NOT FOR PUBLICATION
`
`FILED
`
`JUN 22 2020
`
`UNITED STATES COURT OF APPEALS
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
` FOR THE NINTH CIRCUIT
`
`EMMA NATION,
`
`No. 19-16443
`
` Plaintiff-Appellee,
`
`D.C. No. 4:18-cv-03984-HSG
`
` v.
`
`DONALD J. TRUMP, et al.,
`
` Defendant-Appellant.
`
`MEMORANDUM
`
`*
`
`Appeal from the United States District Court
`for the Northern District of California
`Haywood S. Gilliam, Jr., District Judge, Presiding
`
`Submitted June 12, 2020**
`San Francisco, California
`
`Before: TASHIMA and HUNSAKER, Circuit Judges, and SELNA, Senior District
`Judge***
`
`This disposition is not appropriate for publication and is not precedent
` *
`except as provided by Ninth Circuit Rule 36-3.
`
`The panel unanimously concludes this case is suitable for decision
`**
`without oral argument. See Fed. R. App. 34(a)(2).
`
`The Honorable James V. Selna, Senior District Judge for the United
`***
`States District Court for the Central District of California, sitting by designation.
`
`1
`
`
`
`FILED
`
`JUN 22 2020
`
`UNITED STATES COURT OF APPEALS
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
` FOR THE NINTH CIRCUIT
`
`EMMA NATION,
`
`No. 19-16443
`
` Plaintiff-Appellee,
`
`D.C. No. 4:18-cv-03984-HSG
`
` v.
`
`DONALD J. TRUMP, et al.,
`
` Defendant-Appellant.
`
`MEMORANDUM
`
`*
`
`Appeal from the United States District Court
`for the Northern District of California
`Haywood S. Gilliam, Jr., District Judge, Presiding
`
`Submitted June 12, 2020**
`San Francisco, California
`
`Before: TASHIMA and HUNSAKER, Circuit Judges, and SELNA, Senior District
`Judge***
`
`This disposition is not appropriate for publication and is not precedent
` *
`except as provided by Ninth Circuit Rule 36-3.
`
`The panel unanimously concludes this case is suitable for decision
`**
`without oral argument. See Fed. R. App. 34(a)(2).
`
`The Honorable James V. Selna, Senior District Judge for the United
`***
`States District Court for the Central District of California, sitting by designation.
`
`1
`
`
`
`Emma Nation (“Nation”) appeals the district court’s dismissal with prejudice
`
`of Nation’s Tenth Amendment and Fourth Amendment claims in her First
`
`Amended Complaint (“FAC”). We have jurisdiction under 28 U.S.C. § 1291. We
`
`review the dismissal de novo and the denial of leave to amend for abuse of
`
`discretion, and we affirm. See Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097,
`
`1100 (9th Cir. 2004); Carson Harbor Vill., Ltd. v. City of Carson, 353 F.3d 824,
`
`826 (9th Cir. 2004).
`
`The district court lacked subject matter jurisdiction because Nation failed to
`
`exhaust her administrative remedies. Nation alleged that the United States
`
`Department of Housing and Urban Development’s (“HUD”) application of the
`
`Controlled Substances Act (“CSA”) against medical marijuana1 in California
`
`violates the Tenth Amendment and the Fourth Amendment because California
`
`permits limited use of marijuana for medicinal purposes. See Cal. Health & Safety
`
`Code § 11362.5 (West 1996). However, Nation’s claims are dependent on the
`
`classification of marijuana as a controlled substance under the CSA because the
`
`Quality Housing and Work Responsibility Act of 1998 (“QHWRA”) only
`
`references the CSA’s definition of controlled substance.
`
`1Also known as cannabis or marihuana.
`
`2
`
`
`
`The QHWRA requires that owners of federally-assisted housing establish
`
`certain occupancy standards pertaining to illegal drug use for residents. See
`
`generally 42 U.S.C. §§ 13661-62. Among these, owners are required to “establish
`
`standards or lease provisions . . . that allow” the owner “to terminate the tenancy or
`
`assistance for any household with a member” who “is illegally using a controlled
`
`substance.” Id. § 13662(a). The QHWRA refers to the CSA to define the term
`
`“controlled substance.” Id. §§ 1437f(f)(5), 11851(2), 13662(a). The CSA in turn
`
`defines “controlled substance” as a drug or other substance included in one of the
`
`CSA’s five schedules. 21 U.S.C. § 802(6). Marijuana is classified as a Schedule I
`
`drug under the CSA. 21 C.F.R. § 1308.11(d)(23). The CSA criminalizes the
`
`manufacturing, distribution, dispensing, and possession of substances classified in
`
`any of the CSA’s five schedules. 21 U.S.C. §§ 841(a)(1), 844(a). Because the
`
`QHWRA merely refers to the CSA to define what a controlled substance is,
`
`Nation’s claim is therefore dependent on the classification of medical marijuana as
`
`a controlled substance under the CSA.
`
`The CSA affords interested persons the ability to petition the Drug
`
`Enforcement Administration (“DEA”) to reclassify drugs. See id. § 811(a); 21
`
`C.F.R. § 1308.43(a). If the DEA’s scheduling determination is adverse, the
`
`exclusive remedy available is to seek judicial review by the appellate courts. 21
`
`3
`
`
`
`U.S.C. § 877. Despite being framed as an “as-applied” constitutional claim, the
`
`relief sought by Nation is to change the scheduling classification for medical
`
`marijuana, which is “based on the same factors that guide the DEA’s
`
`reclassification determination.” See Washington v. Sessions, No. 17 CIV. 5625
`
`(AKH), 2018 WL 1114758, at *4 (S.D.N.Y. Feb. 26, 2018), aff’d, but appeal held
`
`in abeyance sub nom. Washington v. Barr, 925 F.3d 109, 122 (2d Cir. 2019). The
`
`FAC acknowledges as much by alleging that Nation is harmed “by reason of the
`
`provisions of the CSA.” Specifically, she asks the court to “[d]eclare the CSA
`
`relative to medical cannabis to be unconstitutional either in part or in whole,
`
`nationwide or in the State of California.”
`
`Exhaustion of administrative remedies is required where Congress
`
`specifically mandates it. McCarthy v. Madigan, 503 U.S. 140, 144 (1992),
`
`superseded by statute on other grounds as recognized in Porter v. Nussle, 534 U.S.
`
`516 (2002). Courts have judicial discretion to require exhaustion of administrative
`
`remedies where Congress “has not clearly required exhaustion[.]” Id. Even when
`
`discretionary, the Court fashions the “exhaustion principles in a manner consistent
`
`with congressional intent and any applicable statutory scheme.” Id. Although the
`
`CSA does not mandate the exhaustion of administrative remedies, Congress’ intent
`
`to favor administrative decision-making as to the CSA is evidenced by its creation
`
`4
`
`
`
`of an administrative process to schedule, reschedule, or deschedule drugs. Barr,
`
`925 F.3d at 116-17. Requiring the exhaustion of this process prior to filing suit is
`
`consistent with that intent, protects agency authority, and promotes judicial
`
`efficiency. Id.
`
`Nation argues that forcing her to petition the DEA would overrule Marbury
`
`v. Madison, 5 U.S. 137, 178 (1803), because the DEA does not have “the authority
`
`to determine whether the application of the CSA crossed a Constitutional
`
`threshold.” However, exhausting the administrative process would not preclude
`
`Nation from bringing as-applied constitutional arguments to the appellate courts if
`
`the DEA’s determination were adverse.
`
`Nation has not alleged that she exhausted the available administrative
`
`process provided for in the CSA despite challenging the CSA’s classification of
`
`medical marijuana in the FAC. Accordingly, the district court properly determined
`
`that it lacked subject matter jurisdiction over the claims in the FAC.
`
`Further amendment of the FAC would have been futile because Nation
`
`admits that she did not exhaust the administrative process under the CSA.
`
`Additionally, even if Nation had pursued the administrative process and disagreed
`
`with the DEA’s determination, she could only seek judicial review in an appellate
`
`court. See 21 U.S.C. § 877. Therefore, the district court did not abuse its
`
`5
`
`
`
`discretion in dismissing the action without leave to amend. See Thinket Ink Info.
`
`Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004).
`
`In view of the dispositive nature of Nation’s failure to exhaust, the Court
`
`declines to address Nation’s remaining arguments.
`
`AFFIRMED.
`
`6
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
