USA. v. Oakland Cannabis Buyers

Decision Date13 September 1999
Docket Number98-17044,Nos. 98-16950,s. 98-16950
Citation190 F.3d 1109
Parties(9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OAKLAND CANNABIS BUYERS' COOPERATIVE; JEFFREY JONES, Defendant-Appellant. , and 98-17137
CourtU.S. Court of Appeals — Ninth Circuit

[Copyrighted Material Omitted] Robert A. Raich, Oakland, California; Gerald F. Uelmen, Santa Clara University School of Law, Santa Clara, California; and Annette P. Carnegie, Morrison & Foerster, San Francisco, California, for the appellants-defendants.

Mark B. Stern, Assistant Attorney General, United States Department of Justice, Washington, D.C., for the plaintiff appellee.

Appeal from the United States District Court for the Northern California; Charles R. Breyer, District Judge, Presiding. D.C. No. CV-98-00088-CRB.

Before: Mary M. Schroeder, Stephen Reinhardt, and Barry G. Silverman, Circuit Judges.

PER CURIAM:

This interlocutory appeal involves a preliminary injunction entered at the United States' request, to stop the distribution of cannabis in the wake of California's initiative supporting the medical use of marijuana. The district court held that the distribution of marijuana by certain cannabis clubs and their agents, including appellant, Oakland Cannabis Buyers' Cooperative and Jeffrey Jones (collectively "OCBC"), likely violates the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Controlled Substances Act"), 21 U.S.C. S 841(a)(1). See United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1105 (N.D. Cal. 1998). The district court also indicated that it would consider in subsequent contempt proceedings a defense that a particular distribution was justified by a medical necessity. Id. at 1102. OCBC did not appeal the district court's order enjoining the distribution of marijuana by cannabis clubs. Instead, OCBC seeks to appeal three subsequent orders: (a) an order denying OCBC's motion to dismiss the complaint on the ground that an Oakland City ordinance makes it immune from liability under 21 U.S.C. S 885(d); (b) an order subsequently purged and vacated that found OCBC in contempt of the injunction; and (c) an order denying OCBC's motion to modify the injunction to permit cannabis distribution to persons having a doctor's certificate that marijuana is a medical necessity for them.

We lack jurisdiction over the appeal from the denial of the motion to dismiss and from the contempt order that has been purged. We have jurisdiction over the appeal from the denial of the motion to modify. We do not vacate the injunction, but remand for the district court to consider modifying the order.

Denial of the Motion to Dismiss

The district court denied the defendants' motion to dismiss that was grounded in the Oakland City Council's attempt to immunize OCBC under the Controlled Substances Act. The district court held that section 885(d) of the Controlled Substances Act is intended to protect state law enforcement officials when they engage in undercover drug operations, and these defendants do not engage in such activities.

We lack jurisdiction of the appeal because the denial of a motion to dismiss is generally not appealable. See 28 U.S.C. SS 1291 & 1292 (granting appellate jurisdiction over final orders and limited interlocutory orders). The denial of the motion to dismiss is not one of the interlocutory orders that can be appealed under S 1292, and it is not a final judgment under S 1291. See, e.g., Credit Suisse v. United States Dist. Ct., 130 F.3d 1342, 1345-46 (9th Cir. 1997).

OCBC contends we have jurisdiction under 28 U.S.C. S 1292(a)(1) authorizing, inter alia, appellate jurisdiction over an interlocutory order "continuing . . . or refusing to dissolve or modify injunctions." OCBC asks us to treat the district court's denial of the motion to dismiss as, in effect, a continuance of the injunction and a refusal to dissolve it. OCBC relies upon Jung Hyun Sook v. Great Pacific Shipping Co., 632 F.2d 100, 102 n.4 (9th Cir. 1980).

The motion to dismiss in Jung Hyun Sook, however, was not a motion to dismiss the action in its entirety, but a motion intended specifically to dissolve an injunction. There the district court had enjoined the further prosecution of a Jones Act suit pending the determination of a petition to limit liability. Id. at 102. The district court's denial of the motion to dismiss the limitation of liability petition was appealable because its denial continued in effect the injunction against further prosecution of the Jones Act suit. The purpose of the motion to dismiss in that case was not to decide the merits of the litigation, but only to dissolve the injunction. See 16 Wright & Miller, Federal Practice and Procedure , S 3924.2, at 198-99 n.6 (2d ed. 1996). The motion to dismiss in this case was intended to resolve the entire dispute on the merits. While one effect of granting OCBC's motion to dismiss in this case would have been to dissolve the preliminary injunction, the broader purpose was to resolve the case in defendants' favor. The general rule barring appeals from the denial of motions to dismiss, therefore, must apply. See Credit Suisse, 130 F.3d at 1345-46 ("The district court's denial of [defendants'] motion to dismiss is not a `final decision' within the meaning of 28 U.S.C. S 1291, and it is therefore not immediately reviewable.").

Nor did the district court's denial of the motion to dismiss constitute an order "continuing" the injunction within the meaning of 28 U.S.C. S 1292(a)(1). An order that "continues" an injunction under that statute is an order that extends the duration of the injunction that would otherwise have dissolved by its own terms. See 16 Wright & Miller, supra, at 196; see also Public Serv. Co. of Colorado v. Batt, 67 F.3d 234, 23637 (9th Cir. 1995); In re Fugazy Express, Inc. , 982 F.2d 769, 777 (2d Cir. 1992).

OCBC also argues that the denial of the motion to dismiss is appealable as a "collateral order" under the theory of the Supreme Court's decision in Mitchell v. Forsyth, 472 U.S. 511 (1985). Mitchell permits appeal from orders denying immunity from suit to government officials on damage claims for violations of federal rights. Such orders are immediately reviewable because the immunity at stake is not merely an immunity from liability but an "immunity from suit" that is effectively lost if a case goes to trial. See id. at 526. Section 885(d) is not such an immunity from suit, but is on its face simply an immunity from liability. It provides that "no civil or criminal liability will be imposed" upon law enforcement officers who engage in drug activity as part of their duties. 21 U.S.C. S 885(d). Thus, OCBC can obtain effective review of its liability (or immunity) under the Controlled Substances Act after the district court has rendered a final judgment.

In addition, the order being appealed is not a "collateral order" involving an important issue separate from the merits of the lawsuit. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). The merits of the government's suit depend squarely upon whether or not OCBC is immune from liability under S 885(d).

The Contempt Order

OCBC appeals the district court's order finding it in contempt and modifying the preliminary injunction so as to empower the U.S. Marshal to seize OCBC's offices. The court neither fined nor jailed members of OCBC as a result of the contempt. The district court subsequently vacated this modification to the injunction on October 30, 1998 after OCBC told the court that it would comply with the injunction. Consequently, OCBC was permitted to re-enter its offices.

The government argues that this appeal is moot because the modification order was vacated and the contempt purged. "A long line of precedent holds that once a civil contempt order is purged, no live case or controversy remains for adjudication." Thomassen v. United States, 835 F.2d 727, 731 (9th Cir. 1987); accord In re Campbell, 628 F.2d 1260, 1261 (9th Cir. 1980). However, a party asserting that an issue is moot must demonstrate that there is no reasonable expectation that the violation will recur. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Campbell , 628 F.2d at 1261.

This court has held that a purged contempt order is moot unless there is "near certainty" that the violation will recur. Campbell, 628 F.2d at 1262. That is not the case here. In its reply brief, OCBC reiterates that it has promised the district court that it will comply with the injunction. The only way for the violation to recur is if OCBC breaks its promise. Clearly, it is not a "near certainty" that OCBC will do so. Moreover, although the purged contempt order at issue in Campbell was not moot, the court explicitly limited its result to the facts of that case: "We emphasize that were it not for the statement of the grand jury foreman [informing the witness that he would be required to testify again in the future], we would be inclined to find that the purging of the contempt orders mooted the present appeals." Id. at 1261.

OCBC also contends that the appeal of the contempt order is not moot because it is "capable of repetition, yet evading review." An issue may evade review because of aninherent limit in the duration of a challenged action that prevents full litigation before it ends. See Phoenix Newspapers, Inc. v. United States Dist. Ct., 156 F.3d 940, 945 (9th Cir. 1998). However, nothing inherently limited the duration of OCBC's contempt other than its own decision to purge. The appeal is now moot because OCBC voluntarily purged the contempt by declaring that it would comply with the injunction. Had OCBC chosen to remain in contempt to this day, the appeal would not be moot because this court could have provided a remedy.

OCBC argues that even if the denial of the motion to dismiss and the modification order are not in and of themselves appealable, ...

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