                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 15 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

SACRAMENTO NONPROFIT                             No. 12-15991
COLLECTIVE, DBA El Camino Wellness
Center, a mutual benefit non-profit              D.C. No. 2:11-cv-02939-GEB-
collective; RYAN LANDERS, an                     EFB
individual,

              Plaintiffs - Appellants,           MEMORANDUM*

  v.

ERIC H. HOLDER, Jr., Attorney General;
MICHELLE LEONHART, Administrator
of the Drug Enforcement Administration;
BENJAMIN B. WAGNER, U.S. Attorney
for the Eastern District,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Garland E. Burrell, Jr., Senior District Judge, Presiding

ALTERNATIVE COMMUNITY                            No. 12-55775
HEALTH CARE COOPERATIVE, INC.,
a not-for-profit cooperative corporation,        D.C. No. 3:11-cv-02585-DMS-
DBA Cloud 9 Cooperative; LIGHT THE               BGS
WAY, a mutual benefit non-profit

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
collective; MOTHER EARTH’S
ALTERNATIVE HEALING
COOPERATIVE, INC., a not-for-profit
cooperative corporation; AMERICAN
TREATMENT ADVANCEMENT
COOPERATIVE, INC., a mutual benefit
non-profit cooperative corporation; JOY
GREENFIELD, an individual,

            Plaintiffs - Appellants,

 v.

ERIC H. HOLDER, Jr., Attorney General;
MICHELLE LEONHARTDEF,
Administrator of the Drug Enforcement
Administration; LAURA E. DUFFY, U.S.
Attorney for the Southern District of
California,

            Defendants - Appellees.


                 Appeal from the United States District Court
                    for the Southern District of California
                  Dana M. Sabraw, District Judge, Presiding

MARIN ALLIANCE FOR MEDICAL                   No. 12-16710
MARIJUANA, a not-for-profit
association; JOHN D’AMATO, an                D.C. No. 4:11-cv-05349-SBA
individual; MEDITHRIVE, INC., a not-
for-profit cooperative corporation, DBA
MediThrive Cooperative; THE JANE
PLOTITSA SHELTER TRUST, a
revocable living trust; THE FELM
TRUST, an irrevocable living trust; THE


                                       2
DIVINITY TREE PATIENT’S
WELLNESS COOPERATIVE, INC., a
not-for-profit cooperative corporation,

               Plaintiffs - Appellants,

  v.

ERIC H. HOLDER, Jr., Attorney General;
MICHELLE LEONHART, Administrator
of the Drug Enforcement Agency;
MELINDA HAAG, U.S. Attorney for the
Northern District of California,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
             Saundra Brown Armstrong, Senior District Judge, Presiding

                            Submitted January 13, 2014**
                              San Francisco, California

Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.

       In this consolidated appeal, Plaintiffs-Appellants Sacramento Nonprofit

Collective and other distributors of medical marijuana as well as patients and

landlords of the marijuana distributors (collectively “Appellants”) appeal the

decisions of three different California district courts dismissing their actions for


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           3
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The

lawsuits alleged violations of Appellants’ Fifth and Ninth Amendment rights and

raised a judicial estoppel argument. Appellants seek, through injunctive relief

against various federal law enforcement authorities, to prevent the federal

prosecution of both cooperatives operating marijuana dispensaries pursuant to

California state law as well as other entities affiliated with the marijuana

dispensaries (such as their landlords). We review de novo the dismissal of a

complaint by the district court pursuant to Federal Rule of Civil Procedure

12(b)(6). W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 975 (9th Cir. 2012).

And we review “a district court’s application of judicial estoppel . . . for abuse of

discretion.” Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d

983, 992 (9th Cir. 2012).

      Because “the legal issues on appeal are fairly raised by” at least one

Appellant with standing, we “need not consider the standing” of John D’Amato

and Ryan Landers. Comite de Jornaleros de Redondo Beach v. City of Redondo

Beach, 657 F.3d 936, 943–44 (9th Cir. 2011) (en banc) (internal quotation marks

omitted).

      Appellants contend that the Ninth Amendment and the substantive due

process component of the Fifth Amendment together protect a fundamental right to


                                           4
“distribute, possess and use medical cannabis” in compliance with California state

law. But this argument is squarely foreclosed by Raich v. Gonzales (Raich II), 500

F.3d 850, 864–66 (9th Cir. 2007). In Raich II, we rejected the notion that “the Due

Process Clause embraces a right to make a life-shaping decision on a physician’s

advice to use medical marijuana . . . when all other prescribed medications and

remedies have failed.” Id. Although we noted in Raich II that the passage of time

coupled with changing social views may alter the fundamental rights analysis,1 id.

at 865–66, a prior holding of this court may only be overturned through en banc

consideration, see United States v. Parker, 651 F.3d 1180, 1184 (9th Cir. 2011).

      Second, Appellants allege that federal enforcement of the CSA violates

Equal Protection because the federal ban on medical marijuana, “while permitting

prescription drugs[,] has no rational basis.” Assuming that Appellants did not

waive this claim by failing to specifically raise it in their complaints, see Raich II,

500 F.3d at 868, the argument is foreclosed by our prior precedent, see, e.g.,

United States v. Miroyan, 577 F.2d 489, 495 (9th Cir. 1978) (rejecting through

citation to supporting case law the argument that “[m]arijuana . . . cannot rationally

      1
         Although the use of medical marijuana is more accepted today than it was
in 2007, we are unwilling to declare that legal recognition of such a right has
reached the point where it should be removed from “the arena of public debate and
legislative action” and deemed “implicit in the concept of ordered liberty.” Raich
II, 500 F.3d at 866.

                                           5
be deemed to meet the criteria required for a Schedule I controlled substance

[under the CSA]”), overruled on other grounds as recognized by United States v.

Pineda-Moreno, 688 F.3d 1087, 1090–91 (9th Cir. 2012); see also James v. City of

Costa Mesa, 700 F.3d 394, 405 (9th Cir. 2012) (rejecting plaintiffs’ equal

protection argument that implementation of a D.C. medical marijuana initiative

resulted in unequal treatment of D.C. and California residents by broadly noting

that “[l]ocal decriminalization notwithstanding, the unambiguous federal

prohibitions on medical marijuana use set forth in the CSA continue to apply in

[all] jurisdictions”).

       Third, Appellants claim that the Government is judicially estopped from

enforcing the CSA because in a prior lawsuit involving different plaintiffs, the

parties entered into a joint stipulation to dismiss the sole remaining claim in that

case—that the Tenth Amendment barred federal enforcement of the CSA with

respect to medical marijuana use under California law—in light of the Ogden

Memorandum.2 But the Appellants over-read the statements made in both the

Ogden Memorandum and during the course of the prior litigation; at no point did



       2
        Appellants assert that the Medical Marijuana Guidance document referred
to by the district court in the prior litigation is somehow different from the Ogden
Memorandum. But the joint stipulation in the prior case makes clear that the
document referred to is the Ogden Memorandum.

                                           6
the Government promise not to enforce the CSA. Appellants therefore identify no

clear inconsistency between the Government’s current and prior positions as is

required to invoke the doctrine of judicial estoppel. New Hampshire v. Maine, 532

U.S. 742, 750–51 (2001).

          Nor do the Appellants demonstrate that the Government misled the court or

would derive an unfair advantage if not estopped. Id. (describing these as other

requirements for judicial estoppel). Appellants also do not allege that the

Government engaged in fraud. See Milton H. Greene Archives, Inc., 692 F.3d at

993–94 (noting that chicanery or fraud on the court is an important factor of

judicial estoppel even if it is not a requisite element). Estoppel in this case “would

compromise a governmental interest in enforcing the law” and would therefore be

inappropriate. New Hampshire, 532 U.S. at 755.

          The district courts properly dismissed Appellants’ request for injunctive

relief.

          AFFIRMED.




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