSTANCE ACT. ...18
V. LEGISLATIVE HISTORY REVEALS CONGRESS
INTENDED THE ADA TO PROVIDE BROAD
COVERAGE TO THE DISABLED. ..................................21
VI. ANY AMBIGUITY IN THE TEXT OF THE STATUTE
IS RESOLVED IN FAVOR OF PETITIONERS
INTERPRETATION. .........................................................24
VII. THE NINTH CIRCUIT PANEL ERRED WHEN
ANALYZING THE EQUAL PROTECTION CLAIMS
MADE BY THE PETITIONERS. ......................................27
A. The Washington D.C. Home Rule Act provides
District of Columbia residents with limited autonomy.27
B. Even with the Home Rule Act, D.C. has only one
sovereign. .................................................................. 28
C. Congress legislated the preemption rules that apply in
D.C. ........................................................................... 29
E. The Districts Legalization of Marijuana for Medical
Treatment law was twice approved through Home Rule
Act congressional review. .......................................... 31
v

F. Congress gave District voters the right to vote-on and
implement medical marijuana legalization. ................ 32
G. The Petitioners in this case are similarly situated yet
treated differently under the law. ............................... 33
H. Congress cannot give one group of citizens the
franchise and withhold it from another similarly situated
group. ........................................................................ 34

CONCLUSION ....................................................................34




vi

TABLE OF AUTHORITIES

CASES
Barnes v. District of Columbia,
611 F.Supp. 130 (1985) ............................................. 28, 29, 32
Binns v. United States,
194 U.S. 486 (1904) ..............................................................27
Biotechnology Industry Organization v. District of Columbia,
496 F.3d 1362 (2007) ............................................................27
Christianson v. King County,
239 U.S. 356, 36 S.Ct. 114, 60 L.Ed. 327 (1915) ...................27
Crandon v. United States,
494 U.S. 152, 171 (1990) ................................................... 9, 11
Dont Tear It Down, Inc. v. Pa. Ave. Dev. Corp.,
642 F.2d 527 (D.C.Cir.1980) ........................................... 27, 29
Gonzales v. Oregon,
546 U.S. 243, 163 L. Ed. 2d 748, 126 S. Ct. 904 (2006) . passim
Gonzales v. Raich,
545 U.S. 1, 162 L. Ed. 2d 1, 125 S. Ct. 2195 (2005) ..............14
Jackson v. West Indian Company, Ltd.,
944 F.Supp. 423 (1996) .........................................................27
Marijuana Policy Project v. U.S.,
304 F.3d 82 (D.C. Cir. 2002) ........................................... 26, 30
Morton v. Mancari,
417 U.S. 535, 41 L.Ed.2d 290, 94 S.Ct. 2474 (1974) .............17
vii

ODonoghue v. United States,
289 U.S. 516, 53 S.Ct. 740, 746-47, 77 L.Ed. 1356 (1933) ....26
People of the Virgin Islands v. William G. Clark,
Vir.Is.Sup.Ct. No. ST-09-CR-020 (May, 2010) (Published) ...27
Simms v. Simms,
175 U.S. 162 at 168, 20 S.Ct. 5860, 44 L.Ed. 115 (1899) .......27
Turner v. D.C. Bd. of Elections and Ethics,
77 F. Supp. 2d 25, 31 (D.D.C. 1999) .....................................29
United States v. American Trucking Assn.,
310 U.S. 534 (1940) ........................................................ 11, 25
United States v. Government of the Virgin Islands,
363 F.3d 276 (3d Cir. 2004)...................................................26
United States v. Wheeler,
435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) .............26
Watt v. Alaska,
451 U.S. 259, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981) .... 18, 19
STATUTES
21 U.S.C. 801, et seq. ...................................................... passim
21 U.S.C. 823(f) ................................................................. 9, 16
21 U.S.C. 829 .......................................................................... 9
21 U.S.C. 903 .........................................................................19
42 U.S.C. 12210(a) ................................................. 1, 10, 11, 19
42 U.S.C. 12210(d)(1) ..................................................... passim
42 U.S.C. 12101(a)(2) ...............................................................17
42 U.S.C. 12101(a)(3) ...............................................................17
viii

42 U.S.C. 12101(b)(1) ...............................................................17
48 U.S.C. 1541, et seq. ...........................................................27
ADA ........................................................................................... 5
ADA Amendments Act,
2008, Pub. L. 110-325, 122 Stat. 3553 ............................. 12, 13
Americans with Disabilities Act,
1990, Pub. L. 101-336, 104 Stat. 327 .............................. passim
Barr Amendment,
1998, Pub. L. 105-277, 112 Stat. 2681 ............................... 6, 29
Barr Amendment,
1999, Pub. L. 106-113, 113 Stat. 1530 ............................... 6, 29
Comprehensive Drug Abuse Prevention and Control Act,
1970, Pub. L. 91-513, 84 Stat. 1236 .......................... i, 2, 14, 20
Consolidated Appropriations Act,
2009, Pub. L. 111-117, 123 Stat. 3034 ............................... 6, 30
D.C. Act 18-429 (orig. D.C. Law 13-315)
57 DCR 4798 (approved Jul. 27, 2010) ..................................29
D.C. Code 1-201.01, et seq. ....................................................25
D.C. Code 1-203.02 ................................................................25
D.C. Code 1-204.04 ................................................................25
D.C. Code 1-206.01 ................................................... i, 2, 26, 30
D.C. Code 1-206.02 (a)(8) ......................................................26
D.C. Code 1-206.02(a)(4) .......................................................26
D.C. Code 1-206.02(c)(1) ................................................ passim
D.C. Code 1-206.02(c)(2) ........................................... 27, 28, 29
ix

D.C. Code 7-1671, et seq. ........................................ i, 20, 31, 32
D.C. Code Ann. 1-206.02(c)(1)-(c)(2) ....................................28
D.C. Law 13-315 (orig. D.C. Act No. 13-138)
57 DCR 3360 (approved Feb. 25, 2010) .................................29
District of Columbia Home Rule Act,
1973, Pub. L. 93-198; 87 Stat. 777 ........................ 2, 25, 27, 31
Rehabilitation Act,
1973, Pub. L. 93-112, 87 Stat. 355
(codified at 29 U.S.C. 701) .................................................21
OTHER AUTHORITIES
Americans with Disabilities Act of 1989:
Hearing on S. 933 Before the S. Comm. on Labor
and Human Resources, 101st Cong. 40 (1989) ....................21
Americans with Disabilities Act,
S. 933, 101
st
Cong. 1989 ........................................................21
H.R. Rep. No 91-1444 (1970) at 1,
reprinted in 1970 U.S.C.C.A.N. 4566, 4567 .................... 14, 17
H.R. Rep. No. 111-202, 1, at 8 (2009) ................................ 6, 30
CONSTITUTIONAL PROVISIONS
U.S. Const., art. I, 8, cl. 17 ................................................. 2, 26
U.S. Const., art. IV, 3, cl. 2 ....................................................26
U.S. Const., art. VI, cl. 2 .................................................... passim

1

OPINIONS BELOW
The Ninth Circuit Court of Appeals denied rehearing
and rehearing en banc on November 1, 2012. The appellate
court order is found in the Appendix at Pet. App. 1a. The
opinion of the Ninth Circuit is reported at 684 F.3d 825 and is
included in the Appendix at Pet. App. 3a Pet. App. 44a. The
order of the District Court is included in the Appendix at Pet.
App. 45a -- Pet. App. 54a.
JURISDICTION
The basis for jurisdiction in the District Court is 28
U.S.C. 1331. This Court has jurisdiction to review the final
judgment of the Court of Appeals pursuant to 28 U.S.C.
1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. 42 U.S.C. 12210(a), part of the Americans with
Disabilities Act (ADA), 1990, Pub. L. 101-336, 104 Stat. 327
(codified at 42 U.S.C. 12101, et seq.):
In General. For purposes of this chapter, the term
individual with a disability excludes an individual
who is currently engaging in the illegal use of drugs,
when the covered entity acts on the basis of such use.
2. 42 U.S.C. 12210(d)(1), part of the Americans
with Disabilities Act (ADA), 1990, Pub. L. 101-336, 104 Stat.
327 (codified at 42 U.S.C. 12101, et seq.):
(d) Illegal use of drugs defined
(1) In general. The term illegal use of
drugs means the use of drugs, the possession
or distribution of which is unlawful under the
Controlled Substances Act (21 U.S.C. 801 et
seq.). Such term does not include the use of
2

a drug taken under supervision by a licensed
health care professional, or other uses
authorized by the Controlled Substances Act
or other provisions of federal law.
3. Title II of the Comprehensive Drug Abuse
Prevention and Control Act (CSA), Pub. L. 91-513, 84 Stat.
1236 (codified at 21 U.S.C. 801, et seq.).
4. U.S. Const., art. I, 8, cl. 17 (District Clause):
To exercise exclusive Legislation in all Cases
whatsoever, over such District (not exceeding
ten Miles square) as may, by Cession of
Particular States, and the Acceptance of
Congress, become the Seat of the Government of
the United States, and to exercise like Authority
over all Places purchased by the Consent of the
Legislature of the State in which the Same shall
be, for the Erection of Forts, Magazines,
Arsenals, dock-Yards, and other needful
Buildings;
5. U.S. Const. art. VI, cl. 2 (Supremacy Clause):
This Constitution, and the Laws of the United
States which shall be made in pursuance thereof;
and all treaties made, or which shall be made,
under the authority of the United States, shall be
the supreme law of the land; and the judges in
every state shall be bound thereby, anything in
the constitution or laws of any state to the
contrary notwithstanding.
6. D.C. Code 1-206.01, part of the District of
Columbia Home Rule Act, 1973, Pub. L. 93-198; 87 Stat. 777:
Notwithstanding any other provision of this
chapter, the Congress of the United States
reserves the right, at any time, to exercise its
3

constitutional authority as legislature for the
District, by enacting legislation for the District
on any subject, whether within or without the
scope of legislative power granted to the Council
by this chapter, including legislation to amend or
repeal any law in force in the District prior to or
after enactment of this chapter and any act
passed by the Council.
7. D.C. Code 1-206.02(c)(1), part of the District
of Columbia Home Rule Act, 1973, Pub. L. 93-198; 87 Stat.
777:
Except acts of the Council which are submitted
to the President in accordance with Chapter 11 of
Title 31, United States Code, any act which the
Council determines, according to 1-204.12(a),
should take effect immediately because of
emergency circumstances, and acts proposing
amendments to subchapter IV of this chapter and
except as provided in 1-204.62(c) and 1-
204.72(d)(1) the Chairman of the Council shall
transmit to the Speaker of the House of
Representatives, and the President of the Senate,
a copy of each act passed by the Council and
signed by the Mayor, or vetoed by the Mayor
and repassed by two-thirds of the Council
present and voting, each act passed by the
Council and allowed to become effective by the
Mayor without his signature, and each initiated
act and act subject to referendum which has been
ratified by a majority of the registered qualified
electors voting on the initiative or referendum.
Except as provided in paragraph (2) of this
subsection, such act shall take effect upon the
expiration of the 30-calendar-day period
(excluding Saturdays, Sundays, and holidays,
and any day on which neither House is in session
because of an adjournment sine die, a recess of
4

more than 3 days, or an adjournment of more
than 3 days) beginning on the day such act is
transmitted by the Chairman to the Speaker of
the House of Representatives and the President
of the Senate, or upon the date prescribed by
such act, whichever is later, unless during such
30-day period, there has been enacted into law a
joint resolution disapproving such act. In any
case in which any such joint resolution
disapproving such an act has, within such 30-day
period, passed both Houses of Congress and has
been transmitted to the President, such
resolution, upon becoming law, subsequent to
the expiration of such 30-day period, shall be
deemed to have repealed such act, as of the date
such resolution becomes law. The provisions of
1-206.04, except subsections (d), (e), and (f) of
such section, shall apply with respect to any joint
resolution disapproving any act pursuant to this
paragraph.
8. D.C. Code 7-1671, et seq., Legalization of
Marijuana for Medical Treatment Act (as amended 2010).
STATEMENT OF THE CASE
The Petitioners are each severely disabled individuals
who have prescriptions for medical cannabis from licensed
doctors. Petitioner Marla James is confined to a wheelchair.
One of her legs has been amputated. She suffered from
necrotizing fasciitis, has diabetes, and is going blind. After
being prescribed opiate-based medication that caused severe
side-effects, her licensed doctor recommended medical
cannabis as part of a treatment regimen that has, for years,
extended and improved her life. None of the Petitioners use
marijuana recreationally.
Through rules, policies, and enforcement procedures,
the Respondent cities have discriminated against the
Petitioners based on their status as medical marijuana patients.
5

Accordingly, the Petitioners filed suit in the Central District of
California alleging the cities actions violated Title II of the
ADA. District Court Judge Andrew Guilford sympathized with
the patients but denied their application for a preliminary
injunction finding they were not qualified for ADA protection
because of their use of marijuana. In an order limited to
interpretation of 42 U.S.C. 12210(d)(1), part of the ADAs
illegal drug provisions, Judge Guilford implied a Controlled
Substances Act (CSA) authorization requirement into that
section despite the purpose of the CSA being to combat the
recreational abuse of drugs, not to adversely impact disabled
individuals or interfere with the ability of state licensed
doctors to provide an effective treatment regimen for their
patients.
Certiorari is warranted here because this case involves
an issue of extraordinary public importance: whether seriously
ill and disabled individuals remain qualified for protection
under the ADA when they are using cannabis recommended by
a licensed health care provider for purposes of treatment or
symptom relief. This case affects thousands of seriously ill
and disabled Californians as well as millions of similarly
situated Americans who live in states with medical marijuana
laws.
In a 2 to 1 split decision, the Ninth Circuit panel
majority erred when it incorrectly applied rules of statutory
construction. The majority itself recognized the closeness of
the decision and the importance of this issue to seriously ill
and disabled citizens. Essentially, the majority legislated its
own unwritten requirement into the ADA that rendered two
parts of that law superfluous. After noting the decision was a
near draw, the well-reasoned dissenting opinion thoughtfully
and correctly determined there is no conflict between the ADA
and CSA. The dissent correctly found the majority ignored the
intent of Congress when it implied a CSA requirement into the
ADA.
Instead of considering the purpose of the ADA as well
as that laws broad coverage as restated by Congress in 2008
6

and then by failing to recognize the CSA is a law meant to
combat recreational drug abuse and not to commandeer the
authority of states to regulate in the area of medicine, the
majority eviscerated rights Congress provided for millions of
disabled and seriously ill Americans.
The panel further erred when it refused to require
Congress to equally protect state citizens when it enacts federal
legislation that gives meaning and effect to the votes of
citizens in the federal District of Columbia. Although
Congress acts in the role of both state and federal legislature in
the District of Columbia, actions it takes there are restrained
by the Constitution when such actions impact a fundamental
right. Congress enacted federal legislation in 2009 that
granted to District citizens the right to vote-on and then to
effectuate the result of their votes through the Districts now
implemented Legalization of Marijuana for Medical Treatment
Act. It provided those rights through federal legislation signed
by the President after Congress had foreclosed the Districts
medical marijuana law for ten years. Thereafter, it twice
approved the Districts Legalization of Marijuana for Medical
Treatment Act through the express statutory preemption
mechanism included in the Home Rule Act.
The Districts Legalization of Marijuana for Medical
Treatment Act does not apply outside of D.C. However,
Congresss federal legislation (H.R. Rep. No. 111-202, 1, at
8 (2009); Consolidated Appropriations Act, 2009, Pub. L. 111-
117, 123 Stat. 3034) allowing votes cast by District citizens to
have effect after ten years of Congressional prohibition (Barr
Amendment, 1998, Pub. L. 105-277, 112 Stat. 2681; Barr
Amendment, 1999, Pub. L. 106-113, 113 Stat. 1530) gave
those voters a fundamental part of the voting right state
citizens were not given the ability to implement and give
meaning to their votes. It also freed D.C. citizens from 10-
years of Supremacy Clause-like prohibition while leaving the
Supremacy Clause in-force against state medical marijuana
laws. Indeed, votes cast by state citizens remain futile because
numerous state and federal cases hold state laws approving
7

medical marijuana are preempted by the CSA through the
Supremacy Clause.
Unlike state medical marijuana laws, the Districts law
is not subject to Supremacy Clause preemption because it is
anomalous to say that the Supremacy Clause vitiates the later
laws or actions of Congress itself. In this case, there is federal
legislation in 2009 as well as two rounds of Home Rule Act
Congressional preemption review in 2010. By its plain
language, the Supremacy Clause does not operate to override
laws or actions of Congress especially those approved
through the Home Rule Act preemption review process. It is
Congress that created that preemption review process (D.C.
Code 1-206.02(c)(1)-(c)(2) preserve its Constitutional
authority in D.C.
Medical marijuana laws do not allow the recreational
drug activities the CSA was meant to combat. Even so,
holdings like the Ninth Circuit decision in this case continue to
relegate seriously ill and disabled citizens to the ranks of
common drug criminals. Indeed, even after Congressional
action approving medical marijuana and final implementation
of the D.C. law, California citizens operating in full
compliance with that states laws have been subject to federal
jail terms and forfeiture actions under the CSA. Moreover,
Californians in full compliance with state medical marijuana
laws who have relied on Department of Justice memoranda,
policy positions of the Executive Branch, and statements made
by the President continue to be subjected to adverse federal
action. These citizens are not engaged in the recreational use
and abuse of drugs. And the state voters who gave doctors the
ability to include medical cannabis as part of a patients
treatment regimen did not expect their authority over the
practice of medicine to be thwarted by a law meant to combat
drug abuse.
When Congress allowed the District to implement its
marijuana legalization law, it could only do so by recognizing
marijuana has medical value. It recognized that the CSA
prohibits recreational drug abuse and not medical drug use by
8

seriously ill patients to quell excruciating pain or, for instance,
to stop the nausea associated with cancer. Accordingly,
through Congresss actions, which are other provisions of
federal law, the ADA provides protection for seriously ill and
disabled citizens in D.C. While D.C. citizens remain qualified
under the ADA, seriously ill and disabled people in California
who use medical marijuana prescribed by their respective
doctors are excluded from those same protections under the
Ninth Circuits decision in this case.

9


REASONS FOR GRANTING THE PETITION
I. THE NINTH CIRCUIT DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW THAT HAS NOT BEEN,
BUT SHOULD BE, SETTLED BY THIS COURT, AND IT
DECIDED THE CASE IN A WAY THAT CONFLICTS
WITH A RELEVANT DECISION OF THIS COURT.
The statutory interpretation part of this case turns on
one instance of the word other that is contained in
12210(d)(1) of the ADA:
The term illegal use of drugs means the use of
drugs, the possession or distribution of which is
unlawful under the Controlled Substances Act
1

(21 U.S.C. 801, et seq.). Such term does not
include the use of a drug taken under supervision
by a licensed health care professional, or other
uses authorized by the Controlled Substances
Act or other provisions of federal law.
The Respondent cities contend that 12210(d)(1)
contains a single exception allowing only for use authorized
under the CSA. On the other hand, Petitioners position is that
the statute contains three categories of uses that are not
illegal under the ADA: (1) use of a drug taken under
supervision by a licensed health care professional, (2) uses
authorized by the CSA, or (3) uses authorized by other
provision of federal law. In its order denying relief, the
District Court noted by removing the word other the statute
would protect the Petitioners. Pet. App. 53a.
An entire class of disabled people should not be denied
protection from discrimination based on a single use of the

1
The Controlled Substances Act is Title II of a law meant to
combat recreational drug abuse the 1970 Comprehensive Drug
Abuse Prevention and Control Act.
10

word other any more than they should be denied protection
as a result of an errant comma. More importantly, such
protection should not be denied when the word other can be
properly read to give the applicable section meaning that
comports with Congresss 2008 proclamation that the ADA
have broad applicability.
The Ninth Circuit panel majority erroneously held that
the ADA defines illegal drug use by reference to federal law
rather than state law, and that federal law penalizes the
Petitioners medical rather than recreational marijuana use. It
adopted the proposition offered by the cities and adopted by
the district court is that the provision contains a single
exception covering all uses authorized by the CSA
including both CSA-authorized uses that involve professional
supervision (such as use of controlled substances by
prescription, as authorized by 21 U.S.C. 829, and uses of
controlled substances in connection with research and
experimentation, as authorized by 21 U.S.C. 823(f)), and
other CSA-authorized uses. Pet. App. 6a.
The majoritys holding is incorrect because: (1) it fails
to give meaning to two entire clauses within 12210, (2) its
interpretation of the statute is inconsistent with clear
Congressional intent that the ADA is to be interpreted broadly
toward providing protection for the disabled, and (3) is
inconsistent with the Supreme Courts holding in Gonzales v.
Oregon, 546 U.S. 243, 163 L. Ed. 2d 748, 126 S. Ct. 904
(2006).
It is an ancient and sound rule of construction that each
word in a statute should, if possible, be given effect. An
interpretation that needlessly renders some words superfluous
is suspect. Crandon v. United States, 494 U.S. 152, 171
(1990) (Scalia, J. concurring).
The panel majority reasoned that every word in a statute
must be given effect and that the Petitioners interpretation
rendered the word other redundant. It held that unless the
word other is omitted, Petitioners interpretation renders the
11

statutory language outright awkward. Pet. App. 9, 41, 42.
However, the interpretation adopted by the majority failed to
give effect to the first and third clauses, rendering them
meaningless and superfluous. The majoritys interpretation is
more than awkward - it slashes two entire clauses from the
statute. Had Congress intended a single exception, it would
not have listed three in the statute. If, as the panel majority
held, the only authorized use under 12210 comes from the
CSA, then Congress would have said just that.
The Ninth Circuits holding that the CSA contains the
universe of exceptions under 12210(d)(1) swallows up any
other provision of federal law, thus reducing other federal
laws to little more than subsets of the CSA. The Court stated:
One would not naturally describe the use of a drug taken
under supervision by a licensed health care professional, or
other uses authorized by the Controlled Substances Act or
other provisions of federal law unless the supervised uses
were a subset of the uses authorized by the CSA ... Pet. App.
8a. This reasoning elevates the CSA to be supreme over all
federal law concerning drugs. Under this analysis, there can be
no other provision of federal law or use of a drug taken
under supervision of a licensed health care professional
because either exception must gain authorization from the
CSA. Congress might as well have written the exception part
of 12210(d)(1) to read: Illegal use of drugs does not
include uses authorized by the Controlled Substances Act.
The ratio of total words to words rendered superfluous
by the Ninth Circuits holding illustrates the error in its logic.
Under the Petitioners analysis, 100% of the 58 words in
section 12210(d)(1) retain meaning. By removing the word
other, 57 of the 58 words or 98% of the statute retain
meaning. However, under the Ninth Circuits holding, only 38
of the 58 words, or 66%, remain in-tact. Approximately 34%
of the words in 12210(d)(1) are rendered superfluous using the
Ninth Circuits reasoning.
In the interpretation of statutes, the function of the
courts is easily stated. It is to construe the language so as to
12

give effect to the intent of Congress. United States v.
American Trucking Assn., 310 U.S. 534 (1940) at 542. In
determining the meaning of the statute, the Supreme Court
looks not only to the particular statutory language, but to the
design of the statute as a whole and to its object and policy.
Crandon, supra, 494 U.S. at 158 (citations omitted).
The Ninth Circuits interpretation of 12210 focused
on its grammatical sentence structure and its legislative
history. However, it considered these factors in a vacuum
without looking at the purpose of either the ADA or CSA. The
panel majority struggled to reach its conclusion and effectively
turned the statute on its head in order to exclude ADA
coverage for these patients. In a labored effort, the majority
applied various canons of construction to reach its admittedly
near-draw conclusion that required it to speculate Congress
intended an implied CSA authorization requirement in the
ADA. On the other hand, without any difficulty, the well-
reasoned dissenting opinion showed Congress in-fact did not
intend to leave patients using marijuana for medical purposes
without protection:
The statutory interpretation issue at the
core of this case is an unusually tough one, as
the majority opinion recognizes. Looking at the
language of 12210(d)(1) alone, I would come
out where the majority does concluding that
the statute is ambiguous. But unlike the majority,
I would not declare a near-draw. Instead, looking
at the words alone, I would conclude that the
plaintiffs have much the better reading, but not
by enough to be comfortable that their
interpretation is surely correct. Turning then to
the legislative history, I would again declare the
plaintiffs the winner, this time sufficiently, when
combined with the language considerations, to
adopt their interpretation, absent some very good
reason otherwise. And I am decidedly not
convinced that the majoritys facile trump via
13

the Controlled Substances Act (CSA) works,
because, among other reasons, the supposed
tension relied upon does not exist.
Pet. App. 26a. (Berzon, J., dissenting.)
Even the two judge majority recognized the unusually
difficult nature of and near-draw in the case. Id. Moreover,
the majoritys erroneous facile trump that Justice Berzon
refers to in her dissent is based on a manufactured
incongruence between two federal statutes passed for entirely
different reasons, with utterly different purposes, and years
apart from one another. Pet. App. 26a.
II. CONGRESSS INTENT IS CLEAR AND ITS
MANDATE UNAMBIGUOUS - THE ADA SHALL BE
INTERPRETED TO PROVIDE BROAD COVERAGE TO
INDIVIDUALS WITH DISABILITIES.
Congress commanded that the ADA should be
interpreted in a manner that provides broad coverage. It
restated and clarified its intention the law have broad
applicability in its ADA Amendments Act, 2008, Pub. L. 110-
325, 122 Stat. 3553 (ADAAA). It follows that any provision
excluding coverage, such as 12210, must be interpreted
narrowly so that coverage is only denied to those individuals
who Congress has clearly and unambiguously declared are
excluded. Instead of following the command of Congress, the
Ninth Circuit interpreted the section in reverse instead of
applying ADA coverage broadly; it excluded coverage by
ignoring congressional intent and legislative history.
In 2008, Congress amended the ADA because it was
dissatisfied in the narrow manner in which the United States
Supreme Court and other adjudicating bodies had interpreted
it. The express purposes of the ADAAA include:
(1) in enacting the Americans with Disabilities
Act of 1990 (ADA), Congress intended that the
Act provide a clear and comprehensive national
mandate for the elimination of discrimination
14

against individuals with disabilities and provide
broad coverage;
(2) in enacting the ADA, Congress recognized
that physical and mental disabilities in no way
diminish a persons right to fully participate in
all aspects of society, but that people with
physical or mental disabilities are frequently
precluded from doing so because of prejudice,
antiquated attitudes, or the failure to remove
societal and institutional barriers;
(3) while Congress expected that the definition
of disability under the ADA would be interpreted
consistently with how courts had applied the
definition of a handicapped individual under the
Rehabilitation Act of 1973, that expectation has
not been fulfilled;
Sec. 12101 note: Findings and Purposes of ADA
Amendments Act of 2008, Pub. L. 110-325, 2,
Sept. 25, 2008, 122 Stat. 3553
Even though Congress restated its intent in the 2008
ADAAA and at the same time legislatively overturned cases
that improperly excluded disabled individuals from protection,
the Ninth Circuit ignored this command, excised a huge part of
12210(d)(1), and excluded the Petitioners from coverage.
Even though the petitioners have disabilities that have nothing
to do with drug addiction and abuse, prejudice and antiquated
attitudes harbored by the Respondent cities have been
validated by the Ninth Circuit. The CSA was never meant to
be used to exclude from federal civil rights protections
seriously ill and disabled citizens using drugs as part of a
medical treatment regimen. Nor was the ADA meant to make
the use of any drug legal. Section 12210(d) is simply a
qualification provision Congress expected to be interpreted in
favor of providing broad coverage to disabled individuals.
The Ninth Circuits decision has and will have far
reaching implications for disabled citizens in at least nineteen
15

states. Disqualifying the Petitioners from ADA protection
does not curb the recreational drug abuse the CSA is meant to
prohibit. Nor does such disqualification prevent drug abusers
from using their addiction to obtain federal benefits.
Disqualification based on medical drug use does not give
meaning and effect to Congresss express command that the
ADAAA be interpreted in a manner that broadly covers
disabled individuals.
III. THE NINTH CIRCUITS DECISION IS
INCONSISTENT WITH THIS COURTS HOLDING IN
GONZALES V. OREGON BY FINDING THE TERM
HEALTH CARE PROFESSIONAL IS TO BE
CONSTRUED IN REFERENCE TO THE CONTROLLED
SUBSTANCE ACT INSTEAD OF STATE LAW.
As part of the Comprehensive Drug Abuse Prevention
and Control Act, the purpose of the CSA is to combat
recreational drug abuse. It is not a medical practitioner
licensing statute, and it does not provide a definition of health
care professional. The Ninth Circuits holding that drugs
taken under supervision by a licensed health care professional
is an exception that does not extend beyond the CSA is
contrary to the purpose and plain language of the CSA itself
and directly conflicts with this Courts holding in Gonzales v.
Oregon, 546 U.S. 243, 163 L. Ed. 2d 748, 126 S. Ct. 904
(2006).
Congress enacted the Comprehensive Drug Abuse
Prevention and Control Act in order to deal in a
comprehensive fashion with the growing menace of drug abuse
in the United States. H.R. Rep. No 91-1444 (1970) at 1,
reprinted in 1970 U.S. Code Cong. & Admin. News 4566,
4567. Given the purpose of the Act, in Gonzales v. Oregon,
supra, this Court found the Attorney General lacked authority
to declare assisted suicide illicit under the CSA because the
CSA is concerned only with illicit drug dealing and
trafficking, and [t]he structure and operation of the CSA
presume and rely upon a functioning medical profession
16

regulated under the States police powers. Oregon, 546 U.S.
at 275 (Scalia, J. dissenting.) and 270.
Justice Thomas referred to the Courts newfound
understanding of the CSA as a statute of limited reach and
wrote that its change limiting the CSA to recreational drug
activities rests upon constitutional principles that the majority
of the Court [had earlier] rejected in Raich[
2
] Oregon, 546
U.S. at 300, (Thomas, J. dissenting).
In Oregon, this Court found that the CSA looks to state
law in licensing health care practitioners:
The very definition of a practitioner eligible to
prescribe includes physicians licensed,
registered, or otherwise permitted, by the United
States or the jurisdiction in which he practices
to dispense controlled substances. 802(21).
Further cautioning against the conclusion that
the CSA effectively displaces the States general
regulation of medical practice is the Acts
preemption provision, which indicates that,
absent a positive conflict, none of the Acts
provisions should be construed as indicating an
intent on the part of the Congress to occupy the
field in which that provision operates . . . to the
exclusion of any State law on the same subject
matter.
Oregon, supra, 564 U.S. at 270.
Thus, Oregon stands for the proposition that the CSA
recognizes that the licensing of medical practitioners is a
function traditionally reserved for the states and in order to
determine the meaning of a licensed health care professional
one would look not to the CSA, but to state law or other
provision of Federal law. This proposition is further supported
in light of the fact the phrase licensed health care

2
Gonzales v. Raich, 545 U.S. 1, 162 L. Ed. 2d 1, 125 S. Ct.
2195 (2005)
17

professional does not appear in the CSA. Nowhere in the
CSA is the term licensed health care professional defined.
Indeed, a search of the CSAs text revealed no reference to that
phrase including alterations with words combined and moved
around.
However, the term practitioner that is found in the
CSA can be used synonymously or interchangeably with the
word professional, as used in 12210. As the majority in
Oregon held, to determine who practitioners are, the CSA
looks to state law or other provisions of federal law.
The CSA does not contain any independent definition or
even criteria pertaining to physician licensing because it is not
a licensing statute. This Court recognized that:
Before 1984, the Attorney General was required
to register any physician who was authorized by
his State. The Attorney General could only
deregister a physician who falsified his
application, was convicted of a felony relating to
controlled substances, or had his state license or
registration revoked. See 84 Stat. 1255. The CSA
was amended in 1984 to allow the Attorney
General to deny registration to an applicant if
he determines that the issuance of such
registration would be inconsistent with the
public interest. 21 U.S.C. 823(f).
Oregon, 546 U.S. at 261.
Also absent from the CSA is any definition for the
meaning of supervision by a licensed health care
professional or practitioner. There is simply no allowed use of
drugs in the CSA that is even remotely similar to the first
12210(d)(1) exception for use of a drug taken under
supervision by a licensed health care professional. Indeed,
that is why the first exception is included in 12210(d)(1).
There would have been no need for Congress to include the
first exception if it was already in the CSA. Thus, the Ninth
Circuits conclusion that a drug taken under the supervision
18

of a licensed healthcare professional is an exception contained
wholly under the CSA is inconsistent with this Courts
decision in Oregon because one must look to state law to
determine who may be considered a licensed healthcare
professional.
IV. PROVIDING ADA COVERAGE TO THE PATIENTS IN
THIS CASE DOES NOT INTERFERE WITH THE
PURPOSE OF THE CONTROLLED SUBSTANCE ACT.
The ADA and CSA each have two distinct purposes.
The ADA established a comprehensive national mandate for
the elimination of discrimination against individuals with
disabilities. 42 U.S.C. 12101(b)(1). Congress found that
historically, society has tended to isolate and segregate
individuals with disabilities, and that such forms of
discrimination against individuals with disabilities continue to
be a serious and pervasive social problem. 42 U.S.C.
12101(a)(2). Discrimination against people with disabilities
persists in such critical areas as employment, housing, public
accommodations, education, transportation, communication,
recreation, institutionalization, health services, voting, and
access to public services. 42 U.S.C. 12101(a)(3).
On the other hand, the purpose of the CSA is to deal in
a comprehensive fashion with the growing menace of drug
abuse in the United States. H.R. Rep. No 91-1444, at 1
(1970), supra. Thus, the public menace at the heart of the CSA
is recreational drug use. See Oregon, supra. Nothing in the
CSA addresses the civil rights of a disabled person using drugs
for medical purposes. Nor does the CSA address whether a
qualified disabled person can seek redress for discrimination.
Moreover, recognizing that individuals using CSA-covered
drugs are not excluded from ADA coverage does not preclude
prosecuting them under the CSA.
The courts are not at liberty to pick and choose among
congressional enactments, and when two statutes are capable
of coexistence, it is the duty of the courts, absent clearly
expressed congressional intent to the contrary, to regard each
19

as effective. Morton v. Mancari, 417 U.S. 535, 551, 41
L.Ed.2d 290, 94 S.Ct. 2474(1974).
The Court today is bothered because the literal
meaning of a statute altered prevailing law. But usually the
very point of new legislation is to alter prevailing law. T.
Sedgwick, The Interpretation and Construction of Statutory
and Constitutional Law 104 (2d ed. 1874). Watt v. Alaska,
451 U.S. 259, 284, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981)
(Stewart, J. dissenting.)
Instead of harmonizing the CSA and ADA, the panel
majority resolved the texts ambiguity by finding that certain
language contained in the CSA trumps the later enacted ADA.
The Court speculated that since marijuana is listed on Schedule
I of the CSA and because a general provision within the CSA
concerning Schedule I drugs describes them as having no
currently accepted medical use, then Congress could not have
intended to include its use as an exception under the ADA. It
came to this conclusion despite a 1989 Justice Department
letter included by Congress in the ADAs legislative record
that stated the law should not exclude patients using marijuana
and other drugs as part of a treatment regimen from protection.
That Justice Department letter was added to the record when
the part of the 12210(d)(1) exception use of a drug taken
under supervision by a licensed health care professional was
added to the proposed law. Further, had Congress intended to
prohibit the use of all Schedule I drugs under the ADA, it
could have so stated.
The panel majoritys analysis failed to consider the
purpose of each statute and improperly excised more than a
third of section 12210(d)(1). Its decision will, without review,
ensure that the CSA for years to come and contrary to express
congressional purpose and intent, operate to prohibit the
supervised use of a drug recommended by doctors for medical
purposes. Its decision will no doubt impact what will
aggregate to millions of seriously ill, disabled, and
permanently injured Americans facing cancer, AIDS, and other
conditions who, upon diagnosis and through the course of their
20

illness, rarely have the free time to get up daily and push for
political change. The Ninth Circuits decision is inappropriate
in any civilized society that is in-part measured by how it
treats its vulnerable, weakened, and dying citizens. It could
only reach its illogical conclusion by fabricating congressional
intent and history that does not exist -- if it was willing to
excise more than a third of the statute, it was surely able to
change legislative history so that the CSA will for years
continue to prohibit the medical use of drugs under the
supervision of licensed doctors.
Finding that the ADA allows people who use medical
marijuana prescribed as part of a doctor-recommended
treatment regimen does not hamper the unrelated CSA goal of
combatting recreational drug abuse. The ADA is not a state
law subject to Supremacy Clause preemption by the CSA.
Moreover, the CSAs express anti-preemption provision gives
great deference to state law. See 21 U.S.C. 903. A finding
that medical marijuana patients remain qualified disabled
persons allows both the CSA and ADA to remain fully
effective within their respective realms. There can be no doubt
a doctor who recommends medication as part of a treatment
regimen does so to treat a patient while practicing medicine.
Preventing medical treatment through a law meant to combat
recreational drug abuse is not what Congress intended for the
CSA.
Interpreting 12210 broadly in accordance with
Congress proclamation does not interfere with the purpose of
the CSA, but if there was a direct conflict, then the CSA must
yield. If two inconsistent acts be passed at different times,
the last, said the Master of the Rolls, is to be obeyed; and if
obedience cannot be observed without derogating from the
first, it is the first which must give way. T. Sedgwick, The
Interpretation and Construction of Statutory and
Constitutional Law, 104 (2d ed. 1874). Watt, supra, 451 U.S.
at 284 (Stewart, J. dissenting).
The law concerning medical marijuana use is evolving
and changing. So far eighteen states, plus the District of
21

Columbia have legalized marijuana for medicinal purposes,
and two states have legalized its use entirely. This Court in
Oregon found the scope of the CSA to be limited to
recreational drug abuse. Congress gave D.C. citizens the right
to vote-on and implement local medical marijuana provisions
in the District of Columbia. D.C. Code 7-1671, et seq.
Hence, it is clear that both society and the law are moving in
the direction the Petitioners in this case advance. Allowing
medical marijuana patients to remain qualified for ADA
protection is not only consistent with both the ADA and CSA,
it is consistent with current trends of society and the law.
Emerging awareness of the medical value of marijuana has not
only been societal but also shows such medical use has gained
traction in the law -- even in a law Congress approved for its
subjects in D.C.
V. LEGISLATIVE HISTORY REVEALS CONGRESS
INTENDED THE ADA TO PROVIDE BROAD
COVERAGE TO THE DISABLED.
The legislative history of the ADA shows that Congress
did not want people to use drug addiction as a qualifying
disability under the ADA, but also did not want to exclude
otherwise qualified people using drugs as part of their
treatment. The Ninth Circuit acknowledged that Congress
rejected an earlier draft of the statute that was narrower in
scope than the final version that is currently at issue. See Pet.
App. 32a (Berzon, J. dissenting.). The majority, however,
discounted any significance of broad language contained in
earlier versions of the act because [t]here is no reason to think
that the 1990 Congress that passed the ADA would have
anticipated later changes in state law facilitating professional
supervision of drug use that federal law does not permit. Pet.
App. 10a. The conclusion of the majority is not supported by
any statement contained in the ADAs legislative history.
Moreover, the majoritys decision did not even mention that
the purpose of the CSA as part of the Comprehensive Drug
Abuse Prevention and Control Act is to combat the
recreational abuse of drugs.
22

As Justice Berzon pointed out in her dissent, [The
Petitioners] reading of the statute also accords much better
with the overall thrust of the legislative history. That history,
while not entirely without ambiguity, strongly supports [the
Petitioners] interpretation. Pet. App. 32a (Berzon, J.
dissenting).
The ADA was introduced in the Senate by Tom Harkin
during the 101st Congress in 1989 as Senate Bill 933. The
original draft did not include an illegal use of drugs
prohibition. Americans with Disabilities Act, S. 933, 101
st

Cong. 1989. During hearings before the Committee on Labor
and Human Resources, members feared the bill would prevent
employers from firing employees who were found to be under
the influence of drugs at work. Americans with Disabilities
Act of 1989: Hearing on S. 933 before the S. Comm. on Labor
and Human Resources, 101st Cong. 40 (1989). In response,
Senator Harkin stated his intent was to incorporate into the
ADA the policies of Section 504 of the Rehabilitation Act,
1973, Pub. L. 93-112, 87 Stat. 355 (codified at 29 U.S.C.
701) as interpreted by the Supreme Court and in a recent
Justice Department memo prepared by the Attorney General.
Id. That memo was inserted into the record and it explained
that in the view of the Justice Department:
[a]ny legislation must make clear that the
definition of handicap does not include those
who use illegal drugs. . . . [w]e . . . do not wish
to penalize those persons who, in limited cases,
are using controlled substances such as
marijuana or morphine under the supervision of
medical professionals as part of a course of
treatment, including, for example, experimental
treatment or to relieve the side-effects of
chemotherapy. These persons would fall under
the same category as those who are users of legal
drugs.
Pet. App. 35a.
23

During debates in the Senate, Senator Jesse Helms
introduced an amendment that contained language narrower
than the final version as follows:
The term illegal drugs does not mean the use of a
controlled substance pursuant to a valid prescription or
other uses authorized by the Controlled Substances Act,
or other provisions of Federal Law. S. 933, supra,
512(b); Pet. App. 35a.
In the House of Representatives, debate related to the
illegal use of drugs prohibition led to an effort to balance the
needs of the disabled with the need to curb perceived abuses of
civil rights laws like the Rehabilitation Act. Following debate
and testimony, the House revised the S. 933 illegal use of
drugs prohibition and corresponding exceptions. The House
Report explained:
The term illegal drugs is defined in section
101(5) and does not include drugs taken under
supervision by a licensed health care
professional. The exempted category includes,
for example, experimental drugs taken under
supervision. Many people with disabilities, such
as people with epilepsy, AIDS, and mental
illness, take a variety of drugs, including
experimental drugs, under supervision by a
health care professional. Discrimination on the
basis of use of such drugs would not be allowed.
H.R. Rep. No. 101-485, 2, at 79 (1989)
reprinted in 1989 U.S.C.C.A.N. 303, 361; Pet.
App. 33a.
Accordingly, the House revised S.933 to read:
The term illegal use of drugs does not include the use
of controlled substances, including experimental drugs, taken
under the supervision of a licensed health care professional. It
also does not include uses authorized by the [CSA] or other
24

provisions of federal law. H.R. Rep. No. 101-485, 3, at 75
(1990). (Note the separation by a period).
The Senate generally accepted the changes explained in
the House Report and revised the House version to the current
text that was ultimately enacted.
The legislative history shows that the ADA did not
originally contain an illegal drug use exception. The history
also shows that the House of Representatives intended
coverage to be broad and that the illegal drug use
exclusionary provision be narrow. Even the Justice
Department memorandum recognized that the Executive
Branch did not wish to penalize those persons who, in limited
cases, are using marijuana or morphine as part of a
course of treatment The legislative history of the ADA
directly contradicts the conclusion reached by the panel
majority. When that history is considered in light of the
purpose of the ADA, the conclusion requiring a narrow
interpretation of the illegal drug use exclusion becomes even
more compelling.
VI. ANY AMBIGUITY IN THE TEXT OF THE
STATUTE IS RESOLVED IN FAVOR OF PETITIONERS
INTERPRETATION.
A lengthy and involved grammatical discussion on the
use of a comma is not required in order to interpret
12210(d)(1). The use of the word other can be resolved by
way of rational analysis of the entire provision in light of
legislative purpose and history.
At first blush there is no ambiguity in the part of
12210(d)(1), which reads: Such term does not include the use
of a drug taken under supervision by a licensed health care
professional, or other uses authorized by the Controlled
Substances Act or other provisions of federal law. The
forgoing clearly contains three conditions separated by or
and one comma. The first clause, [s]uch term does not
include the use of a drug taken under supervision by a licensed
25

health care professional, is unambiguous, complete within
itself, and terminates with a comma, a coordinating injunction.
The reader naturally interprets this as being an independent
clause. In reading the entire sentence, the majority of the
Ninth Circuit found that the Petitioners reading of
12210(d)(1) renders the word other redundant since
Congress could have more clearly and concisely conveyed the
meaning of two distinct exceptions by leaving the word out.
See Pet. App. 28a (Berzon. J. dissenting). However, the
interpretation adopted by the majority of the Ninth Circuit
panel failed to give effect to every word and rendered two
entire clauses meaningless, essentially striking both from the
statute.
In her dissent, Justice Berzon reconciled the use of the
word other in a manner that spares both that word from the
stigma of redundancy and the balance of the sentence from a
judicial scalpel. Justice Berzon reasoned that the two clauses
could also be read as partially overlapping, with the group of
uses supervised by a doctor partially included within the set of
uses authorized by the CSA but also partially independent,
encompassing in addition a set of uses not authorized by the
CSA. Under this interpretation, other is not redundant.
Instead, it accurately reflects the overlap. Were the other not
there, the exception would have divided the relevant universe
into two non-overlapping sets. Yet, in fact the CSA authorizes
some (but not all) uses of drugs taken under supervision by a
licensed health care professional. The word other serves to
signal that there is no strict dichotomy between the two
phrases, as the bulk of the CSA-authorized uses are within the
broader set covered by the first phrase. See Pet. App. 29a
(Berzon. J. dissenting).
The foregoing explanation also helps explain the
placement of the single comma used in the sentence. The
placement of the comma reinforces the understanding that the
first phrase is complete in itself, while uses other than under
the supervision by a licensed health care professional must
be authorized by the CSA or other federal law. The comma
26

indicates the set of uses described by the first is not entirely
subsumed by the second clause, substituting for an implicit if
in the second clause expressing this lack of total overlap. The
sentence thus excepts (1) all supervised uses and (2) other uses
as well, if by the CSA or other federal law. See Pet. App. 31a
(Berzon. J. dissenting).
The petitioners use of medical marijuana under a
doctors supervision as part of a treatment regimen does not
foreclose protection under the ADA because it is use of a drug
taken under supervision by a licensed health care
professional. The other uses of drugs, as referred to in the
second clause, are not under supervision by a licensed health
care professional but are uses of drugs the CSA provides for
that likewise allow disabled individuals to remain qualified for
protection. Finally, other uses of drugs that are not uses of
drugs under supervision of a licensed health care professional
and are not uses of drugs provided for in the CSA, but are
otherwise permitted by other federal laws, also allow disabled
individuals to remain qualified. That is what section
12210(d)(1) says without excising any words and without
rendering any part of it superfluous. Indeed, if Congress
intended to except only those uses enumerated in the CSA,
12210(d)(1) would have been written more concisely and
simply.
The panel majority struggled to reconcile the word
other and implied CSA authorization where no such
authorization requirement exists. In its analysis, the majority
was overly concerned with the word other, a word of general
use, rather than with the purpose of the ADA. Completely
absent from the majoritys opinion is any analysis or review of
the stated purpose of the CSA to combat the recreational abuse
of drugs. It appears the conclusion reached by the majority
was influenced by a preconceived notion that the CSA is
somehow the final word concerning drug use. The Court in
American Trucking Assn cautioned against falling into those
types of interpretation traps. The statutory purpose and
legislative history only lend credence to the interpretation of
27

the sentence that the use of a drug taken under supervision by
a licensed health care professional is independent from the
CSA.
VII. THE NINTH CIRCUIT PANEL ERRED WHEN
ANALYZING THE EQUAL PROTECTION CLAIMS
MADE BY THE PETITIONERS.
Without analysis, the Ninth Circuit panel concluded that
Congresss actions in the federal District of Columbia granting
rights to D.C. citizens did not result in unequal treatment under
the federal CSA and ADA. Pet. App. 17a 19a.
A. The Washington D.C. Home Rule Act provides
District of Columbia residents with limited
autonomy.
Unlike the fifty (50) United States, Washington D.C.
does not exist under dual sovereigns. Accordingly, in 1973,
responding to calls from District residents seeking some
modicum of self-governance, Congress enacted the District of
Columbia Self-Government and Governmental Reorganization
Act, Pub. L. 93-198, 87 Stat. 774 (1973) (codified as amended
at D.C. Code 1-201.01, et seq.) Later deemed the Home Rule
Act, the law granted residents the right to elect a mayor and a
D.C. Council. It delegated to the D.C. Council legislative
power over all rightful subjects of legislation. D.C. Code
1-203.02, D.C. Code 1-204.04. It lists certain matters that
are off-limits for the council including, inter alia, imposition
of certain commuter taxes, legislation in the area of federal or
D.C. local courts, and prohibitions on allowing tall buildings.
D.C. Code 1-206.02(a)(4) - D.C. Code 1-206.02 (a)(8).
In the Home Rule Act, Congress reserved to itself the
right to repeal D.C. Council enactments at any time. D.C.
Code 1-206.01; See also Marijuana Policy Project v. U.S.,
304 F.3d 82 (D.C. Cir. 2002). Also, the District must submit
all proposed D.C. Council legislation to Congress. Indeed,
D.C. Council enactments become law only if Congress declines
to pass a joint resolution of disapproval within thirty days of a
28

proposed laws submission to it (or sixty days in the case of
criminal laws). D.C. Code 1-206.02(c)(1)-(c)(2). Despite
Congresss purported grant of home rule, under any analysis,
the Districts local government is not a separate sovereign
the only sovereign in the federal district is Congress. U.S.
Const., art. I, 8, cl. 17.
B. Even with the Home Rule Act, D.C. has only one
sovereign.
Through art. I, 8, cl. 17 of the Constitution, the
District Clause, Congress has virtual plenary power over the
District of Columbia. Similar to its District Clause control
over D.C., Congress derives its authority over U.S. territories
through art. IV, 3, cl. 2
3
, the Territorial Clause, of the
Constitution. The two constitutional grants of power have
often been treated as having similar parameters. ODonoghue
v. United States, 289 U.S. 516, 53 S.Ct. 740, 746-47, 77 L.Ed.
1356 (1933) at 541-42. Like D.C., the territory of the U.S.
Virgin Islands does not exist under dual sovereigns. Rather,
the territory is a single sovereignty because it is subject to the
ultimate control of Congress. United States v. Government of
the Virgin Islands, 363 F.3d 276 (3d Cir. 2004); United States
v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303
(1978) at 319. Like laws in other U.S. territories, the Virgin
Islands practices limited self-autonomy through the Revised
Organic Act of 1954, provided for it by Congress in 48 U.S.C.
1541, et seq. Even if the application of a territorial law
approved by Congress creates trappings of a separate
sovereignty, the fact remains that unless and until there is an
adjustment in its status, what Congress gives to a territory with
one hand can be taken away with the other. Jackson v. West
Indian Company, Ltd., 944 F.Supp. 423 (1996). The same
holds true for Washington D.C. D.C. Code 1-206.02(c)(1)-
(c)(2). Like a territory, the District marches to the beat of a
single sovereign drum major. Simms v. Simms, 175 U.S. 162

3
U.S. Const., art. IV, 3, cl. 2 [Territorial Clause].
29

at 168, 20 S.Ct. 5860, 44 L.Ed. 115 (1899); Binns v. United
States, 194 U.S. 486 (1904) at 491-92, 24 S.Ct. 816, 817-18,
48 L.Ed. 1087; See also Christianson v. King County, 239 U.S.
356, 36 S.Ct. 114, 60 L.Ed. 327 (1915) at 364-66.
C. Congress legislated the preemption rules that
apply in D.C.
Like a territory, the District may have the trappings of
dual sovereignty, but it is truly in the domain of only one.
People of the Virgin Islands v. William G. Clark, Vir.Is.Sup.Ct.
No. ST-09-CR-020 (May, 2010) (Published). Indeed, it is even
more beholden to Congress because, unlike the territories, most
D.C. legislation must be reviewed by it and is subject to
rejection before becoming law. D.C. Code 1-206.02(c)(2).
Since D.C. is not a state but is rather a federal area whose self-
governance is authorized by Congress, those laws of the
District that go through Home Rule Act Congressional
approval are in some sense a form of federal regulation.
Biotechnology Industry Organization v. District of Columbia,
496 F.3d 1362 (2007) at 1371. Nevertheless, as between
District statutes and superior enactments by Congress, the
general principles of preemption apply. (emphasis added)
(Ibid.; See also Dont Tear It Down, Inc. v. Pa. Ave. Dev.
Corp., 642 F.2d 527 (D.C.Cir.1980) at 534 n. 65.)
While general principles of preemption apply, the
Supremacy Clause itself does not. Rather, preemption of
District laws is analyzed through specific Home Rule Act
provisions enacted by Congress under its plenary District
Clause powers. Accordingly, it follows that Congress itself
provided explicit preemption rules for D.C. enactments in
sections 601, 602, and 603 of the Home Rule Act. (D.C. Code
1-206.01, 1-206.02(c)(1), 1-206.02(c)(2), 1-233, and 47-
313.) It is the Home Rule Act that provides the preemption
mechanism for D.C. laws -- not the Supremacy Clause.
30

D. When a D.C. enactment has gone through Home
Rule Act congressional review, preemption
analysis is complete.
In reviewing Home Rule Act congressional approval
under Sections 602(c)(1) and 602(c)(2) [D.C. Code 1-
206.02(c)(1)-(c)(2)], the court in Barnes v. District of
Columbia, 611 F.Supp. 130, 134-135 (1985) wrote:
[T]his Court has serious doubts about the extent
to which the Supremacy Clause could nullify a
District of Columbia law enacted pursuant to the
[Home Rule Act] subject to the 30-day review
period provided by 1-233(c)(1). Although that
Act extends a measure of home rule to the
District, [citations], the City Councils
legislative authority is still significantly limited
by the powers retained by Congress. For
instance, Congress possesses a substantial role in
the legislative process through the layover
provision permitting congressional veto or
amendment of Council legislation.
Thereafter, the court distinguished legislation that has
not gone through congressional review from that which has:
It is difficult to reconcile this control exercised
by Congress and its implicit approval of the
legislation with the concept that a law subject to
the 30-day review period violates the Supremacy
Clause. While the preemption doctrine may
affect District of Columbia regulations which
were never reviewed by Congress, [citation
omitted], it would seemingly have a lesser effect
on enactments which have been implicitly
approved by Congress.
611 F.Supp. at 135.
Although some dicta in Dont Tear It Down, supra, 642
F.2d at 534 n. 65 suggests that the preemption doctrine effects
31

District of Columbia legislation no less than state enactments,
that case did not address the effect of Home Rule Act
congressional review. Barnes, supra, 611 F.Supp. at 135; see
also Turner v. D.C. Bd. of Elections and Ethics, 77 F. Supp. 2d
25, 31 (D.D.C. 1999). With its plenary power over the
District, Congress certainly had the power to expressly provide
by statute the preemption mechanisms used for District
enactments. Indeed, if the Supremacy Clause applied to
District legislation, there would have been no need for
Congress to act to prohibit medical marijuana in D.C. for the
ten year period preceding Pub. L. 111-117. See Turner, supra;
see also the Barr Amendment, 1998, Pub. L. 105-277, 112 Stat.
2681 and Pub. L. 106-113, 113 Stat. 1530 (1999). Given the
Home Rule Act preemption provisions expressly provided by
Congress are in a section titled Retention of Constitutional
Authority, there is no doubt Congress meant to retain its power
over the District.
E. The Districts Legalization of Marijuana for
Medical Treatment law was twice approved
through Home Rule Act congressional review.
Here, Congress twice refused to preempt D.C.s
medical marijuana legalization statute (D.C. Stat 7-1671),
first on February 25, 2010 and then again on July 27, 2010.
See D.C. Law 13-315 (orig. D.C. Act No. 13-138) 57 DCR
3360 (approved Feb. 25, 2010); See also D.C. Act 18-429
(orig. D.C. Law 13-315) 57 DCR 4798 (approved Jul. 27,
2010). As the Barnes court suggested, it makes sense the
Supremacy Clause does not apply in cases where a D.C. law
has gone through congressional Home Rule Act preemption
review. Indeed, the two 1-206.02(c)(1)-(c)(2) congressional
reviews of the D.C. medical marijuana law most certainly
completed the preemption process. The fact that the
preemption mechanism takes place before enactment shows
Congress is the sole sovereign in D.C. as separate
sovereigns, states are not required to pass legislation to
Congress before enactment and so the Supremacy Clause
operates against state laws that have already been passed. But
32

even after enactment of a D.C. law, it is still not the
Supremacy Clause that governs preemption of District laws
subject to 1-206.02(c)(1) review it is the reservation of
Constitutional authority Congress retained for itself in D.C.
Code 1-206.01 to repeal, rescind, or modify any District law
at any time.
F. Congress gave District voters the right to vote-on
and implement medical marijuana legalization.
For ten (10) years, District voters had to direct efforts to
Congress rather than vote-on medical marijuana legalization
4
.
Apparently, their efforts directed to Congress were effective.
In December, 2009, Congress enacted Pub. L. 111-117:
The bill [H.R. 3170 (enacted as Pub. L. 111-
117)] also takes further steps towards reducing
undue congressional interference in local affairs
[and] allows the District to conduct and
implement a referendum on use of marijuana for
medical purposes, as has been done in various
states.
H.R. Rep. No. 111-202, 1, at 8 (2009).
Rather than implement its own medical marijuana law
for the District, Congress instead, through federal legislation,
allowed the District to vote-on medical marijuana legalization.
Ibid. When the President signed Pub. L. 111-117 on December
17, 2009 following Congresss approval of H.R. 3170
amended, D.C. voters that were directed to Congress rather
than to the D.C. legislative process (MPP, supra) were
granted a franchise and thereafter adopted the ballot initiative
more than 70% of them had approved in 1998.

4
In MPP, supra, the D.C. Court of Appeals held, The Barr
Amendment merely requires that, in order to have legal effect,
[D.C. voters] efforts must be directed to Congress rather than to
the D.C. legislative process.
33

G. The Petitioners in this case are similarly situated
yet treated differently under the law.
Since it is the explicit preemption parts of the Home
Rule Act rather than the Supremacy Clause that apply in D.C.,
citizens there are not subject to the illegal drug use
provisions of the ADA in the same way the Petitioners are
subject to those restrictions. Likewise, the CSA applies
differently for medical marijuana patients in compliance with
D.C. law than it does for similarly situated state citizens. In
Washington D.C., analysis of the applicability of the
Legalization of Marijuana for Medical Treatment law in
respect to the ADA and CSA is done through rules of statutory
construction because the preemption analysis, although it takes
place in advance of the enactment of D.C. laws through 1-
206.02(c)(1), is complete following preemption review by
Congress.
It is illogical for the laws of a single sovereign to be
subject to the other laws of that same sovereign. It is even
more illogical when that sovereign has implemented an express
statutory preemption review scheme that must be completed
before proposed laws of its local subordinate become effective.
It follows that preemption analysis of D.C.s medical
marijuana law concluded when Congress refused to preempt
the Districts Legalization of Marijuana for Medical Treatment
Act under 1-206.02(c)(1). Instead of the Supremacy Clause,
the congressionally approved D.C. law is instead subject to
analysis under rules of statutory construction. When that law is
correctly analyzed through rules of construction, the impact on
D.C. citizens is markedly different than the impact on state
citizens where the Supremacy Clause applies. First, the D.C.
law was enacted and reviewed by Congress for preemption
under section 1-206.02(c)(1)-(c)(2) later in time than the CSA.
It was not preempted by Congress during that process. Next,
given the detail and specifics included in the Districts law, it
is the later law that is far more specific in respect to the
medical value and use of marijuana. D.C. Stat. 7-1671, et
seq. Finally, Congress specifically allowed its D.C. citizens
34

the right to determine whether marijuana has medical value.
After those voters made that determination, Congress
necessarily approved their findings when it refused to preempt
their law. Accordingly, the ADA protects disabled D.C.
citizens who are prescribed medical cannabis because the
Supremacy Clause does not nullify the District law Congress
twice refused to preempt. Barnes, supra, 611 F.Supp. at 134-
35. According to the Ninth Circuit, it does not protect
similarly situated state citizens.
H. Congress cannot give one group of citizens the
franchise and withhold it from another similarly
situated group.
Without citing authority, the right to vote is
fundamental. Not only did the Ninth Circuit panel fail to
properly analyze equal protection, it did not even address the
differences in the applicability of the ADA in D.C. and the
states. The panel erred when it determined the CSA applies
the same way in D.C. as it does in California. Moreover, it
completely overlooked Congresss action in granting a
fundamental right not just the right to cast a vote, but the
right to effectuate the results of that vote -- to one group of
citizens but not to another similarly situated group.
CONCLUSION
The Court should grant the petition.
MATTHEW S. PAPPAS
Counsel of Record
LEE H. DURST
CHARLES J. SCHURTER
Associate Counsel
22762 ASPAN STREET, #202-107
LAKE FOREST, CA 92630
1a
Marla JAMES; Wayne Washington; James
Armantrout; Charles Daniel Dejong, Plaintiffs-
Appellants,
v.
CITY OF COSTA MESA, a city incorporated under the
laws of the State of California; City of Lake Forest, a
city incorporated under the laws of the State of
California, Defendants-Appellees.
No. 10-55769.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 6, 201
May 21,2012.
Amended November 1,2012
ORDER AMENDING OPINION AND PARTIAL
CONCURRENCE/PARTIAL DISSENT AND
DENYING PETITION FOR REHEARING AND
REHEARING EN BANC AND AMENDED
OPINION
Matthew Pappas, Law Office of Matthew Pappas,
Mission Viejo, CA, for the appellants.
James R. Touchstone and Krista MacN evin J ee, Jones
& Meyer, Fullerton, CA, for appellee City of Costa
Mesa.
Printed with FinePrint - purchase at www.fineprint.com
2a
Jeffrey V. Dunn (argued), Daniel S. Roberts and Lee
Ann Meyer, Best Best & Krieger LLP, Irvine, CA, for
appellee City of Lake Forest.
Thomas E. Perez and Tony West, Assistant Attorneys
General, and Mark L. Gross and Roscoe Jones, Jr.,
Attorneys, Department of Justice, Washington, D.C.,
for the United States as amicus curiae.
Before: PREGERSON, RAYMOND C.
FISHER and MARSHA S. BERZON, Circuit Judges.
Judge FISHER; Partial Concurrence and
by Judge BERZON.
ORDER
Judge Pregerson and Judge Fisher have voted to deny
the petition for rehearing and rehearing en banco
Judge Berzon has voted to grant the petition for
rehearing and rehearing en banco
The full court has been advised of the petition for
rehearing en banc, and no judge has requested a vote
on whether to rehear the matter en banco Fed. R. App.
P.35.
Appellants' petition for rehearing and rehearing en
banc, filed June 4, 2012, is DENIED.
The amended OpInIOn and amended partial
concurrence/partial dissent filed May 21, 2012, will be
filed concurrently with this order.
3a
No further petitions for rehearing will be considered.
OPINION
FISHER, Circuit Judge:
The plaintiffs are severely disabled California
residents. They alleged that "[cJonventional medical
services, drugs and medications" have not alleviated
the pain caused by their impairments. Each of them
has therefore "obtained a recommendation from a
medical doctor" to use marijuana to treat her pain.
This medical marijuana use is permissible under
California law, see Cal. Health & Safety Code
11362.5(d) (suspending state-law penalties for
marijuana possession and cultivation for seriously ill
Californians and their caregivers who "possess[ ] or
cultivate[ ] marijuana for the personal medical
purposes of the patient upon the written or oral
recommendation or approval of a physician"), but
prohibited by the federal Controlled Substances
(CSA), see 21 U.S.C. 812(b)(1)(B), 812(c)
(c)(10), 841(a), 844(a).
The plaintiffs obtain medical marijuana through
collectives located in Costa Mesa and Forest,
California. These cities, however, have taken steps to
close marijuana dispensing facilities operating v"ithin
their boundaries. Costa Mesa adopted an ordinance
excluding medical marijuana dispensaries completely
in 2005. See Costa Mesa, Cal., Ordinance 05-11 (July
19, 2005). Some marijuana dispensing facilities,
including the Costa Mesa collectives, have apparently
continued to operate despite the ordinance, but the
plaintiffs alleged that Costa Mesa police have recently
Printed with FinePrint - purchase at www.fineprint.com
4a
"raided operating marijuana collectives and detained
collective members."l Lake Forest has also allegedly
raided medical marijuana collectives operating within
city limits, and has brought a public nuisance action in
state court seeking to close them. See City of Lake
Forest v. lMoen, No. 30-2009-298887 (Orange Cnty.
Super. Ct. filed Sept. 1,2009).
Concerned the possible shutdown of the
collectives on to obtain medical marijuana,
the plaintiffs brought this action in federal district
~ : o o , . ' ~ < : o o , that the cities' actions violate Title II of
with Disabilities Act (ADA), which
discrimination in the provision of public
services.
2
District Judge Guilford sympathized with
the plaintiffs, but denied their application for
preliminary injunctive relief on the ground that the
ADA does not protect against discrimination on the
basis of marijuana use, even medical marijuana use
supervised by a doctor in accordance with state law,
unless that use is authorized by federal law.
We affirm. We recognize that the plaintiffs are gravely
ill, and that their request for ADA relief implicates not
only their right to live comfortably, but also their basic
human dignity.
We also acknowledge that California has embraced
marijuana as an effective treatment for individuals like
the plaintiffs who face debilitating pain. Congress has
made clear, however, that the ADA defines "illegal
drug use" by reference to federal, rather than state,
law, and federal law does not authorize the plaintiffs'
medical marijuana use. We therefore necessarily
5a
conclude that the plaintiffs' medical marijuana use is
not protected by the ADA.3
DISCUSSION
Title II of the ADA prohibits public entities from
denying the benefit of public services to any "qualified
individual with a disability." 42 U.S.C. 12132.4 The
plaintiffs alleged that, by interfering with their access
to the medical marijuana they use to manage their
impairments, Costa Mesa and Lake Forest have
effectively prevented them from accessing public
services, in violation of Title II. As the district court
recognized, however, the ADA also provides that "the
term 'individual with a disability' does not include an
individual who is currently engaging in the illegal use
of drugs, when the covered entity acts on the basis of
such use." Id. 12210(a). This case turns on whether
the plaintiffs' medical marijuana use constitutes
"illegal use of drugs" under 12210.
5
Section 12210(d)(1) defines "illegal use of drugs"as
the use of drugs, the possession or distribution
of which is unlawful under Controlled
Substances Act. Such term does not include the
use of a drug taken under supervision by a
licensed health care professional, or other uses
authorized by the Controlled Substances Act or
other provisions of Federal law.
Id. 12210(d)(1). The parties agree that the possession
and distribution of marijuana, even for medical
purposes, is generally unlawful under the CSA, and
Printed with FinePrint - purchase at www.fineprint.com
6a
thus that medical marijuana use falls within the
exclusion set forth in 12210(d)(1)'s first sentence.
They dispute, however, whether medical marijuana
use is covered by one of the exceptions in the second
sentence of 12210(d)(1). The plaintiffs contend their
medical marijuana use falls within the exception for
drug use supervised by a licensed health care
professional. alternatively argue that the
exception for use "authorized by . . . other
prOVISIons law" applies. We consider each
argument in
We decide whether the plaintiffs' marijuana use
falls within 12210's supervised use exception.
[1] There are two reasonable interpretations of
12210(d)(1)'s language excepting from the illegal drug
exclusion "use of a drug taken under supervision by a
licensed health care professional, or other uses
authorized by the Controlled Substances Act or other
provisions of Federal law." The first interpretation -
urged by the plaintiffs - is that this language creates
two exceptions to the illegal drug exclusion: (1) an
exception for professionally supervised drug use
carried out under any legal authority; and (2) an
independent exception for drug use authorized by the
CSA or other provisions of federal law. The second
interpretation - offered by the cities and adopted by
the district court - is that the provision contains a
single exception covering all uses authorized by the
CSA or other provisions of federal law, including both
CSA-authorized uses that involve professional
7a
superVISIOn (such as use of controlled substances by
prescription, as authorized by 21 U.S.C. 829, and
uses of controlled substances in connection with
research and experimentation, as authorized by 21
U.S.C. 823()), and other CSA-authorized uses.
Under the plaintiffs' interpretation, their state
sanctioned, doctor-recommended marijuana use is
covered under the supervised use exception. Under
the cities' interpretation, the plaintiffs' state-
authorized medical marijuana use is not covered by
any exception because it is not authorized by the CSA
or another provision of federal law. Although
12210(d)(1)'s language lacks a plain meaning and its
legislative history is not conclusive, we hold, in light of
the text and legislative history of the ADA, as well as
the relationship between the ADA and the CSA, that
the cities' interpretation is correct.
The meaning of 12210(d)(1) cannot be discerned from
the text alone. Both interpretations of the provision
are somewhat problematic. The cities' reading
statute renders the first clause in 12210(d)(1)'s
second sentence superfluous; if Congress had intended
that the exception cover only uses authorized by the
CSA and other provisions of federal could have
omitted the "taken under supervision" language
altogether. But the plaintiffs' interpretation also fails
to "giv[eJ effect to each word" of 12210(d)(1), United
States v. Cabaccang, 332 F.3d 622, 627 (9th Cir. 2003)
(en banc), for if Congress had really intended that the
language excepting "other uses authorized by the
Controlled Substances Act or other provisions of
Federal law" be entirely independent of the preceding
supervised use language, it could have omitted the
Printed with FinePrint - purchase at www.fineprint.com
8a
word "other," thus excepting "use of a drug taken
under supervision by a licensed health care
professional, or uses authorized by the Controlled
Substances Act." Moreover, unless the word "other" is
omitted, the plaintiffs' interpretation renders the
statutory language outright awkward. One would not
naturally describe "the use of a drug taken under
supervision by a licensed health care professional, or
other uses by the Controlled Substances
Act or provisions of Federal law" unless the
supervised uses were a subset of the uses authorized
by the and other provisions of federal law. The
reading thus results not only in surplusage,
but semantic dissonance. Cf Coos Cnty. Ed. of
Cnty. Comm'rs v. Kempthorne, 531 F.3d 792, 806 (9
th
Cir. 2008) (declining to adopt the plaintiffs "tortured
reading of the statute's plain text").6
[2] The cities' interpretation also makes the most
sense of the contested language when it is viewed in
context. See United States v. Havelock, 664 F.3d 1284,
1289 (9th Cir. 2012) (en banc) ("Statutory
interpretation focuses on 'the language itself, the
specific context in which that language is used, and the
broader context of the statute as a whole.' " (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997))).
Here, the context reveals Congress' intent to define
"illegal use of drugs" by reference to federal, rather
than state, law. Section 12210(d)(1) mentions the CSA
by name twice, and 12210(d)(2) provides that "[tJhe
term 'drug' means a controlled substance, as defined in
schedules I through V of section 202 of the Controlled
Substances Act." 42 U.S.C. 12210(d)(2).
9a
We therefore conclude that the cities' interpretation of
the statutory text is the more persuasive, though we
agree with the dissent that the text is ultimately
inconclusive.
7
We therefore look to legislative history,
including related congressional activity.s
The legislative history of 12210(d), like its text, is
indeterminate. It is true, as the plaintiffs point out,
that Congress rejected an early draft of the "taken
under supervision" exception in favor of a broader
version. Compare S. 933, 10pt Congo 512(b) (as
passed by the Senate, Sept. 7, 1989) ("The term 'illegal
drugs' does not mean the use of a controlled substance
pursuant to a valid prescription or other uses
authorized by the Controlled Substances Act or other
provisions of Federal law." (emphasis added)), with
H.R. 2273, 101st Congo 510(d)(1) (as passed by the
House, May 22, 1990) ("Such term does not include the
use of a drug taken under supervision by a licensed
health care professional, or other uses authorized by
the Controlled Substances Act or other of
Federal law." (emphasis added)), and H.R.
No. 101-596, at 2 (1990), reprinted 1990
U.S.C.C.A.N. 565, 596 (explaining that House
version of the illegal drug exclusion chosen over
the Senate version).
We are not persuaded, however, that this history
compels the plaintiffs' interpretation of 12210(d)(1).
Although the expansion of the supervised use
exception suggests Congress wanted to cover more
than just CSA-authorized prescription-based use, it
does not demonstrate that the exception was meant to
extend beyond the set of uses authorized by the CSA
Printed with FinePrint - purchase at www.fineprint.com
lOa
and other prOVISIOns of federal law. The CSA does
authorize some professionally supervised drug use
that is not prescription-based, see 21 U.S.C. 823(f)
(providing for practitioner dispensation of controlled
substances in connection with approved research
studies), and Congress could have intended simply to
expand the supervised use exception to encompass all
such uses.
[3] One Committee Report does include a brief
passage that arguably supports the notion that
12210(d)(1),s supervised use language and its
language are independent. See H.R.
101-485, pt. 3, at 75 (1990)("The term 'illegal
use or drugs' does not include the use of controlled
substances, including experimental drugs, taken under
the supervision of a licensed health care professional.
It also does not include uses authorized by the
Controlled Substances Act or other provisions of
federal law." (emphasis added)). This discussion is of
limited persuasive value, however, because it may rest
on the unstated assumption - quite plausible at the
time - that professionally supervised use of illegal
drugs would always be consistent with the CSA. In
fact, the experimental drug use listed in the House
Committee Report as an example of the sort of use
covered by the supervised use exception is itself CSA-
authorized. See 21 U.S.C. 823(f). There is no reason
to think that the 1990 Congress that passed the ADA
would have anticipated later changes in state law
facilitating professional supervision of drug use that
federal law does not permit. The first such change
came six years later, when California voters passed
Proposition 215, now codified as the Compassionate
11a
Use Act of 1996. See Gonzales v. Raich, 545 U.S. 1,5
(2005).
Although it is true, as the dissent points out, that use
of marijuana for medical purposes "was not
unthinkable" in 1990, before, during and after adoption
of the ADA there has been a strong and longstanding
federal policy against medical marijuana use outside
the limits established by federal law itself. See id. at 5-
6, 10-14 (contrasting California's historical tolerance
for medical marijuana with comprehensive federal
limits on marijuana possession imposed by Congress in
1970). In 1970, despite marijuana's known historical
use for medical purposes, Congress listed marijuana as
a Schedule I drug, designating it as a substance having
"a high potential for abuse," "no currently accepted
medical use in treatment in the United States" and "a
lack of accepted safety [standards] for use ... under
medical supervision." Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub. L. 91-
513, tit. II, 202(b)(1), 84 Stat. 1236, 1247 (codified at
21 U.S.C. 812(b)(1)). In 1989, the Administrator of
the Drug Enforcement Agency (DEA) an
administrative law judge's recommendation that
marijuana be relisted from Schedule I Schedule II
because of its therapeutic advantages. The
Administrator said that "marijuana has not been
demonstrated as suitable for use as a medicine." 54
Fed. Reg. 53,767, 53,768 (Dec. 29, 1989). The DEA once
again rejected rescheduling in 1992, reaffirming the
absence of accepted medical use of marijuana. See 57
Fed. Reg. 10,499 (Mar. 26, 1992). It did so again in
2001. See 66 Fed. Reg. 20,038 (Apr. 18, 2001). In 1992,
the Federal Drug Administration (FDA) closed the
Printed with FinePrint - purchase at www.fineprint.com
12a
Investigational New Drug (IND) Compassionate
Access Program, which had begun in 1978 and had
allowed a few dozen patients whose serious medical
conditions could be relieved only by marijuana to
apply for and receive marijuana from the federal
government. See Conant v. Walters, 309 F.3d 629, 648
(9th Cir. 2002); Mark Eddy, Congo Research Serv., RL
33211, Medical Marijuana: Review and Analysis of
Federal and 'Policies 8 (2010). In 1998, Congress
passed the Consolidated and Emergency
Supplemental Appropriations Act for 1999, Pub. L.
No. 105-277, 112 Stat. 2681 (1998). Under the heading
Marijuana for Medicinal Use," this
stated in part, "Congress continues to
support the existing Federal legal process for
determining the safety and efficacy of drugs and
opposes efforts to circumvent this process by
legalizing marijuana, and other Schedule I drugs, for
medicinal use without valid scientific evidence and the
approval of the Food and Drug Administration." [d.
Every year between 1998 and 2009, Congress blocked
implementation of a voter-approved initiative allowing
for the medical use of marijuana in the District of
Columbia. See, e.g., Consolidated Appropriations Act,
2000, Pub. L. No. 106-113, 167, 113 Stat. 1501, 1530
(1999). Between 2003 and 2007, the House annually,
and by large margins, rejected legislation that would
have prevented the Justice Department from using
appropriated funds to interfere with implementation
of medical marijuana laws in the states that approved
such use. See Eddy, supra, at 4-5.
Under the plaintiffs' view, the ADA worked a
substantial departure from this accepted federal policy
13a
by extending federal protections to federally
prohibited, but state-authorized, medical use of
marijuana. That would have been an extraordinary
departure from policy, and one that we would have
expected Congress to take explicitly. Cf CNA Fin.
Corp. v. Donovan, 830 F.2d 1132, 1148 (D.C. Cir. 1987)
(noting that the Supreme Court has "insisted on some
clear evidence of congressional intent to work 'a
substantial change in accepted practice' through [a
statutory] revision"). It is unlikely that Congress
would have wished to legitimize state-authorized,
federally proscribed medical marijuana use without
debate, in an ambiguously worded ADA provision.
[4] Moreover, contrary to the dissent's suggestion,
Congress did not need to include medical marijuana
use under the ADA's supervised use exception to
ensure that the federal medical marijuana program -
the IND Compassionate Access Program -
covered by 12210(d)(1). The federal
presumably authorized by the CSA's
experimental research provisions, see 21
823(f), and was thus already covered of
12210(d)(1) that excepts CSA-autHbrized) uses. The
same is true of the
programs referenced in the Justice Department
memorandum that the dissent cites. We do not quarrel
with the dissent's observation that Congress intended
the supervised medical use exception to apply to
experimental use of controlled substances, including,
perhaps, experimental use of marijuana. These
experimental uses, however, are authorized by federal
law, and subject to a comprehensive federal
regulatory regime. We find nothing in the legislative
Printed with FinePrint - purchase at www.fineprint.com
14a
history to suggest that Congress intended to extend
ADA protection to state-authorized, but federally
prohibited, uses of marijuana falling outside this
regulatory framework. There is not one word in the
statute or in the legislative history suggesting that
Congress sought to exclude from the definition of
illegal drug use the use of a controlled substance that
was lawful undei' state law but unlawful and
also is the only interpretation that
Hy hp'Jil1onizes the ADA and the CSA. See In re
Lines, 58 F.3d 1432, 1440 (9th Cir. 1995)
("[W]e must, whenever possible, attempt to reconcile
potential conflicts in statutory provisions."). To
conclude that use of marijuana for medical purposes is
not an illegal use of drugs under the ADA would
undermine the CSA's clear statement that marijuana
is an unlawful controlled substance that has "no
currently accepted medical use in treatment in the
United States." 21 U.S.C. 812(b)(1)(B). As noted,
Congress reaffirmed this principle in a 1998
appropriations act, see Pub. L. No. 105-277, div. F., 112
Stat. 2681, 2681-760 (1998) ("It is the sense of
Congress that ... marijuana ... [has] not been
approved ... to treat any disease or condition."), and
the government has reiterated it in a number of
decisions and advisory memoranda, as well as in its
amicus brief in this appeal. See Brief for the United
States as Amicus Curiae; see also Memorandum from
Deputy Att'y Gen. David W. Ogden to Selected U.S.
Att'ys, at 1 (Oct. 19, 2009)[hereinafter Ogden Memo]
15a
("Congress has determined that marijuana IS a
dangerous drug."); Memorandum from Deputy Att'y
Gen. James M. Cole to U.S. Att'ys, at 1 (June 29,
2011)(same); Memorandum from Helen R. Kanovsky,
Dep't of Hous. & Urban Dev., to John Trasvifia,
Assistant Sec'y for Fair Hous. & Equal Opportunity,
et al., at 2 (Jan. 20, 2011)[hereinafter Kanovsky MemoJ
(stating that marijuana "may not be legally prescribed
by a physician for any reason").9
[5J Accordingly, in light of the text, the legislative
history, including related congressional activity, and
the relationship between the ADA and the CSA, we
agree with both district courts that have considered
the question, as well as the Department of Housing
and Urban Development and the United States as
amicus curiae, in concluding that doctorsupervised
marijuana use is an illegal use of drugs not covered by
the ADA's supervised use exception. See James v.
City of Costa Mesa, No. SACV 10-0402 AG (MLGxJ,
2010 WL 1848157, at *4 (C.D. Cal. Apr. 30, 2010);
Barber v. Gonzales, No. CV-05-0173-EFS, WL
1607189, at *1 (E.D. Wash. July 1, Kanovsky
Memo at 5 ("Under ... the ADA, whether a given drug
or usage is 'illegal' is determined exclusively by
reference to the CSA .... While ... the ADA
contain[sJ language providing a physician-supervision
exemption to the 'current illegal drug user'
exclusionary provisions, this exemption does not apply
to medical marijuana users.").10
A contrary interpretation of the exception for "use of a
drug taken under supervision by a licensed health care
professional" would allow a doctor to recommend the
Printed with FinePrint - purchase at www.fineprint.com
16a
use of any controlled substance - including cocaine or
heroin - and thereby enable the drug user to avoid
the ADA's illegal drug exclusion. Congress could not
have intended to create such a capacious loophole,
especially through such an ambiguous provision. Cf
Ross v. Ragingwire Telecomms., Inc., 174 P.3d 200,
207 (Cal. 2008) (observing, in interpreting California's
employment discrimination law, that "given the
controversy that would inevitably have attended a
legislative to require employers to
accommodate marijuana use, we do not believe that
[the relevant statute] can reasonably be understood as
adopting a requirement silently and without
11
[6] We recognize that the federal government's views
on the wisdom of restricting medical marijuana use
may be evolving. See Ogden Memo at 1-2 (advising
against using federal resources to investigate and
prosecute "individuals whose actions are in clear and
unambiguous compliance with existing state laws
providing for the medical use of marijuana"). But for
now Congress has determined that, for purposes of
federal law, marijuana is unacceptable for medical use.
See 21 U.S.C. 812(b)(1)(B). We decline to construe an
ambiguous provision in the ADA as a tacit qualifier of
the clear position expressed in the CSA. Accordingly,
we hold that federally prohibited medical marijuana
use does not fall within 12210(d)(1),s supervised use
exception.
II.
17a
The plaintiffs contend that even if their marijuana use
does not fall within the 12210(d)(1) exception for "use
of a drug taken under supervision by a licensed health
care professional," it nonetheless comes within the
separate exception for drug use "authorized by ...
other provisions of Federal law," by virtue of recent
congressional action allowing the implementation of a
Washington, D.C. medical marijuana initiative.
We rej ect this argument.
[7] D.C.'s Initiative 59 suspended local criminal
penalties for seriously ill individuals who use medical
marijuana with a doctor's recommendation. See D.C.
Act 13-138, 2 & 3 (Sept. 20, 1999) (providing that
such individuals do not violate the District of Columbia
Uniform Controlled Substances Act). Although D.C.
voters passed this initiative in 1998, Congress blocked
its implementation through an appropriations
provision known as the Barr Amendment, as
earlier. See Consolidated Appropriations Act 2000,
Pub. L. No. 106-113, 167(b), 113 Stat. 1501,1530
(1999)("Initiative 59 . . . shall not ");
Comment, Seeking a Second Opinion: How to Cure
Maryland's Medical Mar#uana Law, U. BaIt. L.
Rev. 139, 149 n.61 (2010) (describing the history of the
Barr Amendment). Congress reenacted the Barr
Amendment every year thereafter until 2009, when it
passed an appropriations bill without the Barr
Amendment language. See Consolidated
Appropriations Act of 2010, Pub. L. No. 111-117, 123
Stat. 334 (2009). Soon afterward, the D.C. Council
approved implementation of Initiative 59, see D.C. Act
18-210 (June 4, 2010), and Congress did not pass any
Printed with FinePrint - purchase at www.fineprint.com
18a
joint resolution of disapproval, thus allowing the
initiative to take effect. See Marijuana Policy Project
v. United States, 304 F.3d 82, 83 (D.C. Cir. 2002) ("D.C.
Council enactments become law only if Congress
declines to pass a joint resolution of disapproval within
thirty days.").
[8] The plaintiffs argue that these congressional
actions amount "other provisions of Federal law"
that authorize medical marijuana use under
12210(d)(1).disagree. By allowing Initiative 59 to
take effect,Congress merely declined to stand in the
efforts to suspend local penalties on
marijuana use. It did not affirmatively
authorize medical marijuana use for purposes of
federal law, which continues unambiguously to
prohibit such use.
12
See Webster's Third New
International Dictionary 147 (2002) ("Authorize
indicates endowing formally with a power or right to
act."). Moreover, even if Congress' actions somehow
implicitly authorized medical marijuana use in the
Disbnict of Columbia, Congress in no way authorized
the plaintiffs' medical marijuana use in California.
Congress' actions therefore did not bring the plaintiffs'
marijuana use within the 12210(d)(1) exception.
[9] We also do not agree with the plaintiffs that
"[e]qual protection . . . mandates" a different
conclusion. Congress' decision not to block
implementation of Initiative 59 did not result in the
unequal treatment of District of Columbia and
California residents. On the contrary, Congress'
actions allow these jurisdictions to determine for
themselves whether to suspend their local
19a
prohibitions on the use and distribution of marijuana
for medical purposes. Local decriminalization
notwithstanding, the unambiguous federal prohibitions
on medical marijuana use set forth in the CSA
continue to apply equally in both jurisdictions, as does
the ADA's illegal drug exclusion. There is no unequal
treatment, and thus no equal protection violation. See
Boos v. Barry, 485 U.S. 312, 333 (1988) (remarking
that a statute could only run afoul of the Equal
Protection Clause if construed to generate unequal
treatment).
We therefore reject the plaintiffs' argument that their
use of medical marijuana was authorized by Congress
when it allowed implementation of D.C.'s Initiative 59.
CONCLUSION
We hold that doctor-recommended marijuana use
permitted by state law, but prohibited by federal law,
is an illegal use of drugs for purposes of the ADA,
that the plaintiffs' federally proscribed
marijuana use therefore brings them within ADA's
illegal drug exclusion. This conclusion is not altered by
recent congressional actions the
implementation of the District of Columbia's local
medical marijuana initiative. The district court
properly concluded that the plaintiffs' ADA challenge
to the cities' efforts to close their medical marijuana
collectives is unlikely to succeed on the merits. The
district court therefore did not abuse its discretion by
denying preliminary injunctive relief. See Far1"is v.
Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) (describing
Printed with FinePrint - purchase at www.fineprint.com
20a
the legal standard applicable to preliminary injunctive
relief and the standard of review on appeal).13
The parties shall bear their own costs on appeal.
AFFIRMED.
Footnotes
1 We assume<,as
efforts to
parties do, that Costa Mesa's
medical marijuana "dispensaries"
marijuana dispensing facilities that serve
n'l""<TTC' which the complaint terms "collectives."
6, 10-11.
2The complaint alleged that "[eJach of the plaintiffs is
'a qualified person with a disability as defined in the
ADA." CompI. ~ 4. It further alleged that each of the
defendant cities is covered by Title II, under which
public entities "must not intentionally or on a
disparate impact basis discriminate against the
disabled individual's meaningful access to public
services." [d. ~ 20. The complaint sought an order
requiring the cities to "cease and desist any further
action to remove existing marijuana collectives
organized under the laws of California," as well as to
establish regulations "that will accommodate the
needs of qualified persons under the ADA so as to be
able to legally access marijuana under California law."
[d. at 5-6.
3We do not hold, as the dissent states, that "medical
marijuana users are not protected by the ADA in any
circumstance." We hold instead that the ADA does not
21a
protect medical marijuana users who claim to face
discrimination on the basis of their marijuana use. See
42 U.S.C. 12210(a) (the illegal drug use exclusion
applies only "when the covered entity acts on the basis
of such use"). As the Equal Employment Opportunity
Commission has explained,
A person who alleges disability based on one of
the excluded conditions [such as current use of
illegal drugs or compulsive gambling, see 42
U.S.C. 12211(b)(2),] is not an individual with a
disability under the ADA. Note, however, that
a person who has one of these conditions is an
individual with a disability if (s)he has another
condition that rises to the level of a disability.
See House Education and Labor Report at 142.
Thus, a compulsive gambler who has a heart
impairment that substantially limits hislher
major life activities is an individual with a
disability. Although compulsive gambling not
a disability, the individual's heart imoairment is
a disability.
u.S. Equal Emp't Opportunity Comm'n, Section 902
Definition of the Term Disability, 902.6 (last
modified No. 21, 2009), available at
http://www.eeoc.gov/policy/docs/902cm.html (last
visited Apr. 27,2012).
4Under Title II of the ADA, "no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the
benefits of the services, programs, or activities of a
public entity or be subjected to discrimination by any
Printed with FinePrint - purchase at www.fineprint.com
22a
such entity." 42 U.S.C. 12132. A "public entity"
includes "any State or local government," id.
12131(1)(A), and there is no dispute that the defendant
cities are public entities for purposes of Title II.
5The cities do not dispute that they have acted "on the
basis of" the plaintiffs' marijuana use by restricting
the operation of medical marijuana collectives on
which the plaintiffsrely.
6Unlike our dissenting colleague, we do not place
on the use of a comma to separate
from other uses authorized by the
federal laws. We very much doubt
Congress would have relied on a single comma to
acknowledge the legitimacy of a highly controversial
medical practice. Cf Crandon v. United States, 494
U.S. 152, 169 (1990) (Scalia, J., concurring) (remarking,
in discounting the significance of a misplaced comma,
that "the evidence ... should be fairly clear before one
concludes that Congress has slipped in an additional
requirement in such an unusual fashion").
7 Although the parties did not raise it, we have
considered the rule of the last antecedent, under which
"a limiting clause or phrase . . . should ordinarily be
read as modifying only the noun or phrase that it
immediately follows." Barnhart 'v. Thomas, 540 U.S.
20, 26 (2003). "The rule of the last antecedent,
however, 'is not an absolute and can assuredly be
overcome by other indicia of meaning.' " United States
v. Hayes, 555 U.S. 415, 425 (2009) (quoting Barnhart,
540 U.S. at 26); see also Nw. Forest Resource Council
v. Glickman, 82 F.3d 825, 833 (9th Cir. 1996) (holding
23a
that "the doctrine of last antecedent ... must yield to
the most logical supervimeaning of a statute that
emerges from its plain language and legislative
history"). In the context presented here, the rule of
the last antecedent does not make the meaning of the
statutory text plain and unambiguous. Nor, in
resolving the ambiguous text, does whatever
presumption the rule confers outweigh other indicia of
meaning. As we explain, the language, the legislative
history, including the historical congressional context,
the relationship between the ADA and the CSA and
the absurd results the plaintiffs' interpretation would
produce all support the interpretation the cities urge
and the United States has embraced as amicus curiae.
8" 'If the statutory language is unambiguous and the
statutory scheme is coherent and consistent,' judicial
inquiry must cease." Miranda 'v. Anchondo, 684 F .3d
844,849 (9th Cir. 2012) (quoting In re Ferrell, 539 F
1186, 1190 n.10 (9th Cir. 2008)). If the statute
ambiguous, however, "we may use
construction, legislative history, and the
overall purpose to illuminate intent."
Probert v. Family Centered Servs. of Alaska, Inc., 651
F.3d 1007, 1011 (9th Cir. 2011)(quoting V. Glock,
Inc., 565 F.3d 1126, 1133 (9th Cir. 2009) (internal
quotation marks omitted). "We may also look to other
related statutes because 'statutes dealing with similar
subjects should be interpreted harmoniously.'" Tides
V. Boeing Co., 644 F.3d 809, 814 (9th Cir. 2011)(quoting
United States V. Nader, 542 F.3d 713, 717 (9th Cir.
2008)); see also Tidewater Oil Co. v. United States, 409
U.S. 151, 157-58 (1972)(stating that "it is essential that
we place the words of a statute in their proper context
Printed with FinePrint - purchase at www.fineprint.com
24a
by resort to the legislative history," including related
congressional activity addressing the same subject
matter).
9Before oral argument, we invited the view of the
United States as amicus curiae. The government
accepted our invitation and filed an amicus brief
supporting the interpretation:
The interpretation of the term "illegal
use drugs," as defined in 42 U.S.C. [ ]
12210(d), includes the use of marijuana taken
doctor supervision, unless that use is
authorized by the CSA or another federal law,
which is not the case here. Federal law makes
clear that medical marijuana use does not
receive special protection under the ADA.
Brief for the United States as Amicus Curiae at 10.
lOWe do not, as the dissent suggests, resolve the
statutory ambiguity based on an imagined
inconsistency between the express terms of the ADA
and "general considerations of supposed public
interests" derived from the CSA. United
Paperworkers Int'Z Union V. 114isco, 484 U.S. 29, 43
(1987) (quoting W.R. Grace & CO. V. Rubber Workers,
461 U.S. 757, 766 (1983)) (internal quotation marks
omitted). The CSA directly addresses whether medical
marijuana use constitutes illegal use of drugs, and
clearly states that such use is unlawful.
11 The dissent dismisses this problem, arguing that
state licensing requirements are sufficient to limit the
25a
reach of the supervised use exception. State licensing
requirements do not eliminate the potential absurdity,
however. A doctor who recommends the use of an
illegal drug might still succeed in preserving ADA
protection for the drug user, even if the doctor's
behavior might ultimately result in discipline before
the state licensing authority.
12It is true, of course, that, because the District of
Columbia is not sovereign, the D.C. Council's
legislative power is derived from that of Congress. See
U.S. Const. art. 1, 8, cl. 17 ("Congress shall have
Power ... [t]o exercise exclusive Legislation in all
Cases whatsoever, over . . . the Seat of the
Government of the United States."); D.C. Code Ann.
1-203.02, 1-204.04 (delegating some of Congress'
legislative power to the District and enumerating the
powers of the D.C. Council). But "[u]nlike most
congressional enactments, the [D.C.] Code is
comprehensive set of laws equivalent to those

by state and local governments." Key v.
U.S. 59, 68 n.13 (1977). D.C. Council are
therefore not "federal" laws in the See
If .... ,
United States v. Weathers, 493 F.3d (D.C. Cir.
2007) (distinguishing between counts "under
federal law" and "under the D.C. Code"); Foretich v.
United States, 351 F.3d 1198, 1205 (D.C. Cir. 2003)
(referring to "criminal liability under both D.C. and
federal law").
13Because we conclude that the plaintiffs are not
qualified individuals with a disability protected by the
ADA, we do not reach Costa Mesa's alternative
argument that the ADA does not require
Printed with FinePrint - purchase at www.fineprint.com
26a
accommodation of a qualified individual's
"misconduct." Likewise, because we conclude that the
district court properly denied preliminary injunctive
relief, we need not decide whether the Anti-Injunction
Act would prohibit the court from enjoining Lake
Forest from pursuing its state-court public nuisance
action.
concurrmg m part and
The interpretation issue at the core of this
cas e tough one, as the majority opinion
Looking at the language of 12210(d)(1)
alone"z; I would come out where the majority does-
concluding that the statute is ambiguous. But unlike
:the majority, I would not declare a near-draw. Instead,
looking at the words alone, I would conclude that the
plaintiffs have much the better reading, but not by
enough to be comfortable that their interpretation is
surely correct. Turning then to the legislative history,
I would again declare the plaintiffs the winner, this
time sufficiently, when combined with the language
considerations, to adopt their interpretation, absent
some very good reason otherwise. And I am decidedly
not convinced that the majority's facile "trump" via
the Controlled Substances Act ("CSA") works,
because, among other reasons, the supposed tension
relied upon does not exist.
I therefore would not decide the case on the broad
ground that medical marijuana users are not protected
by the ADA in any circumstance. And although, in the
end, I might well be inclined to agree with the result
27a
the majority reaches on the narrower basis that the
particular claim made here is not cognizable, it is not
appropriate at this juncture to reach that question.
I therefore respectfully dissent.
1. Statutory Text
At the heart of this case is 12210(d)(1) of the ADA,
which defines "illegal use of drugs" as the use of drugs,
the possession or distribution of which is unlawful
under the Controlled Substances Act. Such term does
not include the use of a drug taken under supervision
by a licensed health care professional, or other uses
authorized by the Controlled Substances Act or other
provisions of Federal law.
42 U.S.C. 12210(d)(1). James and the other plaintiffs
(collecti vely, "James") argue that the first clause
the second sentence carves out their marijuana lise,
which is under the supervision of a doctor
compliance with California law. The Cities, on the
other hand, read the statute as a single
exception-for drug use authorized the CSA-and
argue that the first clause should be as excepting
drug use under supervision of a doctor only when that
use complies with the CSA.
Although 12210(d)(1) is not entirely clear, James has
very much the better reading of the statutory
language. In James's view, the phrases "use of a drug
taken under supervision by a licensed health care
professional" and "other uses authorized by the
[CSA]" create two dijje'tent exceptions, so that the
Printed with FinePrint - purchase at www.fineprint.com
28a
ADA protects use of drugs under superVISIOn of a
doctor even when that use is not authorized by the
CSA. If Congress intended to carve out only drug use
authorized by the CSA, after all, the entire first
clause-"the use of a drug under supervision by a
licensed health care professional"-would have been
unnecessary.
a. The use of
The Cities argue, and the district court held, that
J ames's renders the word "other" redundant,
since could have more clearly and concisely
the meaning of two distinct exceptions by
leaving it out. Under this view, "other" indicates that
the exception contained in the first clause, for uses
supervised by a doctor, is meant to be a subset of the
exception in the second clause, and is included only for
clarification and emphasis. This interpretation would,
oddly, prefer a minor redundancy-the word "other"-
over a major one-the entire first phrase of the second
sentence.
Moreover, the word "other" is not necessarily
redundant at all. It could be read to indicate that use
under supervision of a doctor is meant to be a category
of uses entirely subsumed by the larger category of
uses authorized by the CSA, but this is not the only
possible interpretation. Put another way, omitting the
word "other" entirely would certainly have compelled
the reading James advances, but its presence does not
invalidate her interpretation. There is, after all, a
middle ground between these two readings: The two
exceptions could be entirely separate categories of
29a
uses, or, as the Cities see them, entirely overlapping,
with the former a subset of the latter.
But the two clauses could also be seen as partially
overlapping, with the group of uses supervised by a
doctor partially included within the set of uses
authorized by the CSA but also partially independent,
encompassing in addition a set of uses not authorized
by the CSA. This reading strikes me as the most
sensible.
Under this interpretation, "other" is not redundant.
Instead, it accurately reflects the overlap. Were the
"other" not there, the exception would have divided
the relevant universe into two non-overlapping sets.
Yet, in fact the CSA authorizes some (but not all) uses
of "drugs taken under supervision of a licensed health
care professional." The "other" serves to signal that
there is no strict dichotomy between the two phrases,
as the bulk of the CSA-authorized uses are within
broader set covered by the first phrase.
1
b. The use of a comma
There is also a third clause, "or other ptovisions of
Federal law." The CSA is clearly a provision of
Federal law, meaning that this second "other" is being
used to indicate that "uses authorized by the [CSA]" is
a subset of "provisions of Federal law." The Cities
argue that Congress used the first "other" in the same
way, suggesting a kind of three-colored bull's eye, in
which use supervised by a doctor is a subset of use
authorized by the CSA, which in turn is a subset of use
authorized by Federal law.
Printed with FinePrint - purchase at www.fineprint.com
30a
This argument runs aground of the last antecedent
principle to which the majority refers, Maj. Op. at
13067-68 n.7 (citing Barnhart v. Thomas, 540 U.S. 20,
26 (2003)); see also Jama v. ICE, 543 U.S. 335, 343
(2005); Nw. Forest Res. Council v. Glickman, 82 F.3d
825, 832-33 (9th Cir. 1966). The rule states: "[AJ
limiting clause or phrase should ordinarily be read as
modifying only noun or phrase . . . that it
immediately " Jama, 543 U.S. at 343. Justice
Scalia's Barnhart is instructive:
for example, the case of parents who,
leaving their teenage son alone in the
for the weekend, warn him, "You will be
punished if you throw a party or engage in any
other activity that damages the house." If the
son nevertheless throws a party and is caught,
he should hardly be able to avoid punishment by
arguing that the house was not damaged.
Barnhart, 540 U.S. at 27. Notably, Justice Scalia's
example has the word "other" in a similar role to that I
posit here, and does not condemn it as redundant.
It is true, as the majority notes, that "The rule of the
last antecedent . . . is not an absolute and can
assuredly be overcome by other indicia of meaning."
United States v. Hayes, 555 U.S. 415, 425 (2009)
(internal quotation marks omitted). But here, the
comma that separates the first and second clauses, as
well as the grammatical infelicity of the syntax the
Cities' interpretation posits, reinforce the application
of the last antecedent principle. The disjunctive "or"
separating the first two clauses after the comma
31a
suggests categories at least partially distinct,
contrast to the second use of "or," which is not
preceded by a comma. The Cities' reading requires
jumping over the comma, so that the phrase
"authorized by the [CSA] or other provisions of
Federal law" modifies "a drug taken under supervision
by a licensed health care professional." But in the
English language, modifiers at the ends of phrases do
not usually leapfrog over commas. See The Chicago
Manual of Style 6.31 (16th ed. 2010) ("A dependent
clause that follows a main clause should not be
preceded by a comma if it is restrictive, that is,
essential to the meaning of the main clause."). And
here, ignoring the comma and tacking the modifier
onto the phrase before the comma yields an
exceedingly awkward-indeed, incoherent-locution:
"such term does not include the use of a drug taken
under superVISIOn by a licensed health care
professional ... authorized by the [CSA] .... "
More sensibly, the comma was added to reinforce
understanding that the first phrase is in
itself, while "uses" other than those' medical
supervision must be authorized by federal law. The
comma therefore indicates that the of uses
described by the first clause is not entirely subsumed
by the second clause, substituting for an implicit "if" in
the second clause expressing this lack of total overlap.
The sentence thus excepts (1) all supervised uses and
(2) other uses as well, if authorized by the CSA or
other federal law.
This reading of the statute is, on balance, considerably
more persuasive as a matter of grammar and syntax
Printed with FinePrint - purchase at www.fineprint.com
32a
than the reading advanced by the Cities. It minimizes
the redundancy problem, accords with the last
antecedent principle and the use of the word "other,"
avoids an awkward syntax, and accounts for the
presence of the comma before "other uses."
2. Legislative History
J ames' reading of statute also accords much better
with the overall thrust of the legislative history. That
history, while entirely without ambiguity, strongly
supports interpretation.
a.Evolution of the exception
As the majority observes, Congress replaced a draft of
exception that required that use of drugs be
"pursuant to a valid prescription," S. 933, 101st Congo
512(b), with the broader language eventually
enacted. The original language provided that "[t]he
term 'illegal drugs' does not mean the use of a
controlled substance pursuant to a valid prescription
or other uses authorized by the Controlled Substances
Act or other provisions of Federal law," S. 933, 101st
Congo 512(b)(as passed by the Senate, Sept. 7, 1989)
(emphasis added), while the currently in force revision,
adopted by the House in May of 1990 and ultimately
chosen over the Senate version in conference, H.R.
Rep. No. 101-596, at 5 (1990) (Conf. Rep.), reprinted in
1990 U.S.C.C.A.N. 565, 566, reads "[s]uch term does
not include the use of a drug taken under supervision
by a licensed health care professional, or other uses
authorized by the Controlled Substances Act or other
33a
prOVISIOns of federal law." 42 U.S.C. 12210(d)(1)
(emphasis added).
Critically, the House Committee Report restates the
exception, once amended, in precisely the cumulative
manner I have suggested most accords with the
statutory language:
"The term 'illegal use of drugs' does not include the
use of controlled substances, including experimental
drugs, taken under the supervision of a licensed health
care professional. It also does not include uses
authorized by the [CSA] or other provisions of Federal
law." H.R. Rep. No. 101-485, pt. 3, at 75 (1990). This
summary is in no way ambiguous, and indicates at
least that members of the House familiar with the
statutory language understood it in the manner that,
for reasons I have explained, most accords with
ordinary principles of grammar and syntax.
2
b. Congressional awareness of medical marijuana
The majority discounts any significance way the
current language is described relevant
Committee report, observing that voters
did not pass Prop. 215 until 1996 and that there were
no state laws in 1990 allowing for professionally
supervised use of drugs in a manner inconsistent with
the CSA. Congress would not have carefully drafted
the exception to include non-CSA authorized medically
supervised uses, the majority posits, as no such uses
were legal under state law at the time.
Printed with FinePrint - purchase at www.fineprint.com
34a
That explanation for dismissing the best reading of the
statute and the only coherent reading of the
Committee's explanation of the statute won't wash, for
several reasons. First, while California in 1996 became
the first of the sixteen states that currently legalize
medical marijuana, the history of medical marijuana
goes back much further, so that use for medical
purposes was not unthinkable in 1990. At one time,
"almost all States . . had exceptions making lawful,
under conditions, possession of marihuana by
... persons whom the drug had been prescribed or
to whom had been given by an authorized medical
person." v. United States, 395 U.S. 6, 17 (1969).
the Federal government itself conducted
an experimental medical marijuana program from 1978
to 1992, and it continues to provide marijuana to the
surviving participants. See Conant v. Walters, 309
F.3d 629, 648 (9th Cir. 2002). The existence of these
programs indicates that medical marijuana was not a
concept utterly foreign to Congress before 1996.
Second, a deeper look at the legislative history reveals
that James's interpretation may well reflect the
particular problem Congress was addressing when it
enacted 12210. Originally, the provision that became
12210 did not exclude users of illegal drugs from the
definition of protected disabled individuals. During
hearings before the Committee on Labor and Human
Resources, Senator Harkin, the sponsor of the ADA,
faced criticism that his bill would prevent employers
from firing employees who were found to be under the
influence of drugs while at work and was therefore
inconsistent with the Drug-Free Workplace Act of
1988.3 Americans with Disabilities Act of 1989:
35a
Hearing on S. 933 Before the S. Comm. On Labor and
Human Resources, 101st Congo 40 (1989).
In response, Senator Harkin pointed out that the
provisions of the ADA were modeled after Section 504
of the Rehabilitation Act, and that his "intent was to
incorporate the policies in Section 504 as interpreted
by the Supreme Court and the Justice Department in
a recent memo prepared by the Attorney General." Id.
That memorandum, which was inserted into the
record, explained that, in the view of the Justice
Department, "[a]ny legislation must make clear that
the definition of 'handicap' does not include those who
use illegal drugs." Id. at 836. The memorandum went
on to warn that
[w]e ... do not wish to penalize those persons
who, in limited cases, are using 'controlled
substances' such as marijuana or morphine
under the supervision of medical professionals
as part of a course of treatment,
example, experimental treatment or
the side-effects of chemotherapy. persons
would fall under the same as those
who are users of legal drugs.
Id. at 837-38. During the subsequent debates in the
Senate, the amendment quoted above, which used the
term "pursuant to a valid prescription" and lacked the
crucial comma, was introduced by Senator Helms. 135
Congo Rec. S10775 (Sept. 7, 1989). It was, as already
explained, amended to include language closer to that
used in the Justice Department Memorandum-
"supervision of medical professionals." A
Printed with FinePrint - purchase at www.fineprint.com
36a
memorandum from the Justice Department certainly
doesn't provide irrefutable proof of the correct
interpretation of statutory text Congress had not yet
adopted. But it does indicate that the issue of medical
marijuana was at least on the federal government's,
and Congress's, radar and not, as the majority would
largely have it, an unforseen revolution six years in
the future.
Further, as the wording of the exception was
altered in the House from the version that had earlier
passed Senate. The majority focuses on the
change from "pursuant to a valid
to "taken under supervision by a licensed
health care professional," noting that the CSA
authorizes uses not pursuant to a prescription. But, for
that very reason, there was no reason to change the
wording of 512(b) of the Senate bill; "other uses
authorized by the [CSA]" were already, generically,
covered. A more likely explanation, consistent with
the House Committee Report, was the determination
to define a set of uses covered by the exception
whether or not "authorized by the [CSA]," a change
carried out by the alteration in context, syntax, and
punctuation-including the addition of the comma,
otherwise inexplicable.
The upshot is that the statutory language and history,
taken together, fit much better with James's version of
what Congress meant than the Cities'.
3. Conflict with the CSA
37a
The majority, however, instead declares a near-draw,
and then breaks it by concluding that the Cities' "is
the only interpretation that fully harmonizes the ADA
and the CSA." Maj. Op. at 13072. Not only do I
disagree with the notion that both interpretations of
the statutory language and history are equally or
almost equally viable, I also cannot buy the notion that
judges may invent the manner in which the ADA and
the CSA should be harmonized. As to users of illegal
drugs, the statute directly addresses that question.
One way or another, we must find the answer to that
harmonization by interpreting the statute, not by
applying our own notion of how the two statutes ought
to interact.
Moreover, I also cannot agree that James's reading of
the exception creates a conflict between the ADA and
the CSA so sharp as to provide useful guidance, from
outside the terms of the ADA itself, as to the
appropriate interaction of the two statutes. Nothing
the CSA addresses the civil rights of a disabled person
using drugs for medical purposes, any more than
anything in the CSA addresses whether a person
can recover in tort. Conversely, recognizing that
individuals using CSA-covered drugs are excluded
from ADA coverage does not preclude prosecuting
them under the CSA.
An analogous line of cases is instructive in this regard:
In resolving conflicts between arbitrators' awards and
notions of "public policy" gleaned from statutes, the
Supreme Court has focused on direct and specific
incompatibility, rather than on general notions
concerning the underlying purpose of competing
Printed with FinePrint - purchase at www.fineprint.com
38a
directives. United Paperworkers Union
v. Misco, 484 U.S. 29 (1987), and Eastern Associated
Coal Corporation v. United Mine Workers, 531 U.S. 57
(2000), reviewed arbitration awards reinstating
employees who had been discharged for marijuana use.
The appropriate inquiry as to the validity of the
arbitration awards, the Court noted, must be into
"explicit conflict with other 'laws and legal precedents'
rather than an of 'general considerations of
supposed interests.' " Misco, 484 U.S. at 43
(quoting W.R. Grace & Co. v. Rubber Workers, 461
U.S. 757, (1983)). Holding that no public policy
drug use was sufficiently "explicit, well
and dominant," United Mine Workers, 531
U.S. at 62, to require that individuals who illegally use
marijuana may not be employed, the Court stressed
the idea that "the question to be answered is not
whether [the employee's] drug use itself violates
public policy, but whether the agreement to reinstate
him does so." Id. at 62-63; see also Misco, 484 U.S. at
44; Southern Cal. Gas Co. v. Util. Workers Union
Local 132, 265 F.3d 787, 794-97 (9th Cir. 2001).
Similarly here, there could be no square conflict
between the CSA and the ADA were the ADA
interpreted, as I suggest, to specify that a medical
marijuana user could be a qualified person "vith a
disability and so not entirely excluded from the ADA's
protection. The CSA does not make it illegal, for
example, to employ a medical marijuana user or to
provide such a user with schooling, unemployment
benefits, or other non drug-related services.
Interpreting the ADA to require, in some
39a
circumstances, such employment or schooling or
benefits would not conflict with the CSA.
The California Supreme Court recently proceeded
from a similar recognition as to the limits of the direct
conflict concept, albeit to the opposite end. That Court
held that the Compassionate Use Act did not dictate
protection of medical marijuana users under the
state's version of the ADA. The state disability
statute, unlike the federal ADA, does not address, one
way or the other, whether medical marijuana users are
entitled to the protections of the statute. Ross v.
Raging Wire Telecomrnunications Inc., 174 P.3d 200,
204 (Cal. 2008), held that under those circumstances,
the fact that use of medical marijuana is not a criminal
offense in California does not necessarily speak to its
status under an antidiscrimination law. For the same
reason, I suggest, the opposite is also true: that use of
medical marijuana is a criminal offense under the
does not speak to its pertinence as a
factor with regard to the civil protections
accorded disabled individuals.
There is, in other words, no direct conflict , t ween the
ADA and the CSA if the ADA is as I
propose. An imagined conflict or tension should not be
dragged in, like a deus ex machina, to settle a difficult
statutory interpretation problem.
It is worth observing, in addition, that if there were a
direct conflict, it would be the ADA rather than the
CSA that would prevail, as the ADA is the later-
enacted statute. Repeals by implication are disfavored;
every effort must therefore be made to make both
Printed with FinePrint - purchase at www.fineprint.com
40a
statutes operative within their realm, rather than
declaring a clash. Watt v. Alaska, 451 U.S. 259, 267
(1981). Avoiding a clash by having the later statute
bow to the earlier one, when the two address different
problems and so can coexist without difficulty, is not
harmonization, but hegemony through prior
enactment.
N or am I by the assertion that my
interpretation statutory exception "would allow
a doctor t'o\ the use of any controlled
cocaine or heroin." Maj. Op. at
13074flhe A\oA does not address the practice of
12210 only excepts use pursuant to
by a "licensed health care professional."
Nothing in California law, or, so far as I am aware, the
law of any other state, permits doctors to encourage
the use of heroin; a doctor who does so is unlikely to
remain "licensed" for very long, and so the scenario is
unlikely to occur. In contrast, California, which
generally licenses medical professionals, does not
penalize those who recommend medical marijuana, nor
may the federal government do so, in many instances.
See Conant, 309 F.3d at 639.
At the same time, I am dubious that the exception
upon which James relies can ultimately carry the day
in this case. We are concerned here with the Cities'
effort to exclude medical marijuana dispensaries, not
with a policy that prevents disabled individuals who
use medical marijuana from, for example, attending
school or obtaining unemployment benefits. The
ADA's definition of "individual with a disability,"
excluding those who illegally "use" drugs, and its
41a
attendant definition of "illegal use of drugs," are both
phrased in terms of "use," and do not address those
who distribute or sell drugs.
The definition of "illegal use of drugs" applies equally
to the ADA's employment provisions. See 42 U .S.C.
12111(6). That exception, if read as I suggest, would
preclude employers from refusing to hire otherwise
qualified disabled individuals who use medical
marijuana, as long as doing so did not interfere with
their ability to carry out their duties safely. The
legislative history quoted above suggests that
Congress was particularly concerned with that group
of individuals, recognizing that disabled individuals
who follow their doctors' advice for dealing with their
disability should not be barred from the workplace
simply for doing so. But there is no connection
between having a disability and distributing or selling
drugs, and no preclusion in the ADA of refusing to hire
drug dealers of any stripe.
Moreover, in the absence of any statutory "''1'',,,,,,,,,
addressing ADA protection for drug mode
of analysis the majority inappropriately applies to
interpreting 12210 would have more That is,
absent any statutory prOVISIon addressing the
intersection of the two statutes, it would be proper to
hold that employers may ban from employment, and
public entities may refuse to harbor within their
borders, drug dealers who violate the CSA, as
Congress in no way indicated otherwise. That was the
mode of analysis adopted by the California Supreme
Court in Ross, and which I suggest would apply under
the ADA to the question whether Title II requires the
Printed with FinePrint - purchase at www.fineprint.com
42a
Cities to allow the distribution-as opposed to the
use-of medical marijuana.
Deciding that question is, however, premature at this
juncture. The only basis on which the preliminary
injunction was denied was the district court's
conclusion that James was not within the group of
disabled individuals protected by Title II of the ADA.
For now, I would simply decide that question, holding
that 12210 not exclude James and the other
plaintiffs the class of individuals protected by the
ADA, and for further proceedings.
Conclusion
While 12210(d)(1) has a degree of ambiguity, it is
most naturally read as carving out plaintiffs' medical
marijuana use, which is "under supervision by a
licensed health care professional," from the ADA's
"illegal use of drugs" exception. The legislative history
provides further support for this interpretation. At
the same time, it seems most likely that Congress did
not intend the ADA to require the Cities to permit
marijuana dispensaries, which remain illegal under the
CSA, within their borders, as the ADA provision at
issue here is directed at personal use rather than
distribution. I therefore dissent with regard to Part I
of the majority opinion, and would remand for ultimate
consideration on the merits of whether James has
alleged a viable cause of action with regard to the
distribution of drugs that are illegal under the CSA. I
concur in the remainder of the majority opinion.
Footnotes
43a
1 There is at least one CSA-authorized use that does
not involve medicalsupervision. See 21 U.S.C. 829(c).
2This is not the place to enter into the contemporary
debates about the usefulness of legislative history in
general, and of committee reports in particular.
Compare Exxon Mobil Corp. v. Allapattah Services,
Inc., 545 U.S. 546, 568 (2005) (Kennedy, J.) ("[J]udicial
reliance on legislative materials like committee
reports ... may give unrepresentative committee
members-or, worse yet, unelected staffers and
lobbyists-both the power and the incentive to
attempt strategic manipulations of legislative history.
. . .") with id. at 575-76 (Stevens, J., dissenting)
("[C]ommittee reports are normally considered the
authoritative explication of a statute's text and
purposes .... ") (citing Garcia v. United States, 469
U.S. 70, 76 (1984)). Current Supreme Court precedent
does permit consideration of both where a statute is
ambiguous, as it is here. See BedRoc Ltd. v. Unite

States, 541 U.S. 1 !6, 187 n.8 (2004).
statements made In the course of
"'" v
consideration are most useful where, as do
not in terms declare any
precept. Such self-conscious declarations indeed
subject to manipulation by interest and may
represent a backdoor way to establish principles that
would have failed if included directly in the statute.
See Exxon Mobil, 545 U.S. at 568. But statutory
interpretation is aided rather than impeded by such
clues as one can find in the legislative materials
concerning how the legislators considering the bill
were speaking about the statute at hand. Ambiguous
language can take on a more definite meaning in a
particular milieu. As a result, that sensitivity to the
Printed with FinePrint - purchase at www.fineprint.com
44a
use of language while the bill is being considered can
illuminate apparent imprecisions in the later-enacted
statute. Pursuit of such a clarification is, to my mind,
the appropriate use of the bill sequence, hearings, and
Committee report on which I here rely.
3The Drug-Free Workplace Act requires that
government contractors ensure that their employees
do not manufactulie , distribute, dispense, possess, or

use at work. See 41 U.S.C.
"-'" ""
8101-8106o N
45a
"0"
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 10-0402 AG (MLGx)
Date April 30, 2010
Title JAMES v. CITY OF COSTA MESA, ET AL.
Present: The Honorable
ANDREW J. GUILFORD
Lisa Bredahl
Deputy Clerk
Not Present
Court Reporter / Recorder
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Issues relating to medical a focus in
today's culture. These issues have engrossed our
citizens, scholars, and officials in many debates. Should
California let seriously ill citizens use marijuana to
ease their pain? See Cal. Health & Safety Code
11362.5 (codifying Proposition 215, also known as the
Compassionate Use Act, where California's citizens
answered "yes"). May Congress ban private
consumption of medical marijuana? See Gonzales v.
Raich, 545 U.S. 1 (2005) (answering "yes"). Should
Printed with FinePrint - purchase at www.fineprint.com
46a
federal agencies vigorously enforce this ban against
persons using marijuana in compliance with state law?
See Memorandum from Deputy Attorney General
David W. Ogden to Selected United States Attorneys
(October 19, 2009) (answering "no," and stating that
"prosecution of individuals with cancer or other
serious illnesses who use marijuana as part of a
recommended treatment regimen consistent with
applicable .. is unlikely to be an efficient
use of resources."), available at


arguments in this case stimulate
on many other questions concerning medical

marijuana, the rights of the seriously ill, and the
wterplay between federal, state, and municipal law.
Were our federal statutes written differently, the
Court would have the chance to contribute to the
growing body of scholarship on these questions. But
the Court's analysis today is limited to a narrow issue
of statutory interpretation.
Plaintiffs Marla James, Wayne Washington, James
Armantrout, and Charles Daniel Dejong (collectively
"Plaintiffs") seek to prevent Defendant City of Costa
Mesa and Defendant City of Lake Forest (collectively
"Defendants") from shutting down medical marijuana
collectives. Plaintiffs filed a motion for a preliminary
injunction ("Motion"). In the Motion, Plaintiffs argue
that the Americans with Disabilities Act ("ADA")
gives disabled citizens a federally protected right to
use medical marijuana if such use is legal under state
law and done with appropriate supervision. They then
47a
argue that they will suffer irreparable harm absent a
preliminary injunction, and that the balance of equities
and the public interest weigh in favor of a preliminary
injunction.
After considering all papers and arguments submitted,
the Court finds that the text of the ADA is dispositive.
Plaintiffs' argument under the ADA fails, so the Court
DENIES the Motion without reaching issues of
irreparable harm, the balance of the equities, or the
public interest.
PRELIMINARY MATTERS
Defendant City of Costa Mesa has submitted
numerous evidentiary objections. In motions with
numerous objections, "it is often unnecessary and
impractical for a court to methodically scrutinize each
objection and give a full analysis of each argument
raised." Doe v. Starbucks, Inc., No. SACV 08-0582
(CWx), 2009 WL 5183773, at *1 (C.D. Cal. 18,
2009). This is especially true where, as here, of
the objections are boilerplate of
evidentiary principles or blanket objections without
analysis applied to specific items of " I d.
Here, the Court1s analysis does not rely on most of the
evidence under objection. Further, a district court
"may give even inadmissible evidence some weight
when to do so serves the purpose of preventing
irreparable harm before trial." Flynt Distrib. Co., Inc.
v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984).
Accordingly, the objections are OVERRULED, and
Printed with FinePrint - purchase at www.fineprint.com
48a
the evidence submitted shall be given its due weight
for the purposes of this Motion.
BACKGROUND AND FINDINGS
Plaintiffs are disabled individuals living in various
cities of Orange County. (CompI. They have
recommendations their doctors to use medical
marijuana. 3-5.) Marijuana gives Plaintiffs
"a measure [from] the condition[s] that limit"
major life (Declaration of Marla James
("James
their medical marijuana, Plaintiffs are
members of marijuana collectives in Costa Mesa and
Lake Forest. (James Decl. 9, Declaration of Wayne
Washington ("Washington Decl.") 9, Declaration of
James Armantrout ("Armantrout Decl.") 9,
Declaration of Charles Daniel DeJong ("DeJong
Decl.") 9). Plaintiffs are physically incapable of
growing marijuana on their own. (CompI. 7.)
Defendants have taken actions prohibiting medical
marijuana distribution within city limits. Defendant
City of Costa Mesa passed Ordinance 05-11 that
"prohibit[s] medical marijuana dispensaries in order to
promote the health, safety, morals, and general
welfare of the residents and businesses . . . ." This
ordinance zoned out all marijuana dispensaries. Costa
Mesa Municipal Code 13-6, 13-30. Throughout
March, Plaintiffs allege that Defendant Costa Mesa
issued "48-hour Cease and Desist Orders." (CompI.
18.) The parties have not submitted these notices, so
49a
the precise details of the notices are not before the
Court.
Defendant City of Lake Forest filed several lawsuits
in the Orange County Superior Court against
marijuana dispensaries. (Declaration of Laura Dahl
("Dahl Decl.") ~ ~ 3, 7.) The Superior Court
consolidated these cases into City of Lake Forest v.
Mark Moen, et al., No. 30-2009 00298887. (Dahl Decl. ~
6.) On February 8, Defendant Lake Forest filed
motions for multiple preliminary injunctions in the
Lake Forest case seeking to "enjoin ongoing violations
of the Lake Forest Municipal Code," arguing that the
marijuana collectives are a nuisance per se. (Dahl Decl.
~ 7.) To the Court's knowledge, these motions have not
yet been decided. (Dahl Decl. ~ ~ 7-10.)
Additionally, Plaintiffs fear going to marijuana
collectives because they have "seen and heard media
articles where the police ... have raided operating
marijuana collectives and detained collective
who were at the collective obtaining
marijuana at the time . . . ." ~ 15,
Washington Decl. ~ 14, Armantrout Decl. ~ 15, DeJong
Decl. ~ 14.)
Plaintiffs claim a violation of the ADA. Specifically,
Plaintiffs seek a reasonable accommodation from
Defendants' zoning laws and policies to obtain access
to medical marijuana to treat their disabilities.
Plaintiffs moved for a preliminary injunction, seeking
to prevent Defendants from enforcing the 48-hour
Printed with FinePrint - purchase at www.fineprint.com
50a
Cease and Desist notices and Costa Mesa Ordinance
05-11.
Further, Plaintiffs seek to stay all zoning, nuisance, or
civil actions against marijuana collectives and prohibit
Defendants from engaging in police actions targeting
medical marijuana collectives unless specific illegal
activity is shown.
LEGAL STANDARD
A preliminary injunction is a provisional remedy
final disposition of the litigation. Its
to preserve the status quo and prevent
irreparable loss of rights before judgment. Sierra On-
Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415,
1422 (9th Cir. 1984). It is a "drastic and extraordinary
remedy that is not to be routinely "A plaintiff seeking
a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest." Winter v.
NRDC, Inc., 129 S. Ct. 365, 374 (2008).
ANALYSIS AND CONCLUSIONS
Plaintiffs allege one claim for relief under the ADA.
The ADA only protects "qualified individuals with a
disability." 42 U.S.C. 12112(a). Here, Plaintiffs suffer
from various ailments that Defendants do not dispute.
Defendants contend that, although Plaintiffs are
disabled, they are not qualified individuals under the
51a
ADA. An "individual with a disability" protected
under the ADA "does not include an individual who is
currently engaging in the illegal use of drugs, when
the covered entity acts on the basis of such use." 42
U.S.C. 12210(a). Here, Plaintiffs seek as a reasonable
accommodation access to the drug marijuana to treat
their disabilities, despite marijuana being a controlled
substance under the Controlled Substances Act. 21
U.S.C. 812.
Plaintiffs argue that the words "illegal use of drugs" in
Section 12210(a) do not apply to Plaintiffs'
circumstances because their use of marijuana is
recommended by doctors under the California
Compassionate Use Act. On the other hand,
Defendants argue that marijuana cannot be legally
prescribed under the Controlled Substances Act and
thus the exception cannot apply.
At this stage, the Court agrees
Marijuana is a Schedule I controlled
the Controlled Substan.ces Act, and under it
currently has no medIcal purpose.
812(b)(1)(B) (Schedule I drugs hav\e\. "n<U currently
accepted medical use in United
States"); 812(c) (listing "marihuana" as a Schedule I
controlled substance). Although some illegal drugs,
such as opium, may be prescribed under the
Controlled Substances Act, marijuana cannot be
prescribed because it is a Schedule I drug. See 21
U.S.C. 829 (allowing for prescriptions of only
Schedule II through Schedule V drugs). Thus, for
Plaintiffs' argument to succeed the ADA must
authorize, independent of the Controlled Substances
Printed with FinePrint - purchase at www.fineprint.com
52a
Act, Plaintiffs' use of marijuana under a doctor's
supervision. But the ADA gives no such authorization.
Plaintiffs' argument relies on an analysis of words in
ADA Section 12210(d) which defines "illegal use of
drugs" as follows:
the use of dw gs, the possession or distribution
of whichd:)\ unlawful under the Controlled
use 'Of a 'Ufug taken under by a
health care professional, or other uses
by the Controlled Substances Act or
<r "' provisions of Federal law.
42 U.S.C. 12210(d) (emphasis added). The clause
Blaintiffs rely on in Section 12210(d)("such term does
not include the use of a drug taken under supervision
by a licensed health care professional") must be read in
context with the next clause in sequence. That clause
("or other uses authorized by the Controlled
Substances Act") shows that the preceding clause also
requires authorization from the Controlled Substances
Act, which, as established above, exists for some
drugs, but not marijuana.
Plaintiffs argue that use of the conjunctive "or"
combined with the comma after "professional" means
that both are independent clauses, and satisfaction of
either clause should trigger the exception to illegal
drug use. Plaintiffs support their argument by noting
that the Court must "give effect, if possible, to every
clause and word of a statute, avoiding, if it may be, any
construction which implies that the legislature was
53a
ignorant of the language it employed." See Astoria
Federal Savings & Loan Ass'n v. So limino , 501 U.S.
104, 112 (1991); see also Baily v. United States, 516
U.S. 137 146 (1995) ("we assume that Congress used
two terms because it intended each term to have a
particular, non superfluous meaning").
The problem with Plaintiffs' construction is that it
gives no effect to the word "other" in Section 12210(d).
If the phrase was written without the word "other" -
"[s]uch term does not include the use of a drug taken
under superVISlOn by a licensed health care
professional, or uses authorized by the Controlled
Substances Act" - then the two clauses are
independent. But as written, the word "other"
depends on the first clause, and encompasses all of the
"other" authorized uses in the Controlled Substances
Act besides a prescription by a doctor. Neither clause
is superfluous. Only when both clauses are taken
together are all the authorized uses under
Controlled Substances Act included in the ADA
exception.
The Court has found only one other court analyzed
this specific exception for illegal drug use under the
ADA, and it reached the same conclusion. See Barbe?"
v. Gonzales, No. CV-05-0173-EFS, 2005 WL 1607189
at *4 (E.D. Wash. July 1, 2005). The Court agrees with
Barber and holds that the exception applies only to
authorized uses under the Controlled Substance Act or
other Federal laws.
Because marijuana cannot be prescribed under the
ADA, the Court finds no likelihood of success on the
Printed with FinePrint - purchase at www.fineprint.com
54a
merits. With this finding, the Court need not reach the
other elements listed in Winte?"s, 129 S. Ct. at 374
(2008).
DISPOSITION
Plaintiffs' Motion for preliminary injunction IS
DENIED.

You might also like