Edward Forchion v. Philip Murphy ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1555
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EDWARD FORCHION,
a/k/a “NJWEEDMAN”
Appellant
v.
PHILIP DUNTON MURPHY, Governor of the State of New Jersey
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:20-cv-16582)
District Judge: Honorable Peter G. Sheridan
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Submitted Under Third Circuit L.A.R. 34.1(a)
on January 26, 2023.
Before: HARDIMAN, KRAUSE, and MATEY, Circuit Judges
(Filed: January 30, 2023)
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OPINION *
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KRAUSE, Circuit Judge.
Although Edward Forchion—also known as NJWeedman—describes himself as
“the best known marijuana advocate in the history of the State of New Jersey,” Opening
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
Br. 8, he seeks to strike down New Jersey’s recreational marijuana regime as inconsistent
with federal law. The District Court ruled that Forchion lacked standing under Article III
and dismissed his suit. Discerning no error, we will affirm.
I. BACKGROUND
Over the past two decades, Forchion’s theatrical approach to marijuana advocacy
has repeatedly drawn the attention of law enforcement. State authorities have raided his
illicit dispensaries, charged him with marijuana offenses, and jailed him on those charges.
On November 3, 2020, New Jersey voters effected a sea change in the state’s
marijuana law: they approved a referendum amending the state constitution to legalize
recreational marijuana. To implement that amendment, the state legislature enacted a law
permitting licensed businesses to sell recreational marijuana.
Forchion sued to invalidate that regime. He alleged that the referendum was
“deceptive” because instead of legalizing marijuana for all, state authorities plotted to
create a cabal of marijuana corporations and exclude people of color from the new market.
Forchion also asserted that legalization would intensify law enforcement actions against
him. Finally, he contended that New Jersey had violated federal law. The District Court
determined that Forchion had not satisfied Article III standing and therefore dismissed his
suit for lack of jurisdiction.
II. DISCUSSION 1
Article III requires a plaintiff to establish standing to sue in federal court. See
1
The District Court had putative jurisdiction under 28 U.S.C. §§ 1331, 1367. We
have jurisdiction under 28 U.S.C. § 1291. Although the District Court dismissed for lack
2
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). A plaintiff meets that burden
by showing: “(i) that [the plaintiff] suffered an injury in fact that is concrete, particularized,
and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that
the injury would likely be redressed by judicial relief.” Id. (citation omitted). Forchion
fails to satisfy any of these indispensable elements, so the District Court did not err when
it dismissed his case for lack of jurisdiction.
Although Forchion avers that New Jersey’s marijuana regime violates federal law
and will create a corporate cartel, those assertions do not show a particularized injury that
affects Forchion “in a personal and individual way.” Spokeo, Inc. v. Robins, 578 U.S. 330,
339 (2016) (quotation omitted). Rather, those concerns are the kind of generalized
grievances seeking to vindicate interests shared by all citizens that standing doctrine leaves
to the political process. See Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 259 (3d
Cir. 2009).
Nor has Forchion established an injury in fact based on the possibility that he will
be excluded from the legal marijuana market. When he filed the operative complaint,
Forchion had not yet applied for a marijuana distribution license. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 569 n.4 (1992) (explaining “federal jurisdiction ordinarily
of subject matter jurisdiction, “we always [have] jurisdiction to determine [our] own
jurisdiction.” Guerra v. Consol. Rail Corp., 936 F.3d 124, 131 (3d Cir. 2019) (quotation
omitted). We review a dismissal for lack of jurisdiction de novo. Manivannan v. U.S.
Dep’t of Energy, 42 F.4th 163, 169 (3d Cir. 2022). When assessing a facial jurisdictional
challenge, we accept the plaintiff’s well-pled allegations as true and review them in the
light most favorable to the plaintiff. Id.3
depends on the facts as they exist when the complaint is filed”) (internal quotation and
emphasis omitted). 2 Thus, his concern that New Jersey authorities would deny his
application based on animus is too “conjectural or hypothetical” to satisfy standing.
Clemens v. ExecuPharm Inc., 48 F.4th 146, 152 (3d Cir. 2022) (quotations omitted).
Forchion’s remaining grievance—that New Jersey’s legalization of recreational
marijuana will cause the state to “greatly ramp up its war against” him, Opening Br. 10—
is similarly insufficient because Forchion has not shown causation or redressability. New
Jersey’s legal marijuana regime cannot cause law enforcement actions against Forchion
because unlicensed marijuana sales are illicit regardless of that regime. See Finkelman v.
Nat’l Football League, 810 F.3d 187, 193 (3d Cir. 2016) (noting the causation element of
standing requires something “akin to but for causation in tort” (quotations omitted)). For
the same reason, invalidating the recreational marijuana law would not redress Forchion’s
alleged injury of retaliation and selective prosecution. Forchion has therefore not
established the causation or redressability elements of Article III standing.
Finally, Forchion invokes cases examining standing doctrine under New Jersey law.
Those cases are inapt because “Article III standing limits the power of federal courts and
is a matter of federal law. It does not turn on state law, which obviously cannot alter the
2
On appeal, Forchion moved to file a supplemental appendix showing that he
applied for a marijuana distribution license and his application is pending. But even if
the Court were to consider these documents, Forchion’s contention that his application
will be denied remains inadequate because his purported injury is “based on speculation
and . . . contingent on future events.” Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009).
We therefore deny Forchion’s motion as moot. See Jiangsu Beier Decoration Materials
Co. v. Angle World LLC, 52 F.4th 554, 557 n.5 (3d Cir. 2022).
4
scope of the federal judicial power.” Yaw v. Del. River Basin Comm’n, 49 F.4th 302, 316
(3d Cir. 2022) (quotation omitted).
IV. CONCLUSION
For the foregoing reasons, we will affirm the judgment of the District Court.
5