Arthur S. WEST, Appellant v. Loretta E. LYNCH, Attorney General of the United States, et al., Appellees
No. 15-5107
United States Court of Appeals, District of Columbia Circuit.
Argued December 8, 2016. Decided January 18, 2017
845 F.3d 1228
For the foregoing reasons, the portion of Bartko‘s petition that challenges the investment adviser, municipal securities dealer and transfer agent bar is granted.10 The remainder of Bartko‘s petition is denied.
So ordered.
Notes
David M. Zionts, Washington, DC, appointed by the court, argued the cause as amicus curiae in support of the appellant. Robert A. Long, Jr., New York, NY, was with him on the briefs.
Arthur S. West, pro se, filed the briefs for the appellant.
Jeffrey T. Even, Deputy Solicitor General, Office of the Attorney General for the State of Washington, argued the cause for appellees Inslee and Foster. Robert W. Ferguson, Attorney General, was with him on the brief.
Before: HENDERSON, TATEL and MILLETT, Circuit Judges.
The Constitution limits our “judicial Power” to “Cases” and “Controversies,”
West lives in the state of Washington, which since the late 1990s has permitted the use of marijuana for medical purposes. He holds a medical marijuana authorization and uses marijuana for an undisclosed medical reason. He opposes the legalization of recreational marijuana, however, which Washington approved in 20121 through a ballot initiative. In West‘s view, the initiative and subsequent amendments are bad for the state‘s environment and for medical marijuana users like him.
All of Washington‘s laws governing marijuana—medical and recreational—are in tension with the Controlled Substances Act of 1970 (CSA),
The district court dismissed the complaint, concluding (inter alia) that West lacks standing. We agree. First, for his commandeering claim, West has not sufficiently alleged that setting aside the Cole Memorandum would redress his alleged injuries from the wider availability of recreational marijuana and new restrictions on medical marijuana. Second, for his NEPA claim, West has not sufficiently alleged that any adverse environmental effects of recreational marijuana on his own particularized interests are traceable to the memorandum. We therefore uphold the dismissal of his complaint.2
I. BACKGROUND
For our review, the facts are undisputed. We recite them primarily from West‘s complaint, accepting as true its well-pleaded factual allegations and drawing all reasonable inferences in West‘s favor. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). As necessary, we cull additional facts from other parts of the record. See Settles v. U.S. Parole Comm‘n, 429 F.3d 1098, 1107 (D.C. Cir. 2005) (in deciding subject matter jurisdiction, court may “consider[] facts developed in the record beyond the complaint“). Before turning to the injuries alleged in the complaint, we summarize the regulatory backdrop against which they must be evaluated.
A. WASHINGTON‘S MARIJUANA LAWS AND THE COLE MEMORANDUM
Since 1970, the CSA has made it a crime to manufacture, distribute or possess with intent to distribute controlled substances,
In early 2013, Washington Governor Jay Inslee met with a White House official to seek assurances that the federal government did not intend to “preempt[] . . . state implementation of I-502, or pursue enforcement of federal criminal laws” in Washington “for those acting legally under [state] law.” Pl.‘s Supplemental Decl. and Exs. (Decl.), Dkt. No. 16 at 81. To the same end, Governor Inslee wrote a letter to Eric Holder, then-Attorney General of the United States, summarizing the regulatory and law enforcement strategies the state planned to implement in the wake of I-502.
In a letter dated August 29, 2013, Attorney General Holder informed Governor Inslee—and Governor John Hickenlooper of Colorado, another state that had legalized the recreational use of marijuana—that “while the Department will not at this time seek to challenge your state‘s law, we will nevertheless continue to enforce the Controlled Substances Act in your state.” Decl. 71. The Attorney General also enclosed the Cole Memorandum, which was issued that same day to all United States Attorneys.
The Cole Memorandum updated marijuana-related CSA guidances earlier issued to federal prosecutors in 2009 and 2011.4 The memorandum “applies to all federal enforcement activity . . . concerning marijuana in all states.” Decl. 72. It is “solely . . . a guide to the exercise of investigative and prosecutorial discretion” and “does not alter in any way the Department‘s authority to enforce federal law . . . regardless of state law.” Id. at 75. It advises federal prosecutors “to review marijuana cases on a case-by-case basis” in deciding how to deal with “marijuana-related activity.” Id. at 74. It directs them to “weigh all available information and evidence,” including whether the activity “is demonstrably in compliance with a strong and effective state regulatory system.” Id. It declares that “enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity” unless the state‘s “regulatory structure” and “enforcement efforts” “are not sufficiently robust.” Id. That arrangement is meant to enable federal prosecutors to focus on “enforcement priorities that are particularly important to the federal government[,]” including prevention of violence, organized crime, interstate distribution, distribution to minors and use on federal property. Id. at 72-73. Finally, the
In the first few years after Washington voters approved I-502, medical marijuana and recreational marijuana were governed by two parallel strands of Washington law, neither of which mentioned the other. As noted earlier, a user of medical marijuana could grow it in a collective garden with other patients and could possess up to 24 ounces. 2011 Wash. Sess. Laws at 1353, 1355. A recreational user, by contrast, could possess only one ounce. 2013 Wash. Sess. Laws at 42, 44. In April 2015, the Washington legislature amended the two strands of law and partially pulled them together through enactment of the Cannabis Patient Protection Act (CPPA), ch. 70, 2015 Wash. Sess. Laws 287 (Apr. 24, 2015). The CPPA is “a comprehensive act that uses the regulations in place for the recreational market to provide regulation for the medical use of marijuana.” Id. at 288. In some ways, the CPPA is more restrictive than earlier laws. It repealed the provision that permitted a medical user to possess up to 24 ounces of useable marijuana. Id. at 317. Now the ordinary medical user may not possess more than three ounces purchased at retail and eight additional ounces obtained from home-grown plants. Id. at 312, 317 (codified at
B. WEST‘S COMPLAINT
In April 2014, after the Cole Memorandum was issued but before the CPPA was enacted, West filed his complaint in district court.5 His claims are difficult to discern but the crux is that, through the “policy” announced in the memorandum, the federal defendants “improperly commandeer[ed]” the state defendants and other “[s]tate officers and institutions” in violation of the Tenth Amendment and other provisions of the United States Constitution. Compl. 1-2 (citing Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)). West also claimed that all of the defendants violated NEPA by failing to prepare an environmental impact statement before undertaking the “major federal action” announced in the memorandum. Id. at 2, 17 (citing
Wider availability of recreational marijuana. West opposed I-502. He frequents a park in Olympia that is “suffering under the impacts of homelessness and casual
Limited access to medical marijuana. West holds a medical marijuana authorization, uses marijuana for medical purposes and is an “independent consultant” in that field. Compl. 4, 13. The Cole Memorandum “will” have the “foreseeable and imminent effect[s]” of limiting his access to medical marijuana and making it more expensive for him, inasmuch as state legislators have referred to the memorandum in proposing legislation “sharply regulat[ing]” medical marijuana and subjecting it to new taxes. Id. at 12-13.6
In the complaint‘s prayer for relief, West asked the district court to declare the Cole Memorandum “void” and to “compel[]” all of the defendants “to comply with . . . NEPA” in connection with the “federal . . . response” to Washington‘s legalization of recreational marijuana. Compl. 18-19. The defendants moved to dismiss the complaint, contending (inter alia) that West lacks standing. West opposed their motions but did not explain how the relief he requested would redress his alleged injuries.
C. THE DISTRICT COURT‘S DISMISSAL OF THE COMPLAINT
The district court dismissed the complaint, concluding (inter alia) that “West has not established that he has Article III standing to bring any of his various claims to federal court.” 60 F.Supp.3d 197, 200 (D.D.C. 2015); see supra. Reciting the three elements of standing—(1) a particularized injury to the plaintiff (2) traceable to the defendants’ challenged conduct and (3) redressable by a favorable decision—the court held that West did not sufficiently plead any of them. 60 F.Supp.3d at 200-03. First, in the court‘s view, West‘s allegations that the Cole Memorandum “will” produce more crime, traffic and pollution and “will” limit his access to medical marijuana were inadequate “speculative predictions.” Id. at 201 (internal quotations and emphases omitted). Second, the court reasoned that West‘s alleged injuries could not “fairly . . . be traced” to the memorandum, which was issued well after I-502 became law and which merely “allow[s]” the allegedly harmful actions of third parties not involved in the suit. Id. (internal quotation omitted). Third, the court held that because West “made no effort to show that his injuries can be redressed” in federal court, he “forfeited any arguments he might have had” on that issue. Id. at 202-03 & n.5. The court added that any claim of redressability would fail in any event because it was “purely speculative” that voiding the memorandum would “modify Washington‘s . . . allegedly harmful marijuana policies.” Id. (internal quotation omitted).7
West appealed and this Court appointed amicus curiae to present arguments in support of his position. West adopts amicus‘s arguments without asserting any additional non-frivolous contention regarding his standing.
Because “standing is not dispensed in gross” but instead may differ claim by claim, Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (internal quotation and alteration omitted), we address seriatim West‘s standing to pursue his commandeering and NEPA claims. Reviewing the district court‘s decision de novo, Teton Historic Aviation Found. v. Dep‘t of Defense, 785 F.3d 719, 724 (D.C. Cir. 2015) (per curiam), we conclude that West lacks standing to assert both claims.
A. COMMANDEERING
For West‘s claim that the Cole Memorandum “commandeer[s]” state officials and otherwise violates the Constitution, Compl. 1, 17-18, we need not decide whether he has adequately pleaded any particularized injury traceable to the memorandum because he has not sufficiently alleged redressability.8 See Huron v. Cobert, 809 F.3d 1274, 1279 (D.C. Cir. 2016) (plaintiff “bear[s] the burden of establishing each of [the] elements of standing“). “Redressability examines whether the relief sought, assuming that the court chooses to grant it, will likely alleviate the particularized injury alleged by the plaintiff.” Fla. Audubon Soc‘y v. Bentsen, 94 F.3d 658, 663-64 (D.C. Cir. 1996) (en banc) (footnote omitted). The key word is “likely.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“[I]t must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” (internal quotation omitted)). As relief on his commandeering claim, West asks that the Cole Memorandum be declared “void.” Compl. 19. But his complaint and oppositions to the defendants’ motions to dismiss did not even begin to explain how voiding the memorandum would likely clean up the park he visits; reduce crime, traffic and pollution more generally; or cause Washington to ease its restrictions on medical marijuana. Nor has amicus closed the gap in this Court.9
Amicus‘s argument in a nutshell is that redressability necessarily “follows from causation.” Amicus Br. 40; see id. at 30-31. Not so. It is true that causation and redressability “are closely related” like “two sides of a . . . coin.” Dynalantic Corp. v. Dep‘t of Defense, 115 F.3d 1012, 1017 (D.C. Cir. 1997). Like heads and tails, however, the two concepts are distinct: causa-
Our National Wrestling Coaches decision illustrates the principle. In that case, organizations representing male collegiate wrestlers and coaches challenged regulatory guidance implementing Title IX of the Education Amendments of 1972,
A similar analysis here yields a similar conclusion. The direct causes of West‘s alleged injuries—e.g., recreational users who smoke marijuana in public and state officials who restrict his access to medical marijuana—are not governed by the Cole Memorandum but by state laws he does not challenge. The memorandum governs only federal prosecutors and even as to them, only loosely: it is mere guidance channeling their prosecutorial discretion, advising them to rely on state authorities to address marijuana activity unless the state‘s regulatory system is insufficiently robust or the particular activity implicates a federal enforcement priority. If the memorandum no longer existed, would federal prosecutors expend their limited resources cracking down on the use of recreational marijuana in Washington? West‘s allegations offer no basis to conclude that they would.10 Would an uptick in federal
When conjecture is necessary, redressability is lacking. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 43-44, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). To find redressability on West‘s commandeering claim, we would have to pile conjecture on conjecture, much of it about the charging decisions of federal prosecutors. Courts do not lightly speculate how “independent actors not before [them]” might “exercise [their] broad and legitimate discretion,” Lujan, 504 U.S. at 562, 112 S.Ct. 2130 (internal quotation omitted), especially when the independent actors are federal prosecutors, United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (because prosecutors are “delegates” who help President “discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed,‘” charging decisions “‘generally rest[] entirely in [their] discretion‘” (quoting
Β. ΝΕΡΑ
Analysis of West‘s standing to assert a NEPA claim differs from that of his standing to assert a constitutional violation. But the result is the same.
A NEPA plaintiff can assert a violation of the statute “without meeting all the normal standards for redressability and immediacy.” City of Dania Beach v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 2007) (quoting Lujan, 504 U.S. at 572 n.7, 112 S.Ct. 2130) (internal quotation marks omitted). For example, the plaintiff need not allege that, if he were to succeed in enforcing a NEPA-required procedure the defendant agency did not follow, the agency‘s substantive policy would change. Id. Here, then, West need not aver that, if the Department or other defendants were ordered to prepare an environmental impact statement about the likely effects of the Cole Memorandum, the memorandum would instead be withdrawn.
A NEPA plaintiff is not absolved, however, from pleading and proving “a causal connection between the [substantive] agency action and the alleged injury.” City of Dania Beach, 485 F.3d at 1186; see Fla. Audubon Soc‘y, 94 F.3d at 664-65 (NEPA claimant or other procedural-rights plaintiff must “show[ ] a causal connection between the government action that supposedly required the disregarded procedure” and “the essential injury to the plaintiff‘s own interest“). West does not meet the causation requirement.
dum—issued to third-party prosecutors who retain discretion to prosecute marijuana activity “on a case-by-case basis,” Decl. 74—had anything to do with the alleged injuries. And just as speculation cannot establish redressability, it cannot establish causation. Clapper, 133 S.Ct. at 1147-50; Simon, 426 U.S. at 40-46, 96 S.Ct. 1917; Arpaio, 797 F.3d at 19-25.
* * * * *
For the foregoing reasons, we affirm the district court‘s dismissal of the complaint.
So ordered.
Even before the Cole Memorandum, prosecutors were advised not to “focus federal resources in [their] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” United States v. Canori, 737 F.3d 181, 183 (2d Cir. 2013) (quoting 2009 guidance) (alteration in original) (internal quotation marks omitted); see supra note 4 and accompanying text.