Conant v. Walters
| Decision Date | 29 October 2002 |
| Docket Number | No. 00-17222.,00-17222. |
| Citation | 309 F.3d 629 |
| Parties | Marcus CONANT, Dr.; Donald Northfelt, Dr.; Debashish Tripathy, Dr.; Neil Flynn, Dr.; Stephen Follansbee, Dr.; Stephen O'Brien, Dr.; Milton Estes, Dr.; Jo Daly; Keith Vines; Judith Cushner; Valerie Corral; Bay Area Physicians for Human Rights; Being Alive: People with HIV/AIDS Action Coalition, Inc.; Howard Maccabee, Dr.; Daniel Kane; Allan Flach, Dr.; Michael Ferrucci, Plaintiffs-Appellees, v. John P. WALTERS,<SMALL><SUP>*</SUP></SMALL>, Director of the White House Office of National Drug Control Policy; Asa Hutchinson,<SMALL><SUP>**</SUP></SMALL> Administrator, U.S. DEA; John Ashcroft,<SMALL><SUP>***</SUP></SMALL> Attorney General of the United States; Tommy G. Thompson,<SMALL><SUP>****</SUP></SMALL> Secretary of the Department of Health and Human Services, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark B. Stern, Department of Justice, Washington, DC, for the defendants-appellants.
Graham A. Boyd, ACLU Drug Policy Litigation, New Haven, CT, Jonathan Weissglass, Altshuler, Berzon, Nussbaum, Rubin & Demain, San Francisco, CA, Daniel N. Abrahamson, Drug Policy Alliance, Oakland, CA, Ann Brick, ACLU Foundation of Northern California, San Francisco, CA, for the plaintiffs-appellees.
Stephen C. Willey, Latham & Watkins, Menlo Park, CA, for amici American Public Health Association, et al.
Julie M. Carpenter, Robert M. Portman, and Janis C. Kestenbaum, Jenner & Block, Washington, DC, for amici California Medical Association, et al.
Appeal from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding. D.C. No. CV-97-00139-WHA.
Before: SCHROEDER, Chief Judge, B. FLETCHER and KOZINSKI, Circuit Judges.
This is an appeal from a permanent injunction entered to protect First Amendment rights. The order enjoins the federal government from either revoking a physician's license to prescribe controlled substances or conducting an investigation of a physician that might lead to such revocation, where the basis for the government's action is solely the physician's professional "recommendation" of the use of medical marijuana. The district court's order and accompanying opinion are at Conant v. McCaffrey, 2000 WL 1281174 (N.D.Cal. Sept.7, 2000). The history of the litigation demonstrates that the injunction is not intended to limit the government's ability to investigate doctors who aid and abet the actual distribution and possession of marijuana. 21 U.S.C. § 841(a). The government has not provided any empirical evidence to demonstrate that this injunction interferes with or threatens to interfere with any legitimate law enforcement activities. Nor is there any evidence that the similarly phrased preliminary injunction that preceded this injunction, Conant v. McCaffrey, 172 F.R.D. 681 (N.D.Cal.1997), which the government did not appeal, interfered with law enforcement. The district court, on the other hand, explained convincingly when it entered both the earlier preliminary injunction and this permanent injunction, how the government's professed enforcement policy threatens to interfere with expression protected by the First Amendment. We therefore affirm.
The federal government promulgated its policy in 1996 in response to initiatives passed in both Arizona and California decriminalizing the use of marijuana for limited medical purposes and immunizing physicians from prosecution under state law for the "recommendation or approval" of using marijuana for medical purposes. See Cal. Health & Safety Code § 11362.5. The federal policy declared that a doctor's "action of recommending or prescribing Schedule I controlled substances is not consistent with the `public interest' (as that phrase is used in the federal Controlled Substances Act)" and that such action would lead to revocation of the physician's registration to prescribe controlled substances.1 The policy relies on the definition of "public interest" contained in 21 U.S.C. § 823(f), which provides:
In determining the public interest, the following factors shall be considered: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The applicant's experience in dispensing, or conducting research with respect to controlled substances. (3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety.
The policy also said that the DOJ and the HHS would send a letter to practitioner associations and licensing boards informing those groups of the policy. The federal agencies sent a letter two months later to national, state, and local practitioner associations outlining the Administration's position ("Medical Leader Letter"). The Medical Leader Letter cautioned that physicians who "intentionally provide their patients with oral or written statements in order to enable them to obtain controlled substances in violation of federal law ... risk revocation of their DEA prescription authority."
Plaintiffs are patients suffering from serious illnesses, physicians licensed to practice in California who treat patients with serious illnesses, a patient's organization, and a physician's organization. The patient organization is Being Alive: People with HIV/AIDS Action Coalition, Inc. The physician's organization is the Bay Area Physicians for Human Rights. Plaintiffs filed this action in early 1997 to enjoin enforcement of the government policy insofar as it threatened to punish physicians for communicating with their patients about the medical use of marijuana. The case was originally assigned to District Judge Fern Smith, who presided over the case for more than two years. After Judge Smith received the parties' briefs, she issued a temporary restraining order, certified a plaintiff class, denied the government's motion to dismiss, issued a preliminary injunction, awarded interim attorney's fees to plaintiffs, and set the briefing schedule for discovery.
Judge Smith entered the preliminary injunction on April 30, 1997. It provided that the government "may not take administrative action against physicians for recommending marijuana unless the government in good faith believes that it has substantial evidence" that the physician aided and abetted the purchase, cultivation, or possession of marijuana, 18 U.S.C. § 2, or engaged in a conspiracy to cultivate, distribute, or possess marijuana, 21 U.S.C. § 846. Id. at 700. Judge Smith specifically enjoined the "defendants, their agents, employees, assigns, and all persons acting in concert or participating with them, from threatening or prosecuting physicians, [or] revoking their licenses ... based upon conduct relating to medical marijuana that does not rise to the level of a criminal offense." Id. at 701. The preliminary injunction covered not only "recommendations," but also "non-criminal activity related to those recommendations, such as providing a copy of a patient's medical chart to that patient or testifying in court regarding a recommendation that a patient use marijuana to treat an illness." Id. at 701 n. 8.
The government did not appeal the preliminary injunction, and it remained in effect after the case was transferred more than two years later to Judge Alsup on August 19, 1999. Judge Alsup in turn granted a motion to modify the plaintiff class, held a hearing on motions for summary judgment, granted in part and denied in part the cross-motions for summary judgment, dissolved the preliminary injunction, and entered a permanent injunction. The class was modified to include only those patients suffering from specific symptoms related to certain illnesses and physicians who treat such patients. The permanent injunction appears to be functionally the same as the preliminary injunction that Judge Smith originally entered. It provides that the government is permanently enjoined from:
(i) revoking any physician class member's DEA registration merely because the doctor makes a recommendation for the use of medical marijuana based on a sincere medical judgment and (ii) from initiating any investigation solely on that ground. The injunction should apply whether or not the doctor anticipates that the patient will, in turn, use his or her recommendation to obtain marijuana in violation of federal law.
Conant, 2000 WL 1281174, at *16.
In explaining his reasons for entering the injunction, Judge Alsup pointed out that there was substantial agreement between the parties as to what doctors could and could not do under the federal law. Id. at *11. The government agreed with plaintiffs that revocation of a license was not authorized where a doctor merely discussed the pros and cons of marijuana use. Id. The court went on to observe that the plaintiffs agreed with the government that a doctor who actually prescribes or dispenses marijuana violates federal law. The fundamental disagreement between the parties concerned the extent to which the federal government could regulate doctor-patient communications without interfering with First Amendment interests. Id. This appeal followed.
It is important at the outset to observe that this case has been litigated independently of contemporaneous litigation concerning whether federal law exempts from prosecution the dispensing of marijuana in cases of medical necessity. The Supreme Court in that litigation eventually held that it does not, reversing this court. See United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001), rev'g United States v. Oakland Cannabis Buyers' Coop., 190 F.3d 1109 (9th Cir.1999). When the district court entered the permanent...
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