                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      December 12, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court

REVEREND BRYAN A. KRUMM,
CNP,

             Plaintiff - Appellant,
                                                           No. 14-2085
v.                                             (D.C. No. 1:13-CV-00562-RB-SMV)
                                                            (D. N.M.)
ERIC H. HOLDER, JR., Attorney
General of the United States; MICHELE
M. LEONHART, Administrator of the
United States Drug Enforcement
Administration; SYLVIA MATHEWS
BURWELL, Secretary United States
Department of Health and Human
Services; FRANCIS S. COLLINS, M.D.
Director of the National Institute of
Health; NORA D. VOLKOW, M.D.
Director, National Institute on Drug
Abuse; DAMON P. MARTINEZ, United
States Attorney for the District of New
Mexico,*

             Defendants - Appellees.


                            ORDER AND JUDGMENT**

*
       Pursuant to Fed. R. App. P. 43(c)(2), Sylvia Mathews Burwell is automatically
substituted for Kathleen Sebelius and Damon P. Martinez is substituted for Steven
Yarbrough.
**
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
                                                                             (continued)
Before LUCERO, GORSUCH, and MORITZ, Circuit Judges.


      Bryan A. Krumm, proceeding pro se, appeals the district court’s dismissal of

his complaint alleging the current classification of marijuana as a Schedule I

controlled substance is unlawful and unconstitutional. Asserting claims under the

Controlled Substances Act (CSA), the Religious Freedom Restoration Act (RFRA),

and the Constitution, Krumm sued the United States Attorney General; the

Administrator of the Drug Enforcement Agency (DEA); the Secretary of Health and

Human Services (HHS); the Director of the National Institutes of Health (NIH); the

Director of the National Institute on Drug Abuse (NIDA) and the United States

Attorney for the District of New Mexico. The district court dismissed the complaint

under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), ruling it lacked subject matter

jurisdiction to decide Krumm’s claim that marijuana is improperly classified. The

court concluded Krumm’s remaining claims were barred either by principles of res

judicata or because they failed to state a claim as a matter of law. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

      The CSA organizes substances into five schedules based on their potential for

abuse, accepted medical uses, accepted safety for use under medical supervision, and

estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.



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potential for psychological or physical dependence. See 21 U.S.C. § 812(b). Congress

classified marijuana as a Schedule I substance when it enacted the CSA, the schedule

for substances that have, among other factors, a high potential for abuse and “no

currently accepted medical use in treatment in the United States.” Id. § 812(b)(1)(B).

Congress vested the Attorney General with the authority to add, remove, or

reschedule controlled substances. Id. § 811(a)(2) (authorizing Attorney General to

transfer substance between schedules or “remove any drug or other substance from

the schedules if he finds that [it] does not meet the requirements for inclusion in any

schedule”). Judicial review over “[a]ll final determinations, findings and conclusions

of the Attorney General under [the CSA]” is vested exclusively in the circuit courts.

See 21 U.S.C. § 877.

      Krumm has repeatedly challenged marijuana’s Schedule I classification. In

1998, he and others raised an equal protection challenge to a government program

allowing compassionate use of marijuana by some individuals. Kuromiya v. United

States, 78 F. Supp. 2d 367, 370-74 (E.D. Pa. 1999) (finding no equal protection

violation). In 2002, he and others petitioned the Attorney General to reschedule

marijuana pursuant to § 811, claiming scientific studies indicated marijuana is

effective in treating various medical conditions (the Gettman Petition). Before the

government responded to the Gettman Petition, Krumm filed a complaint in 2008

against the Attorney General, the Acting Administrator of the DEA; the U.S.

Attorney for the District of New Mexico; and the New Mexico Attorney General,


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seeking an order compelling the federal government to reschedule marijuana.

See Krumm v. Holder, No. CIV-08-1056 JB/WDS, 2009 WL 1563381 (D. N.M. May

27, 2009) (Krumm I). The district court dismissed the Krumm I complaint, ruling it

lacked subject matter jurisdiction to issue any rescheduling order. Id. at *14. It

explained that Krumm’s exclusive remedy was to petition the Attorney General for a

rescheduling determination and to appeal any adverse ruling to the appropriate circuit

court in accordance with 21 U.S.C. § 877. Id. at **8-13. In 2011, the Attorney

General denied the Gettman Petition based on the DEA’s finding that there was no

currently accepted medical use for marijuana. The District of Columbia Circuit Court

of Appeals affirmed the Attorney General’s denial. Americans for Safe Access v.

Drug Enforcement Admin., 706 F.3d 438, 452 (D.C. Cir.) (finding DEA’s denial of

Gettman Petition was not arbitrary or capricious), cert. denied, 134 S.Ct. 267, 673

(2013). In 2010, Krumm filed another rescheduling petition with the Attorney

General. That petition remains pending.

      Krumm’s current complaint again alleges that the continued classification of

marijuana as a Schedule I substance is unlawful and unconstitutional. Further, he

renews his claim that marijuana has an accepted medical use, as evidenced by the

several states that have enacted laws authorizing the medical use of marijuana. In his

complaint, Krumm identifies himself as a certified nurse practitioner, the Director of

New Mexicans for Compassionate Use, and the Bishop of Medicine for the Zen Zion

Coptic Orthodox Church. Krumm indicates he wishes to use marijuana to alleviate


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his own suffering and those of his patients and to anoint the sick with holy anointing

oil made from cannabis. His complaint seeks: (1) an injunction forbidding the

defendants from interfering with state medical cannabis programs; (2) a judgment

declaring that the CSA cannot allow cannabis to remain in Schedule I due to its

accepted medical use; (3) a judgment declaring that the Constitution’s Equal

Protection Clause protects a state’s right to use cannabis for medical purposes;

(4) a writ of mandamus ordering the DEA to remove cannabis from Schedule I;

(5) a writ of mandamus directing HHS to appoint a panel with specified members to

evaluate whether cannabis should be rescheduled or exempted from CSA control

entirely; (6) a writ of mandamus ordering the NIH to fund studies regarding the

therapeutic use of cannabis; and (7) a writ of mandamus ordering NIDA to supply

cannabis for those studies.

      The district court ruled it lacked subject matter jurisdiction to issue a

declaratory judgment or a writ of mandamus ordering any of the defendants to

reschedule marijuana. The court pointed out that the Attorney General, through HHS

and the DEA, has exclusive authority under § 811 to reschedule controlled

substances, and judicial review over those determinations is vested exclusively in the

circuit courts under § 877, as explained in Krumm I. See also Nat’l Org. for Reform

of Marijuana Laws (NORML) v. Bell, 488 F. Supp. 123, 141 n. 43 (D.D.C. 1980)

(holding district court lacked subject matter jurisdiction to hear challenge to

administrative decision regarding reclassification under CSA). Because Krumm


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already litigated this subject-matter jurisdiction issue as well as his legal arguments

regarding the mis-scheduling of marijuana, the district court found these claims in his

current complaint to be barred by res judicata principles.

      The district court further concluded Krumm’s constitutional challenges were

barred by res judicata because he had raised, or could have raised, these claims in

Kuromiya, 78 F. Supp. 2d 367. The court also held Krumm lacked standing to enjoin

the defendants from interfering with New Mexico’s medical cannabis programs

because he alleged no facts suggesting the defendants have so interfered and he lacks

standing to seek relief on behalf of New Mexico. Additionally, the district court held

Krumm lacked standing to force HHS, the NIH or the NIDA to conduct testing and

evaluation of marijuana, or to supply marijuana for such testing. The court noted

Krumm’s objections to the DEA’s marijuana studies had already been rejected in

Americans for Safe Access, id. at 451-52.

      Finally, the district court considered and rejected Krumm’s RFRA claim that

the current classification of marijuana under the CSA violates his religious freedom

to use cannabis as a holy anointing oil. The court concluded this assertion failed to

state a claim because Krumm did not seek an exemption from the CSA based on his

religion, but rather, he sought the complete removal of marijuana from Schedule I.

The district court further “restrict[ed] [Krumm] from filing any future similar suits”

in the District of New Mexico.




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      Our review of Rule 12(b)(1) and 12(b)(6) dismissals is de novo. See Colo.

Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004) (per curiam). Because

Krumm is proceeding pro se, we construe his brief liberally, but we will not act as a

pro se litigant’s advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.

1991). On appeal, Krumm argues (1) the Attorney General and the DEA cannot

continue to classify marijuana as a Schedule I substance now that it is accepted for

medical use in many states; (2) the DEA’s failure to respond to his pending petition

to reschedule marijuana warrants relief under 5 U.S.C. § 706(1) of the Administrative

Procedure Act or the All Writs Act, 28 U.S.C. § 1651; (3) the district court erred in

dismissing his complaint and in imposing filing restrictions on him; (4) the district

court failed to address his argument that the states, not HHS, should determine

accepted medical practice; and (5) the district court had jurisdiction to consider his

claims of violations of his fundamental rights.

      We affirm the dismissal of Krumm’s complaint for substantially the same

reasons relied on by the district court in its thorough and well-reasoned memorandum

and order of March 19, 2014. The district court properly held that the principles of

res judicata, claim and issue preclusion bar all of Krumm’s claims seeking




       Krumm filed a petition for writ of mandamus asking this court to order the
DEA to respond to his petition to remove cannabis from Schedule I. We denied his
petition, ruling he had failed to demonstrate that his right to the writ was clear and
indisputable, as required for the issuance of such a writ. In Re Krumm, No. 14-2080
(10th Cir. Sept. 2, 2014).


                                          -7-
declaratory, injunctive or other relief forcing the rescheduling of marijuana under the

CSA. See San Remo Hotel, L.P. v. City & Cnty. of S.F., 545 U.S. 323, 336 n. 16

(2005) (“Under res judicata, a final judgment on the merits of an action precludes the

parties or their privies from relitigating issues that were or could have been raised in

that action. Under collateral estoppel, once a court has decided an issue of fact or law

necessary to its judgment, that decision may preclude relitigation of the issue in a suit

on a different cause of action involving a party to the first case.”). Here, Krumm has

already litigated and lost most of the claims and arguments he now asserts. To the

extent he now asserts novel constitutional and other theories in his efforts to obtain a

court order rescheduling marijuana, he could have raised these issues in Kuromiya,

Krumm I or Americans for Safe Access.

      The district court also correctly ruled that Krumm’s complaint fails to allege

facts sufficient to state a facial challenge to the CSA under RFRA. United States v.

Friday, 525 F.3d 938, 951 (10th Cir. 2008) (holding that a facial challenge under

RFRA “is one that contends the statute is impermissible in all, or at least the vast

majority, of its intended applications”) (brackets and internal quotation marks

omitted). Further, the district court properly denied Krumm’s requests for relief

under § 706(1) of the APA and for mandamus relief. See Norton v. S. Utah

Wilderness Alliance, 542 U.S. 55, 64 (2004) (holding that challenges under § 706(1)

are appropriate only when the plaintiff shows “an agency failed to take a discrete

agency action that it is required to take”) (emphasis omitted), In re Cooper Tire &


                                          -8-
Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (holding “a writ of mandamus is a

drastic remedy, and is to be invoked only in extraordinary circumstances” (internal

quotation marks omitted)).

        Finally, Krumm asserts the district court erred in barring him “from raising

fundamental rights in future proceedings.” But Krumm fails to articulate any

argument in support of this vague assertion. A party, including a pro se litigant,

waives an inadequately briefed issue, and “mere conclusory allegations with no

citations to the record or any legal authority for support” are inadequate to preserve

an issue for review. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841

(10th Cir. 2005). Krumm further suggests he should not be barred from raising a

RFRA defense should he be prosecuted for using marijuana under New Mexico laws,

in spite of federal law. However, Krumm’s complaint is unfounded since the district

court’s filing restrictions apply only to lawsuits Krumm initiates, not to any criminal

defense he may seek to raise.

        The judgment of the district court is affirmed for substantially the same

reasons set forth in the district court’s Memorandum and Order dated March 19,

2014.


                                                Entered for the Court


                                                Nancy L. Moritz
                                                Circuit Judge



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