Marla James v. The City of Costa Mesa

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLA JAMES; WAYNE  No. 10-55769
WASHINGTON; JAMES ARMANTROUT; D.C. No.
CHARLES DANIEL DEJONG, 8:10-cv-00402-
Plaintiffs-Appellants, AG-MLG
v. ORDER
CITY OF COSTA MESA, a city AMENDING
incorporated under the laws of the OPINION AND
State of California; CITY OF LAKE PARTIAL
FOREST, a city incorporated under  CONCURRENCE/
the laws of the State of California, PARTIAL
Defendants-Appellees. DISSENT AND
DENYING
PETITION FOR
REHEARING AND
REHEARING EN
BANC AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted
May 6, 2011—Pasadena, California
May 21, 2012
Amended November 1, 2012
13057
13058 JAMES v. CITY OF COSTA MESA
Before: Harry Pregerson, Raymond C. Fisher and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Fisher;
Partial Concurrence and Partial Dissent by Judge Berzon
13060 JAMES v. CITY OF COSTA MESA
COUNSEL
Matthew Pappas, Law Office of Matthew Pappas, Mission
Viejo, California, for the appellants.
James R. Touchstone and Krista MacNevin Jee, Jones &
Meyer, Fullerton, California, for appellee City of Costa Mesa.
Jeffrey V. Dunn (argued), Daniel S. Roberts and Lee Ann
Meyer, Best Best & Krieger LLP, Irvine, California, for
appellee City of Lake Forest.
Thomas E. Perez and Tony West, Assistant Attorneys Gen-
eral, and Mark L. Gross and Roscoe Jones, Jr., Attorneys,
Department of Justice, Washington, D.C., for the United
States as amicus curiae.
JAMES v. CITY OF COSTA MESA 13061
ORDER
Judge Pregerson and Judge Fisher have voted to deny the
petition for rehearing and rehearing en banc. Judge Berzon
has voted to grant the petition for rehearing and rehearing en
banc.
The full court has been advised of the petition for rehearing
en banc, and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
Appellants’ petition for rehearing and rehearing en banc,
filed June 4, 2012, is DENIED.
The amended opinion and amended partial concur-
rence/partial dissent filed May 21, 2012, will be filed concur-
rently with this order.
No further petitions for rehearing will be considered.
OPINION
FISHER, Circuit Judge:
The plaintiffs are severely disabled California residents.
They alleged that “[c]onventional medical services, drugs and
medications” have not alleviated the pain caused by their
impairments. Each of them has therefore “obtained a recom-
mendation from a medical doctor” to use marijuana to treat
her pain. This medical marijuana use is permissible under
California law, see Cal. Health & Safety Code § 11362.5(d)
(suspending state-law penalties for marijuana possession and
cultivation for seriously ill Californians and their caregivers
who “possess[ ] or cultivate[ ] marijuana for the personal
medical purposes of the patient upon the written or oral rec-
ommendation or approval of a physician”), but prohibited by
13062 JAMES v. CITY OF COSTA MESA
the federal Controlled Substances Act (CSA), see 21 U.S.C.
§§ 812(b)(1)(B), 812(c) sched. I (c)(10), 841(a), 844(a).
The plaintiffs obtain medical marijuana through collectives
located in Costa Mesa and Lake Forest, California. These cit-
ies, however, have taken steps to close marijuana dispensing
facilities operating within their boundaries. Costa Mesa
adopted an ordinance excluding medical marijuana dispensa-
ries completely in 2005. See Costa Mesa, Cal., Ordinance 05-
11 (July 19, 2005). Some marijuana dispensing facilities,
including the Costa Mesa collectives, have apparently contin-
ued to operate despite the ordinance, but the plaintiffs alleged
that Costa Mesa police have recently “raided operating mari-
juana collectives and detained collective members.”1 Lake
Forest has also allegedly raided medical marijuana collectives
operating within city limits, and has brought a public nuisance
action in state court seeking to close them. See City of Lake
Forest v. Moen, No. 30-2009-298887 (Orange Cnty. Super.
Ct. filed Sept. 1, 2009).
Concerned about the possible shutdown of the collectives
they rely on to obtain medical marijuana, the plaintiffs
brought this action in federal district court, alleging that the
cities’ actions violate Title II of the Americans with Disabili-
ties Act (ADA), which prohibits discrimination in the provi-
sion of public services.2 District Judge Guilford sympathized
1
We assume, as the parties do, that Costa Mesa’s efforts to close medi-
cal marijuana “dispensaries” include the marijuana dispensing facilities
that serve the plaintiffs, which the complaint terms “collectives.” Compl.
¶¶ 6, 10-11.
2
The complaint alleged that “[e]ach of the plaintiffs is a qualified person
with a disability as defined in the ADA.” Compl. ¶ 4. It further alleged
that each of the defendant cities is covered by Title II, under which public
entities “must not intentionally or on a disparate impact basis discriminate
against the disabled individual’s meaningful access to public services.” Id.
¶ 20. The complaint sought an order requiring the cities to “cease and
desist any further action to remove existing marijuana collectives orga-
nized under the laws of California,” as well as to establish regulations
“that will accommodate the needs of qualified persons under the ADA so
as to be able to legally access marijuana under California law.” Id. at 5-6.
JAMES v. CITY OF COSTA MESA 13063
with the plaintiffs, but denied their application for preliminary
injunctive relief on the ground that the ADA does not protect
against discrimination on the basis of marijuana use, even
medical marijuana use supervised by a doctor in accordance
with state law, unless that use is authorized by federal law.
We affirm. We recognize that the plaintiffs are gravely ill,
and that their request for ADA relief implicates not only their
right to live comfortably, but also their basic human dignity.
We also acknowledge that California has embraced marijuana
as an effective treatment for individuals like the plaintiffs who
face debilitating pain. Congress has made clear, however, that
the ADA defines “illegal drug use” by reference to federal,
rather than state, law, and federal law does not authorize the
plaintiffs’ medical marijuana use. We therefore necessarily
conclude that the plaintiffs’ medical marijuana use is not pro-
tected by the ADA.3
3
We do not hold, as the dissent states, that “medical marijuana users are
not protected by the ADA in any circumstance.” We hold instead that the
ADA does not protect medical marijuana users who claim to face discrim-
ination on the basis of their marijuana use. See 42 U.S.C. § 12210(a) (the
illegal drug use exclusion applies only “when the covered entity acts on
the basis of such use”). As the Equal Employment Opportunity Commis-
sion has explained,
A person who alleges disability based on one of the excluded
conditions [such as current use of illegal drugs or compulsive
gambling, see 42 U.S.C. § 12211(b)(2),] is not an individual with
a disability under the ADA. Note, however, that a person who has
one of these conditions is an individual with a disability if (s)he
has another condition that rises to the level of a disability. See
House Education and Labor Report at 142. Thus, a compulsive
gambler who has a heart impairment that substantially limits
his/her major life activities is an individual with a disability.
Although compulsive gambling is not a disability, the individu-
al’s heart impairment is a disability.
U.S. Equal Emp’t Opportunity Comm’n, Section 902 Definition of the
Term Disability, at § 902.6 (last modified No. 21, 2009), available at
http://www.eeoc.gov/policy/docs/902cm.html (last visited Apr. 27, 2012).
13064 JAMES v. CITY OF COSTA MESA
DISCUSSION
Title II of the ADA prohibits public entities from denying
the benefit of public services to any “qualified individual with
a disability.” 42 U.S.C. § 12132.4 The plaintiffs alleged that,
by interfering with their access to the medical marijuana they
use to manage their impairments, Costa Mesa and Lake Forest
have effectively prevented them from accessing public ser-
vices, in violation of Title II. As the district court recognized,
however, the ADA also provides that “the term ‘individual
with a disability’ does not include an individual who is cur-
rently engaging in the illegal use of drugs, when the covered
entity acts on the basis of such use.” Id. § 12210(a). This case
turns on whether the plaintiffs’ medical marijuana use consti-
tutes “illegal use of drugs” under § 12210.5
Section 12210(d)(1) defines “illegal use of drugs” as
the use of drugs, the possession or distribution of
which is unlawful under the Controlled Substances
Act. Such term does not include the use of a drug
taken under supervision by a licensed health care
professional, or other uses authorized by the Con-
trolled Substances Act or other provisions of Federal
law.
Id. § 12210(d)(1). The parties agree that the possession and
distribution of marijuana, even for medical purposes, is gener-
4
Under Title II of the ADA, “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public
entity or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. A “public entity” includes “any State or local government,” id.§ 12131(1)(A), and there is no dispute that the defendant cities are public
entities for purposes of Title II.
5
The cities do not dispute that they have acted “on the basis of” the
plaintiffs’ marijuana use by restricting the operation of the medical mari-
juana collectives on which the plaintiffs rely.
JAMES v. CITY OF COSTA MESA 13065
ally unlawful under the CSA, and thus that medical marijuana
use falls within the exclusion set forth in § 12210(d)(1)’s first
sentence. They dispute, however, whether medical marijuana
use is covered by one of the exceptions in the second sentence
of § 12210(d)(1). The plaintiffs contend their medical mari-
juana use falls within the exception for drug use supervised by
a licensed health care professional. They alternatively argue
that the exception for drug use “authorized by . . . other provi-
sions of Federal law” applies. We consider each argument in
turn.
I.
We first decide whether the plaintiffs’ marijuana use falls
within § 12210’s supervised use exception.
[1] There are two reasonable interpretations of
§ 12210(d)(1)’s language excepting from the illegal drug
exclusion “use of a drug taken under supervision by a licensed
health care professional, or other uses authorized by the Con-
trolled Substances Act or other provisions of Federal law.”
The first interpretation — urged by the plaintiffs — is that
this language creates two exceptions to the illegal drug exclu-
sion: (1) an exception for professionally supervised drug use
carried out under any legal authority; and (2) an independent
exception for drug use authorized by the CSA or other provi-
sions of federal law. The second interpretation — offered by
the cities and adopted by the district court — is that the provi-
sion contains a single exception covering all uses authorized
by the CSA or other provisions of federal law, including both
CSA-authorized uses that involve professional supervision
(such as use of controlled substances by prescription, as
authorized by 21 U.S.C. § 829, and uses of controlled sub-
stances in connection with research and experimentation, as
authorized by 21 U.S.C. § 823(f)), and other CSA-authorized
uses. Under the plaintiffs’ interpretation, their state-
sanctioned, doctor-recommended marijuana use is covered
under the supervised use exception. Under the cities’ interpre-
13066 JAMES v. CITY OF COSTA MESA
tation, the plaintiffs’ state-authorized medical marijuana use
is not covered by any exception because it is not authorized
by the CSA or another provision of federal law. Although
§ 12210(d)(1)’s language lacks a plain meaning and its legis-
lative history is not conclusive, we hold, in light of the text
and legislative history of the ADA, as well as the relationship
between the ADA and the CSA, that the cities’ interpretation
is correct.
The meaning of § 12210(d)(1) cannot be discerned from
the text alone. Both interpretations of the provision are some-
what problematic. The cities’ reading of the statute renders
the first clause in § 12210(d)(1)’s second sentence superflu-
ous; if Congress had intended that the exception cover only
uses authorized by the CSA and other provisions of federal
law, it could have omitted the “taken under supervision” lan-
guage altogether. But the plaintiffs’ interpretation also fails to
“giv[e] effect to each word” of § 12210(d)(1), United States
v. Cabaccang, 332 F.3d 622, 627 (9th Cir. 2003) (en banc),
for if Congress had really intended that the language except-
ing “other uses authorized by the Controlled Substances Act
or other provisions of Federal law” be entirely independent of
the preceding supervised use language, it could have omitted
the word “other,” thus excepting “use of a drug taken under
supervision by a licensed health care professional, or uses
authorized by the Controlled Substances Act.” Moreover,
unless the word “other” is omitted, the plaintiffs’ interpreta-
tion renders the statutory language outright awkward. One
would not naturally describe “the use of a drug taken under
supervision by a licensed health care professional, or other
uses authorized by the Controlled Substances Act or other
provisions of Federal law” unless the supervised uses were a
subset of the uses authorized by the CSA and other provisions
of federal law. The plaintiffs’ reading thus results not only in
surplusage, but also in semantic dissonance. Cf. Coos Cnty.
Bd. of Cnty. Comm’rs v. Kempthorne, 531 F.3d 792, 806 (9th
JAMES v. CITY OF COSTA MESA 13067
Cir. 2008) (declining to adopt the plaintiff’s “tortured reading
of the statute’s plain text”).6
[2] The cities’ interpretation also makes the most sense of
the contested language when it is viewed in context. See
United States v. Havelock, 664 F.3d 1284, 1289 (9th Cir.
2012) (en banc) (“Statutory interpretation focuses on ‘the lan-
guage itself, the specific context in which that language is
used, and the broader context of the statute as a whole.’ ”
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997))). Here, the context reveals Congress’ intent to define
“illegal use of drugs” by reference to federal, rather than state,
law. Section 12210(d)(1) mentions the CSA by name twice,
and § 12210(d)(2) provides that “[t]he term ‘drug’ means a
controlled substance, as defined in schedules I through V of
section 202 of the Controlled Substances Act.” 42 U.S.C.
§ 12210(d)(2).
We therefore conclude that the cities’ interpretation of the
statutory text is the more persuasive, though we agree with
the dissent that the text is ultimately inconclusive.7 We there-
6
Unlike our dissenting colleague, we do not place great significance on
the use of a comma to separate supervised uses from other uses authorized
by the CSA and other federal laws. We very much doubt Congress would
have relied on a single comma to acknowledge the legitimacy of a highly
controversial medical practice. Cf. Crandon v. United States, 494 U.S.
152, 169 (1990) (Scalia, J., concurring) (remarking, in discounting the sig-
nificance of a misplaced comma, that “the evidence . . . should be fairly
clear before one concludes that Congress has slipped in an additional
requirement in such an unusual fashion”).
7
Although the parties did not raise it, we have considered the rule of the
last antecedent, under which “a limiting clause or phrase . . . should ordi-
narily be read as modifying only the noun or phrase that it immediately
follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). “The rule of the
last antecedent, however, ‘is not an absolute and can assuredly be over-
come by other indicia of meaning.’ ” United States v. Hayes, 555 U.S.
415, 425 (2009) (quoting Barnhart, 540 U.S. at 26); see also Nw. Forest
Resource Council v. Glickman, 82 F.3d 825, 833 (9th Cir. 1996) (holding
that “the doctrine of last antecedent . . . must yield to the most logical
13068 JAMES v. CITY OF COSTA MESA
fore look to legislative history, including related congressio-
nal activity.8
The legislative history of § 12210(d), like its text, is inde-
terminate. It is true, as the plaintiffs point out, that Congress
rejected an early draft of the “taken under supervision” excep-
tion in favor of a broader version. Compare S. 933, 101st
Cong. § 512(b) (as passed by the Senate, Sept. 7, 1989) (“The
term ‘illegal drugs’ does not mean the use of a controlled sub-
stance pursuant to a valid prescription or other uses autho-
rized by the Controlled Substances Act or other provisions of
Federal law.” (emphasis added)), with H.R. 2273, 101st Cong.
§ 510(d)(1) (as passed by the House, May 22, 1990) (“Such
term does not include the use of a drug taken under supervi-
meaning of a statute that emerges from its plain language and legislative
history”). In the context presented here, the rule of the last antecedent does
not make the meaning of the statutory text plain and unambiguous. Nor,
in resolving the ambiguous text, does whatever presumption the rule con-
fers outweigh other indicia of meaning. As we explain, the language, the
legislative history, including the historical congressional context, the rela-
tionship between the ADA and the CSA and the absurd results the plain-
tiffs’ interpretation would produce all support the interpretation the cities
urge and the United States has embraced as amicus curiae.
8
“ ‘If the statutory language is unambiguous and the statutory scheme
is coherent and consistent,’ judicial inquiry must cease.” Miranda v.
Anchondo, 684 F.3d 844, 849 (9th Cir. 2012) (quoting In re Ferrell, 539
F.3d 1186, 1190 n.10 (9th Cir. 2008)). If the statute is ambiguous, how-
ever, “we may use canons of construction, legislative history, and the stat-
ute’s overall purpose to illuminate Congress’s intent.” Probert v. Family
Centered Servs. of Alaska, Inc., 651 F.3d 1007, 1011 (9th Cir. 2011)
(quoting Ileto v. Glock, Inc., 565 F.3d 1126, 1133 (9th Cir. 2009)) (inter-
nal quotation marks omitted). “We may also look to other related statutes
because ‘statutes dealing with similar subjects should be interpreted har-
moniously.’ ” Tides v. Boeing Co., 644 F.3d 809, 814 (9th Cir. 2011)
(quoting United States v. Nader, 542 F.3d 713, 717 (9th Cir. 2008)); see
also Tidewater Oil Co. v. United States, 409 U.S. 151, 157-58 (1972)
(stating that “it is essential that we place the words of a statute in their
proper context by resort to the legislative history,” including related con-
gressional activity addressing the same subject matter).
JAMES v. CITY OF COSTA MESA 13069
sion by a licensed health care professional, or other uses
authorized by the Controlled Substances Act or other provi-
sions of Federal law.” (emphasis added)), and H.R. Conf.
Rep. No. 101-596, at 2 (1990), reprinted in 1990
U.S.C.C.A.N. 565, 596 (explaining that the House version of
the illegal drug exclusion was chosen over the Senate ver-
sion). We are not persuaded, however, that this history com-
pels the plaintiffs’ interpretation of § 12210(d)(1). Although
the expansion of the supervised use exception suggests Con-
gress wanted to cover more than just CSA-authorized
prescription-based use, it does not demonstrate that the
exception was meant to extend beyond the set of uses autho-
rized by the CSA and other provisions of federal law. The
CSA does authorize some professionally supervised drug use
that is not prescription-based, see 21 U.S.C. § 823(f) (provid-
ing for practitioner dispensation of controlled substances in
connection with approved research studies), and Congress
could have intended simply to expand the supervised use
exception to encompass all such uses.
[3] One House Committee Report does include a brief pas-
sage that arguably supports the notion that § 12210(d)(1)’s
supervised use language and its authorized use language are
independent. See H.R. Rep. No. 101-485, pt. 3, at 75 (1990)
(“The term ‘illegal use of drugs’ does not include the use of
controlled substances, including experimental drugs, taken
under the supervision of a licensed health care professional.
It also does not include uses authorized by the Controlled
Substances Act or other provisions of federal law.” (emphasis
added)). This discussion is of limited persuasive value, how-
ever, because it may rest on the unstated assumption — quite
plausible at the time — that professionally supervised use of
illegal drugs would always be consistent with the CSA. In
fact, the experimental drug use listed in the House Committee
Report as an example of the sort of use covered by the super-
vised use exception is itself CSA-authorized. See 21 U.S.C.
§ 823(f). There is no reason to think that the 1990 Congress
that passed the ADA would have anticipated later changes in
13070 JAMES v. CITY OF COSTA MESA
state law facilitating professional supervision of drug use that
federal law does not permit. The first such change came six
years later, when California voters passed Proposition 215,
now codified as the Compassionate Use Act of 1996. See
Gonzales v. Raich, 545 U.S. 1, 5 (2005).
Although it is true, as the dissent points out, that use of
marijuana for medical purposes “was not unthinkable” in
1990, before, during and after adoption of the ADA there has
been a strong and longstanding federal policy against medical
marijuana use outside the limits established by federal law
itself. See id. at 5-6, 10-14 (contrasting California’s historical
tolerance for medical marijuana with comprehensive federal
limits on marijuana possession imposed by Congress in
1970). In 1970, despite marijuana’s known historical use for
medical purposes, Congress listed marijuana as a Schedule I
drug, designating it as a substance having “a high potential for
abuse,” “no currently accepted medical use in treatment in the
United States” and “a lack of accepted safety [standards] for
use . . . under medical supervision.” Comprehensive Drug
Abuse Prevention and Control Act of 1970, Pub. L. No. 91-
513, tit. II, § 202(b)(1), 84 Stat. 1236, 1247 (codified at 21
U.S.C. § 812(b)(1)). In 1989, the Administrator of the Drug
Enforcement Agency (DEA) rejected an administrative law
judge’s recommendation that marijuana be relisted from
Schedule I to Schedule II because of its therapeutic advan-
tages. The Administrator said that “marijuana has not been
demonstrated as suitable for use as a medicine.” 54 Fed. Reg.
53,767, 53,768 (Dec. 29, 1989). The DEA once again rejected
rescheduling in 1992, reaffirming the absence of accepted
medical use of marijuana. See 57 Fed. Reg. 10,499 (Mar. 26,
1992). It did so again in 2001. See 66 Fed. Reg. 20,038 (Apr.
18, 2001). In 1992, the Federal Drug Administration (FDA)
closed the Investigational New Drug (IND) Compassionate
Access Program, which had begun in 1978 and had allowed
a few dozen patients whose serious medical conditions could
be relieved only by marijuana to apply for and receive mari-
juana from the federal government. See Conant v. Walters,
JAMES v. CITY OF COSTA MESA 13071
309 F.3d 629, 648 (9th Cir. 2002); Mark Eddy, Cong.
Research Serv., RL 33211, Medical Marijuana: Review and
Analysis of Federal and State Policies 8 (2010). In 1998, Con-
gress passed the Omnibus Consolidated and Emergency Sup-
plemental Appropriations Act for 1999, Pub. L. No. 105-277,
112 Stat. 2681 (1998). Under the heading “Not Legalizing
Marijuana for Medicinal Use,” this provision stated in part,
“Congress continues to support the existing Federal legal pro-
cess for determining the safety and efficacy of drugs and
opposes efforts to circumvent this process by legalizing mari-
juana, and other Schedule I drugs, for medicinal use without
valid scientific evidence and the approval of the Food and
Drug Administration.” Id. Every year between 1998 and
2009, Congress blocked implementation of a voter-approved
initiative allowing for the medical use of marijuana in the Dis-
trict of Columbia. See, e.g., Consolidated Appropriations Act,
2000, Pub. L. No. 106-113, § 167, 113 Stat. 1501, 1530
(1999). Between 2003 and 2007, the House annually, and by
large margins, rejected legislation that would have prevented
the Justice Department from using appropriated funds to inter-
fere with implementation of medical marijuana laws in the
states that approved such use. See Eddy, supra, at 4-5.
Under the plaintiffs’ view, the ADA worked a substantial
departure from this accepted federal policy by extending fed-
eral protections to federally prohibited, but state-authorized,
medical use of marijuana. That would have been an extraordi-
nary departure from policy, and one that we would have
expected Congress to take explicitly. Cf. CNA Fin. Corp. v.
Donovan, 830 F.2d 1132, 1148 (D.C. Cir. 1987) (noting that
the Supreme Court has “insisted on some clear evidence of
congressional intent to work ‘a substantial change in accepted
practice’ through [a statutory] revision”). It is unlikely that
Congress would have wished to legitimize state-authorized,
federally proscribed medical marijuana use without debate, in
an ambiguously worded ADA provision.
[4] Moreover, contrary to the dissent’s suggestion, Con-
gress did not need to include medical marijuana use under the
13072 JAMES v. CITY OF COSTA MESA
ADA’s supervised use exception to ensure that the federal
medical marijuana program — the IND Compassionate
Access Program — would be covered by § 12210(d)(1). The
federal program was presumably authorized by the CSA’s
limited experimental research provisions, see 21 U.S.C.
§ 823(f), and was thus already covered by the portion of
§ 12210(d)(1) that excepts CSA-authorized uses. The same is
true of the “experimental treatment” programs referenced in
the Justice Department memorandum that the dissent cites.
We do not quarrel with the dissent’s observation that Con-
gress intended the supervised medical use exception to apply
to experimental use of controlled substances, including, per-
haps, experimental use of marijuana. These experimental
uses, however, are authorized by federal law, and subject to
a comprehensive federal regulatory regime. We find nothing
in the legislative history to suggest that Congress intended to
extend ADA protection to state-authorized, but federally pro-
hibited, uses of marijuana falling outside this regulatory
framework. There is not one word in the statute or in the leg-
islative history suggesting that Congress sought to exclude
from the definition of illegal drug use the use of a controlled
substance that was lawful under state law but unlawful and
unauthorized under federal law.
The cities’ interpretation not only makes the best sense of
the statute’s text and the historical context of its passage, but
also is the only interpretation that fully harmonizes the ADA
and the CSA. See In re Transcon Lines, 58 F.3d 1432, 1440
(9th Cir. 1995) (“[W]e must, whenever possible, attempt to
reconcile potential conflicts in statutory provisions.”). To con-
clude that use of marijuana for medical purposes is not an ille-
gal use of drugs under the ADA would undermine the CSA’s
clear statement that marijuana is an unlawful controlled sub-
stance that has “no currently accepted medical use in treat-
ment in the United States.” 21 U.S.C. § 812(b)(1)(B). As
noted, Congress reaffirmed this principle in a 1998 appropria-
tions act, see Pub. L. No. 105-277, div. F., 112 Stat. 2681,
2681-760 (1998) (“It is the sense of Congress that . . . mari-
JAMES v. CITY OF COSTA MESA 13073
juana . . . [has] not been approved . . . to treat any disease or
condition.”), and the government has reiterated it in a number
of decisions and advisory memoranda, as well as in its amicus
brief in this appeal. See Brief for the United States as Amicus
Curiae; see also Memorandum from Deputy Att’y Gen.
David W. Ogden to Selected U.S. Att’ys, at 1 (Oct. 19, 2009)
[hereinafter Ogden Memo] (“Congress has determined that
marijuana is a dangerous drug.”); Memorandum from Deputy
Att’y Gen. James M. Cole to U.S. Att’ys, at 1 (June 29, 2011)
(same); Memorandum from Helen R. Kanovsky, Dep’t of
Hous. & Urban Dev., to John Trasviña, Assistant Sec’y for
Fair Hous. & Equal Opportunity, et al., at 2 (Jan. 20, 2011)
[hereinafter Kanovsky Memo] (stating that marijuana “may
not be legally prescribed by a physician for any reason”).9
[5] Accordingly, in light of the text, the legislative history,
including related congressional activity, and the relationship
between the ADA and the CSA, we agree with both district
courts that have considered the question, as well as the
Department of Housing and Urban Development and the
United States as amicus curiae, in concluding that doctor-
supervised marijuana use is an illegal use of drugs not cov-
ered by the ADA’s supervised use exception. See James v.
City of Costa Mesa, No. SACV 10-0402 AG (MLGx), 2010
WL 1848157, at *4 (C.D. Cal. Apr. 30, 2010); Barber v. Gon-
zales, No. CV-05-0173-EFS, 2005 WL 1607189, at *1 (E.D.
Wash. July 1, 2005); Kanovsky Memo at 5 (“Under . . . the
9
Before oral argument, we invited the view of the United States as
amicus curiae. The government accepted our invitation and filed an
amicus brief supporting the cities’ interpretation:
The proper interpretation of the term “illegal use of drugs,” as
defined in 42 U.S.C. [§ ] 12210(d), includes the use of marijuana
taken under doctor supervision, unless that use is authorized by
the CSA or another federal law, which is not the case here. Fed-
eral law makes clear that medical marijuana use does not receive
special protection under the ADA.
Brief for the United States as Amicus Curiae at 10.
13074 JAMES v. CITY OF COSTA MESA
ADA, whether a given drug or usage is ‘illegal’ is determined
exclusively by reference to the CSA. . . . While . . . the ADA
contain[s] language providing a physician-supervision exemp-
tion to the ‘current illegal drug user’ exclusionary provisions,
this exemption does not apply to medical marijuana users.”).10
A contrary interpretation of the exception for “use of a drug
taken under supervision by a licensed health care profession-
al” would allow a doctor to recommend the use of any con-
trolled substance — including cocaine or heroin — and
thereby enable the drug user to avoid the ADA’s illegal drug
exclusion. Congress could not have intended to create such a
capacious loophole, especially through such an ambiguous
provision. Cf. Ross v. Ragingwire Telecomms., Inc., 174 P.3d
200, 207 (Cal. 2008) (observing, in interpreting California’s
employment discrimination law, that “given the controversy
that would inevitably have attended a legislative proposal to
require employers to accommodate marijuana use, we do not
believe that [the relevant statute] can reasonably be under-
stood as adopting such a requirement silently and without
debate”).11
[6] We recognize that the federal government’s views on
the wisdom of restricting medical marijuana use may be
10
We do not, as the dissent suggests, resolve the statutory ambiguity
based on an imagined inconsistency between the express terms of the
ADA and “general considerations of supposed public interests” derived
from the CSA. United Paperworkers Int’l Union v. Misco, 484 U.S. 29,
43 (1987) (quoting W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757,
766 (1983)) (internal quotation marks omitted). The CSA directly
addresses whether medical marijuana use constitutes illegal use of drugs,
and clearly states that such use is unlawful.
11
The dissent dismisses this problem, arguing that state licensing
requirements are sufficient to limit the reach of the supervised use excep-
tion. State licensing requirements do not eliminate the potential absurdity,
however. A doctor who recommends the use of an illegal drug might still
succeed in preserving ADA protection for the drug user, even if the doc-
tor’s behavior might ultimately result in discipline before the state licens-
ing authority.
JAMES v. CITY OF COSTA MESA 13075
evolving. See Ogden Memo at 1-2 (advising against using
federal resources to investigate and prosecute “individuals
whose actions are in clear and unambiguous compliance with
existing state laws providing for the medical use of marijua-
na”). But for now Congress has determined that, for purposes
of federal law, marijuana is unacceptable for medical use. See
21 U.S.C. § 812(b)(1)(B). We decline to construe an ambigu-
ous provision in the ADA as a tacit qualifier of the clear posi-
tion expressed in the CSA. Accordingly, we hold that
federally prohibited medical marijuana use does not fall
within § 12210(d)(1)’s supervised use exception.
II.
The plaintiffs contend that even if their marijuana use does
not fall within the § 12210(d)(1) exception for “use of a drug
taken under supervision by a licensed health care profession-
al,” it nonetheless comes within the separate exception for
drug use “authorized by . . . other provisions of Federal law,”
by virtue of recent congressional action allowing the imple-
mentation of a Washington, D.C. medical marijuana initiative.
We reject this argument.
[7] D.C.’s Initiative 59 suspended local criminal penalties
for seriously ill individuals who use medical marijuana with
a doctor’s recommendation. See D.C. Act 13-138, §§ 2 & 3
(Sept. 20, 1999) (providing that such individuals do not vio-
late the District of Columbia Uniform Controlled Substances
Act). Although D.C. voters passed this initiative in 1998,
Congress blocked its implementation through an appropria-
tions provision known as the Barr Amendment, as noted ear-
lier. See Consolidated Appropriations Act of 2000, Pub. L.
No. 106-113, § 167(b), 113 Stat. 1501, 1530 (1999)
(“Initiative 59 . . . shall not take effect.”); Comment, Seeking
a Second Opinion: How to Cure Maryland’s Medical Mari-
juana Law, 40 U. Balt. L. Rev. 139, 149 n.61 (2010) (describ-
ing the history of the Barr Amendment). Congress reenacted
the Barr Amendment every year thereafter until 2009, when
13076 JAMES v. CITY OF COSTA MESA
it passed an appropriations bill without the Barr Amendment
language. See Consolidated Appropriations Act of 2010, Pub.
L. No. 111-117, 123 Stat. 334 (2009). Soon afterward, the
D.C. Council approved implementation of Initiative 59, see
D.C. Act 18-210 (June 4, 2010), and Congress did not pass
any joint resolution of disapproval, thus allowing the initiative
to take effect. See Marijuana Policy Project v. United States,
304 F.3d 82, 83 (D.C. Cir. 2002) (“D.C. Council enactments
become law only if Congress declines to pass a joint resolu-
tion of disapproval within thirty days.”).
[8] The plaintiffs argue that these congressional actions
amount to “other provisions of Federal law” that authorize
their medical marijuana use under § 12210(d)(1). We dis-
agree. By allowing Initiative 59 to take effect, Congress
merely declined to stand in the way of D.C.’s efforts to sus-
pend local penalties on medical marijuana use. It did not affir-
matively authorize medical marijuana use for purposes of
federal law, which continues unambiguously to prohibit such
use.12 See Webster’s Third New International Dictionary 147
(2002) (“Authorize indicates endowing formally with a power
or right to act.”). Moreover, even if Congress’ actions some-
how implicitly authorized medical marijuana use in the Dis-
trict of Columbia, Congress in no way authorized the
12
It is true, of course, that, because the District of Columbia is not sov-
ereign, the D.C. Council’s legislative power is derived from that of Con-
gress. See U.S. Const. art. 1, § 8, cl. 17 (“Congress shall have Power . . .
[t]o exercise exclusive Legislation in all Cases whatsoever, over . . . the
Seat of the Government of the United States.”); D.C. Code Ann. §§ 1-
203.02, 1-204.04 (delegating some of Congress’ legislative power to the
District and enumerating the powers of the D.C. Council). But “[u]nlike
most congressional enactments, the [D.C.] Code is a comprehensive set of
laws equivalent to those enacted by state and local governments.” Key v.
Doyle, 434 U.S. 59, 68 n.13 (1977). D.C. Council enactments are therefore
not “federal” laws in the usual sense. See United States v. Weathers, 493
F.3d 229, 236 (D.C. Cir. 2007) (distinguishing between counts charged
“under federal law” and “under the D.C. Code”); Foretich v. United
States, 351 F.3d 1198, 1205 (D.C. Cir. 2003) (referring to “criminal liabil-
ity under both D.C. and federal law”).
JAMES v. CITY OF COSTA MESA 13077
plaintiffs’ medical marijuana use in California. Congress’
actions therefore did not bring the plaintiffs’ marijuana use
within the § 12210(d)(1) exception.
[9] We also do not agree with the plaintiffs that “[e]qual
protection . . . mandates” a different conclusion. Congress’
decision not to block implementation of Initiative 59 did not
result in the unequal treatment of District of Columbia and
California residents. On the contrary, Congress’ actions allow
these jurisdictions to determine for themselves whether to sus-
pend their local prohibitions on the use and distribution of
marijuana for medical purposes. Local decriminalization not-
withstanding, the unambiguous federal prohibitions on medi-
cal marijuana use set forth in the CSA continue to apply
equally in both jurisdictions, as does the ADA’s illegal drug
exclusion. There is no unequal treatment, and thus no equal
protection violation. See Boos v. Barry, 485 U.S. 312, 333
(1988) (remarking that a statute could only run afoul of the
Equal Protection Clause if construed to generate unequal
treatment).
We therefore reject the plaintiffs’ argument that their use of
medical marijuana was authorized by Congress when it
allowed implementation of D.C.’s Initiative 59.
CONCLUSION
We hold that doctor-recommended marijuana use permitted
by state law, but prohibited by federal law, is an illegal use
of drugs for purposes of the ADA, and that the plaintiffs’ fed-
erally proscribed medical marijuana use therefore brings them
within the ADA’s illegal drug exclusion. This conclusion is
not altered by recent congressional actions allowing the
implementation of the District of Columbia’s local medical
marijuana initiative. The district court properly concluded that
the plaintiffs’ ADA challenge to the cities’ efforts to close
their medical marijuana collectives is unlikely to succeed on
the merits. The district court therefore did not abuse its discre-
13078 JAMES v. CITY OF COSTA MESA
tion by denying preliminary injunctive relief. See Farris v.
Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) (describing the
legal standard applicable to preliminary injunctive relief and
the standard of review on appeal).13
The parties shall bear their own costs on appeal.
AFFIRMED.
BERZON, Circuit Judge, concurring in part and dissenting in
part:
The statutory interpretation issue at the core of this case is
an unusually tough one, as the majority opinion recognizes.
Looking at the language of § 12210(d)(1) alone, I would
come out where the majority does—concluding that the stat-
ute is ambiguous. But unlike the majority, I would not declare
a near-draw. Instead, looking at the words alone, I would con-
clude that the plaintiffs have much the better reading, but not
by enough to be comfortable that their interpretation is surely
correct. Turning then to the legislative history, I would again
declare the plaintiffs the winner, this time sufficiently, when
combined with the language considerations, to adopt their
interpretation, absent some very good reason otherwise. And
I am decidedly not convinced that the majority’s facile
“trump” via the Controlled Substances Act (“CSA”) works,
because, among other reasons, the supposed tension relied
upon does not exist.
13
Because we conclude that the plaintiffs are not qualified individuals
with a disability protected by the ADA, we do not reach Costa Mesa’s
alternative argument that the ADA does not require accommodation of a
qualified individual’s “misconduct.” Likewise, because we conclude that
the district court properly denied preliminary injunctive relief, we need not
decide whether the Anti-Injunction Act would prohibit the court from
enjoining Lake Forest from pursuing its state-court public nuisance action.
JAMES v. CITY OF COSTA MESA 13079
I therefore would not decide the case on the broad ground
that medical marijuana users are not protected by the ADA in
any circumstance. And although, in the end, I might well be
inclined to agree with the result the majority reaches on the
narrower basis that the particular claim made here is not cog-
nizable, it is not appropriate at this juncture to reach that ques-
tion. I therefore respectfully dissent.
1. Statutory Text
At the heart of this case is § 12210(d)(1) of the ADA,
which defines “illegal use of drugs” as
the use of drugs, the possession or distribution of
which is unlawful under the Controlled Substances
Act. Such term does not include the use of a drug
taken under supervision by a licensed health care
professional, or other uses authorized by the Con-
trolled Substances Act or other provisions of Federal
law.
42 U.S.C. § 12210(d)(1). James and the other plaintiffs (col-
lectively, “James”) argue that the first clause of the second
sentence carves out their marijuana use, which is under the
supervision of a doctor and in compliance with California
law. The Cities, on the other hand, read the statute as creating
a single exception—for drug use authorized by the CSA—and
argue that the first clause should be read as excepting drug
use under supervision of a doctor only when that use complies
with the CSA.
Although § 12210(d)(1) is not entirely clear, James has
very much the better reading of the statutory language. In
James’s view, the phrases “use of a drug taken under supervi-
sion by a licensed health care professional” and “other uses
authorized by the [CSA]” create two different exceptions, so
that the ADA protects use of drugs under supervision of a
doctor even when that use is not authorized by the CSA. If
13080 JAMES v. CITY OF COSTA MESA
Congress intended to carve out only drug use authorized by
the CSA, after all, the entire first clause—“the use of a drug
under supervision by a licensed health care professional”—
would have been unnecessary.
a. The use of “other”
The Cities argue, and the district court held, that James’s
reading renders the word “other” redundant, since Congress
could have more clearly and concisely conveyed the meaning
of two distinct exceptions by leaving it out. Under this view,
“other” indicates that the exception contained in the first
clause, for uses supervised by a doctor, is meant to be a subset
of the exception in the second clause, and is included only for
clarification and emphasis. This interpretation would, oddly,
prefer a minor redundancy—the word “other”— over a major
one—the entire first phrase of the second sentence.
Moreover, the word “other” is not necessarily redundant at
all. It could be read to indicate that use under supervision of
a doctor is meant to be a category of uses entirely subsumed
by the larger category of uses authorized by the CSA, but this
is not the only possible interpretation. Put another way, omit-
ting the word “other” entirely would certainly have compelled
the reading James advances, but its presence does not invali-
date her interpretation. There is, after all, a middle ground
between these two readings: The two exceptions could be
entirely separate categories of uses, or, as the Cities see them,
entirely overlapping, with the former a subset of the latter.
But the two clauses could also be seen as partially overlap-
ping, with the group of uses supervised by a doctor partially
included within the set of uses authorized by the CSA but also
partially independent, encompassing in addition a set of uses
not authorized by the CSA. This reading strikes me as the
most sensible.
Under this interpretation, “other” is not redundant. Instead,
it accurately reflects the overlap. Were the “other” not there,
JAMES v. CITY OF COSTA MESA 13081
the exception would have divided the relevant universe into
two non-overlapping sets. Yet, in fact the CSA authorizes
some (but not all) uses of “drugs taken under supervision of
a licensed health care professional.” The “other” serves to sig-
nal that there is no strict dichotomy between the two phrases,
as the bulk of the CSA-authorized uses are within the broader
set covered by the first phrase.1
b. The use of a comma
There is also a third clause, “or other provisions of Federal
law.” The CSA is clearly a provision of Federal law, meaning
that this second “other” is being used to indicate that “uses
authorized by the [CSA]” is a subset of “provisions of Federal
law.” The Cities argue that Congress used the first “other” in
the same way, suggesting a kind of three-colored bull’s eye,
in which use supervised by a doctor is a subset of use autho-
rized by the CSA, which in turn is a subset of use authorized
by Federal law.
This argument runs aground of the last antecedent principle
to which the majority refers, Maj. Op. at 13067-68 n.7 (citing
Barnhart v. Thomas, 540 U.S. 20, 26 (2003)); see also Jama
v. ICE, 543 U.S. 335, 343 (2005); Nw. Forest Res. Council v.
Glickman, 82 F.3d 825, 832-33 (9th Cir. 1966). The rule
states: “[A] limiting clause or phrase should ordinarily be read
as modifying only the noun or phrase . . . that it immediately
follows.” Jama, 543 U.S. at 343. Justice Scalia’s illustration
in Barnhart is instructive:
Consider, for example, the case of parents who,
before leaving their teenage son alone in the house
for the weekend, warn him, “You will be punished
if you throw a party or engage in any other activity
that damages the house.” If the son nevertheless
1
There is at least one CSA-authorized use that does not involve medical
supervision. See 21 U.S.C. § 829(c).
13082 JAMES v. CITY OF COSTA MESA
throws a party and is caught, he should hardly be
able to avoid punishment by arguing that the house
was not damaged.
Barnhart, 540 U.S. at 27. Notably, Justice Scalia’s example
has the word “other” in a similar role to that I posit here, and
does not condemn it as redundant.
It is true, as the majority notes, that “The rule of the last
antecedent . . . is not an absolute and can assuredly be over-
come by other indicia of meaning.” United States v. Hayes,
555 U.S. 415, 425 (2009) (internal quotation marks omitted).
But here, the comma that separates the first and second
clauses, as well as the grammatical infelicity of the syntax the
Cities’ interpretation posits, reinforce the application of the
last antecedent principle. The disjunctive “or” separating the
first two clauses after the comma suggests categories at least
partially distinct, in contrast to the second use of “or,” which
is not preceded by a comma. The Cities’ reading requires
jumping over the comma, so that the phrase “authorized by
the [CSA] or other provisions of Federal law” modifies “a
drug taken under supervision by a licensed health care profes-
sional.” But in the English language, modifiers at the ends of
phrases do not usually leapfrog over commas. See The Chi-
cago Manual of Style § 6.31 (16th ed. 2010) (“A dependent
clause that follows a main clause should not be preceded by
a comma if it is restrictive, that is, essential to the meaning of
the main clause.”). And here, ignoring the comma and tacking
the modifier onto the phrase before the comma yields an
exceedingly awkward—indeed, incoherent—locution: “such
term does not include the use of a drug taken under supervi-
sion by a licensed health care professional . . . authorized by
the [CSA] . . . .”
More sensibly, the comma was added to reinforce the
understanding that the first phrase is complete in itself, while
“uses” other than those under medical supervision must be
authorized by federal law. The comma therefore indicates that
JAMES v. CITY OF COSTA MESA 13083
the set of uses described by the first clause is not entirely sub-
sumed by the second clause, substituting for an implicit “if”
in the second clause expressing this lack of total overlap. The
sentence thus excepts (1) all supervised uses and (2) other
uses as well, if authorized by the CSA or other federal law.
This reading of the statute is, on balance, considerably
more persuasive as a matter of grammar and syntax than the
reading advanced by the Cities. It minimizes the redundancy
problem, accords with the last antecedent principle and the
use of the word “other,” avoids an awkward syntax, and
accounts for the presence of the comma before “other uses.”
2. Legislative History
James’ reading of the statute also accords much better with
the overall thrust of the legislative history. That history, while
not entirely without ambiguity, strongly supports James’s
interpretation.
a. Evolution of the exception
As the majority observes, Congress replaced a draft of the
exception that required that use of drugs be “pursuant to a
valid prescription,” S. 933, 101st Cong. § 512(b), with the
broader language eventually enacted. The original language
provided that “[t]he term ‘illegal drugs’ does not mean the use
of a controlled substance pursuant to a valid prescription or
other uses authorized by the Controlled Substances Act or
other provisions of Federal law,” S. 933, 101st Cong. § 512(b)
(as passed by the Senate, Sept. 7, 1989) (emphasis added),
while the currently in force revision, adopted by the House in
May of 1990 and ultimately chosen over the Senate version
in conference, H.R. Rep. No. 101-596, at 5 (1990) (Conf.
Rep.), reprinted in 1990 U.S.C.C.A.N. 565, 566, reads
“[s]uch term does not include the use of a drug taken under
supervision by a licensed health care professional, or other
uses authorized by the Controlled Substances Act or other
13084 JAMES v. CITY OF COSTA MESA
provisions of federal law.” 42 U.S.C. § 12210(d)(1) (emphasis
added).
Critically, the House Committee Report restates the excep-
tion, once amended, in precisely the cumulative manner I
have suggested most accords with the statutory language:
“The term ‘illegal use of drugs’ does not include the use of
controlled substances, including experimental drugs, taken
under the supervision of a licensed health care professional.
It also does not include uses authorized by the [CSA] or other
provisions of Federal law.” H.R. Rep. No. 101-485, pt. 3, at
75 (1990). This summary is in no way ambiguous, and indi-
cates at least that members of the House familiar with the stat-
utory language understood it in the manner that, for reasons
I have explained, most accords with ordinary principles of
grammar and syntax.2
2
This is not the place to enter into the contemporary debates about the
usefulness of legislative history in general, and of committee reports in
particular. Compare Exxon Mobil Corp. v. Allapattah Services, Inc., 545
U.S. 546, 568 (2005) (Kennedy, J.) (“[J]udicial reliance on legislative
materials like committee reports . . . may give unrepresentative committee
members—or, worse yet, unelected staffers and lobbyists—both the power
and the incentive to attempt strategic manipulations of legislative history
. . . .”) with id. at 575-76 (Stevens, J., dissenting) (“[C]ommittee reports
are normally considered the authoritative explication of a statute’s text and
purposes . . . .”) (citing Garcia v. United States, 469 U.S. 70, 76 (1984)).
Current Supreme Court precedent does permit consideration of both where
a statute is ambiguous, as it is here. See BedRoc Ltd. v. United States, 541
U.S. 176, 187 n.8 (2004). Moreover, statements made in the course of leg-
islative consideration are most useful where, as here, they do not in terms
declare any interpretive or application precept. Such self-conscious decla-
rations are indeed subject to manipulation by interest groups and may rep-
resent a backdoor way to establish principles that would have failed if
included directly in the statute. See Exxon Mobil, 545 U.S. at 568. But
statutory interpretation is aided rather than impeded by such clues as one
can find in the legislative materials concerning how the legislators consid-
ering the bill were speaking about the statute at hand. Ambiguous lan-
guage can take on a more definite meaning in a particular milieu. As a
result, that sensitivity to the use of language while the bill is being consid-
ered can illuminate apparent imprecisions in the later-enacted statute. Pur-
suit of such a clarification is, to my mind, the appropriate use of the bill
sequence, hearings, and Committee report on which I here rely.
JAMES v. CITY OF COSTA MESA 13085
b. Congressional awareness of medical marijuana
The majority discounts any significance in the way the cur-
rent language is described in the relevant Committee report,
observing that California voters did not pass Prop. 215 until
1996 and that there were no state laws in 1990 allowing for
professionally supervised use of drugs in a manner inconsis-
tent with the CSA. Congress would not have carefully drafted
the exception to include non-CSA authorized medically
supervised uses, the majority posits, as no such uses were
legal under state law at the time.
That explanation for dismissing the best reading of the stat-
ute and the only coherent reading of the Committee’s expla-
nation of the statute won’t wash, for several reasons. First,
while California in 1996 became the first of the sixteen states
that currently legalize medical marijuana, the history of medi-
cal marijuana goes back much further, so that use for medical
purposes was not unthinkable in 1990. At one time, “almost
all States . . . had exceptions making lawful, under specified
conditions, possession of marihuana by . . . persons for whom
the drug had been prescribed or to whom it had been given by
an authorized medical person.” Leary v. United States, 395
U.S. 6, 17 (1969). What’s more, the Federal government itself
conducted an experimental medical marijuana program from
1978 to 1992, and it continues to provide marijuana to the sur-
viving participants. See Conant v. Walters, 309 F.3d 629, 648
(9th Cir. 2002). The existence of these programs indicates that
medical marijuana was not a concept utterly foreign to Con-
gress before 1996.
Second, a deeper look at the legislative history reveals that
James’s interpretation may well reflect the particular problem
Congress was addressing when it enacted § 12210. Originally,
the provision that became § 12210 did not exclude users of
illegal drugs from the definition of protected disabled individ-
uals. During hearings before the Committee on Labor and
Human Resources, Senator Harkin, the sponsor of the ADA,
13086 JAMES v. CITY OF COSTA MESA
faced criticism that his bill would prevent employers from fir-
ing employees who were found to be under the influence of
drugs while at work and was therefore inconsistent with the
Drug-Free Workplace Act of 1988.3 Americans with Disabili-
ties Act of 1989: Hearing on S. 933 Before the S. Comm. on
Labor and Human Resources, 101st Cong. 40 (1989).
In response, Senator Harkin pointed out that the provisions
of the ADA were modeled after Section 504 of the Rehabilita-
tion Act, and that his “intent was to incorporate the policies
in Section 504 as interpreted by the Supreme Court and the
Justice Department in a recent memo prepared by the Attor-
ney General.” Id. That memorandum, which was inserted into
the record, explained that, in the view of the Justice Depart-
ment, “[a]ny legislation must make clear that the definition of
‘handicap’ does not include those who use illegal drugs.” Id.
at 836. The memorandum went on to warn that
[w]e . . . do not wish to penalize those persons who,
in limited cases, are using ‘controlled substances’
such as marijuana or morphine under the supervision
of medical professionals as part of a course of treat-
ment, including, for example, experimental treatment
or to relieve the side-effects of chemotherapy. These
persons would fall under the same category as those
who are users of legal drugs.
Id. at 837-38. During the subsequent debates in the Senate,
the amendment quoted above, which used the term “pursuant
to a valid prescription” and lacked the crucial comma, was
introduced by Senator Helms. 135 Cong. Rec. S10775 (Sept.
7, 1989). It was, as already explained, amended to include
language closer to that used in the Justice Department
Memorandum—“supervision of medical professionals.”
3
The Drug-Free Workplace Act requires that government contractors
ensure that their employees do not manufacture, distribute, dispense, pos-
sess, or use controlled substances at work. See 41 U.S.C. §§ 8101-8106.
JAMES v. CITY OF COSTA MESA 13087
A memorandum from the Justice Department certainly
doesn’t provide irrefutable proof of the correct interpretation
of statutory text Congress had not yet adopted. But it does
indicate that the issue of medical marijuana was at least on the
federal government’s, and Congress’s, radar and not, as the
majority would largely have it, an unforseen revolution six
years in the future.
Further, as noted, the wording of the exception was altered
in the House from the version that had earlier passed the Sen-
ate. The majority focuses on the substantive change from
“pursuant to a valid prescription” to “taken under supervision
by a licensed health care professional,” noting that the CSA
authorizes uses not pursuant to a prescription. But, for that
very reason, there was no reason to change the wording of
§ 512(b) of the Senate bill; “other uses authorized by the
[CSA]” were already, generically, covered. A more likely
explanation, consistent with the House Committee Report,
was the determination to define a set of uses covered by the
exception whether or not “authorized by the [CSA],” a change
carried out by the alteration in context, syntax, and
punctuation—including the addition of the comma, otherwise
inexplicable.
The upshot is that the statutory language and history, taken
together, fit much better with James’s version of what Con-
gress meant than the Cities’.
3. Conflict with the CSA
The majority, however, instead declares a near-draw, and
then breaks it by concluding that the Cities’ “is the only inter-
pretation that fully harmonizes the ADA and the CSA.” Maj.
Op. at 13072. Not only do I disagree with the notion that both
interpretations of the statutory language and history are
equally or almost equally viable, I also cannot buy the notion
that judges may invent the manner in which the ADA and the
CSA should be harmonized. As to users of illegal drugs, the
13088 JAMES v. CITY OF COSTA MESA
statute directly addresses that question. One way or another,
we must find the answer to that harmonization by interpreting
the statute, not by applying our own notion of how the two
statutes ought to interact.
Moreover, I also cannot agree that James’s reading of the
exception creates a conflict between the ADA and the CSA so
sharp as to provide useful guidance, from outside the terms of
the ADA itself, as to the appropriate interaction of the two
statutes. Nothing in the CSA addresses the civil rights of a
disabled person using drugs for medical purposes, any more
than anything in the CSA addresses whether such a person
can recover in tort. Conversely, recognizing that individuals
using CSA-covered drugs are not excluded from ADA cover-
age does not preclude prosecuting them under the CSA.
An analogous line of cases is instructive in this regard: In
resolving conflicts between arbitrators’ awards and notions of
“public policy” gleaned from statutes, the Supreme Court has
focused on direct and specific incompatibility, rather than on
general notions concerning the underlying purpose of compet-
ing directives. United Paperworkers International Union v.
Misco, 484 U.S. 29 (1987), and Eastern Associated Coal Cor-
poration v. United Mine Workers, 531 U.S. 57 (2000),
reviewed arbitration awards reinstating employees who had
been discharged for marijuana use. The appropriate inquiry as
to the validity of the arbitration awards, the Court noted, must
be into “explicit conflict with other ‘laws and legal prece-
dents’ rather than an assessment of ‘general considerations of
supposed public interests.’ ” Misco, 484 U.S. at 43 (quoting
W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766
(1983)). Holding that no public policy against illegal drug use
was sufficiently “explicit, well defined, and dominant,”
United Mine Workers, 531 U.S. at 62, to require that individu-
als who illegally use marijuana may not be employed, the
Court stressed the idea that “the question to be answered is
not whether [the employee’s] drug use itself violates public
policy, but whether the agreement to reinstate him does so.”
JAMES v. CITY OF COSTA MESA 13089
Id. at 62-63; see also Misco, 484 U.S. at 44; Southern Cal.
Gas Co. v. Util. Workers Union Local 132, 265 F.3d 787,
794-97 (9th Cir. 2001).
Similarly here, there could be no square conflict between
the CSA and the ADA were the ADA interpreted, as I sug-
gest, to specify that a medical marijuana user could be a quali-
fied person with a disability and so not entirely excluded from
the ADA’s protection. The CSA does not make it illegal, for
example, to employ a medical marijuana user or to provide
such a user with schooling, unemployment benefits, or other
non drug-related services. Interpreting the ADA to require, in
some circumstances, such employment or schooling or bene-
fits would not conflict with the CSA.
The California Supreme Court recently proceeded from a
similar recognition as to the limits of the direct conflict con-
cept, albeit to the opposite end. That Court held that the Com-
passionate Use Act did not dictate protection of medical
marijuana users under the state’s version of the ADA. The
state disability statute, unlike the federal ADA, does not
address, one way or the other, whether medical marijuana
users are entitled to the protections of the statute. Ross v.
RagingWire Telecommunications Inc., 174 P.3d 200, 204
(Cal. 2008), held that under those circumstances, the fact that
use of medical marijuana is not a criminal offense in Califor-
nia does not necessarily speak to its status under an anti-
discrimination law. For the same reason, I suggest, the oppo-
site is also true: that use of medical marijuana is a criminal
offense under the CSA does not speak to its pertinence as a
disqualifying factor with regard to the civil protections other-
wise accorded disabled individuals.
There is, in other words, no direct conflict between the
ADA and the CSA if the ADA is interpreted as I propose. An
imagined conflict or tension should not be dragged in, like a
deus ex machina, to settle a difficult statutory interpretation
problem.
13090 JAMES v. CITY OF COSTA MESA
It is worth observing, in addition, that if there were a direct
conflict, it would be the ADA rather than the CSA that would
prevail, as the ADA is the later-enacted statute. Repeals by
implication are disfavored; every effort must therefore be
made to make both statutes operative within their realm,
rather than declaring a clash. Watt v. Alaska, 451 U.S. 259,
267 (1981). Avoiding a clash by having the later statute bow
to the earlier one, when the two address different problems
and so can coexist without difficulty, is not harmonization,
but hegemony through prior enactment.
Nor am I dissuaded by the assertion that my interpretation
of the statutory exception “would allow a doctor to recom-
mend the use of any controlled substance — including
cocaine or heroin.” Maj. Op. at 13074. The ADA does not
address the practice of medicine. Section 12210 only excepts
use pursuant to supervision by a “licensed health care profes-
sional.” Nothing in California law, or, so far as I am aware,
the law of any other state, permits doctors to encourage the
use of heroin; a doctor who does so is unlikely to remain “li-
censed” for very long, and so the scenario is unlikely to occur.
In contrast, California, which generally licenses medical pro-
fessionals, does not penalize those who recommend medical
marijuana, nor may the federal government do so, in many
instances. See Conant, 309 F.3d at 639.
At the same time, I am dubious that the exception upon
which James relies can ultimately carry the day in this case.
We are concerned here with the Cities’ effort to exclude med-
ical marijuana dispensaries, not with a policy that prevents
disabled individuals who use medical marijuana from, for
example, attending school or obtaining unemployment bene-
fits. The ADA’s definition of “individual with a disability,”
excluding those who illegally “use” drugs, and its attendant
definition of “illegal use of drugs,” are both phrased in terms
of “use,” and do not address those who distribute or sell
drugs.
JAMES v. CITY OF COSTA MESA 13091
The definition of “illegal use of drugs” applies equally to
the ADA’s employment provisions. See 42 U.S.C.
§ 12111(6). That exception, if read as I suggest, would pre-
clude employers from refusing to hire otherwise qualified dis-
abled individuals who use medical marijuana, as long as
doing so did not interfere with their ability to carry out their
duties safely. The legislative history quoted above suggests
that Congress was particularly concerned with that group of
individuals, recognizing that disabled individuals who follow
their doctors’ advice for dealing with their disability should
not be barred from the workplace simply for doing so. But
there is no connection between having a disability and distrib-
uting or selling drugs, and no preclusion in the ADA of refus-
ing to hire drug dealers of any stripe.
Moreover, in the absence of any statutory provision
addressing ADA protection for drug dealers, the mode of
analysis the majority inappropriately applies to interpreting
§ 12210 would have more force. That is, absent any statutory
provision addressing the intersection of the two statutes, it
would be proper to hold that employers may ban from
employment, and public entities may refuse to harbor within
their borders, drug dealers who violate the CSA, as Congress
in no way indicated otherwise. That was the mode of analysis
adopted by the California Supreme Court in Ross, and which
I suggest would apply under the ADA to the question whether
Title II requires the Cities to allow the distribution—as
opposed to the use—of medical marijuana.
Deciding that question is, however, premature at this junc-
ture. The only basis on which the preliminary injunction was
denied was the district court’s conclusion that James was not
within the group of disabled individuals protected by Title II
of the ADA. For now, I would simply decide that question,
holding that § 12210 does not exclude James and the other
plaintiffs from the class of individuals protected by the ADA,
and remand for further proceedings.
13092 JAMES v. CITY OF COSTA MESA
4. Conclusion
While § 12210(d)(1) has a degree of ambiguity, it is most
naturally read as carving out plaintiffs’ medical marijuana
use, which is “under supervision by a licensed health care
professional,” from the ADA’s “illegal use of drugs” excep-
tion. The legislative history provides further support for this
interpretation. At the same time, it seems most likely that
Congress did not intend the ADA to require the Cities to per-
mit marijuana dispensaries, which remain illegal under the
CSA, within their borders, as the ADA provision at issue here
is directed at personal use rather than distribution. I therefore
dissent with regard to Part I of the majority opinion, and
would remand for ultimate consideration on the merits of
whether James has alleged a viable cause of action with
regard to the distribution of drugs that are illegal under the
CSA. I concur in the remainder of the majority opinion.