Marla James v. The City of Costa Mesa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLA JAMES; WAYNE 

WASHINGTON; JAMES ARMANTROUT;

CHARLES DANIEL DEJONG,

Plaintiffs-Appellants, No. 10-55769

v. D.C. No.

CITY OF COSTA MESA, a city  8:10-cv-00402-

incorporated under the laws of the AG-MLG

State of California; CITY OF LAKE OPINION

FOREST, a city incorporated under

the laws of the State of California,

Defendants-Appellees.



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

Before: Harry Pregerson, Raymond C. Fisher and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Fisher;

Partial Concurrence and Partial Dissent by Judge Berzon

5283

5286 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.

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

JAMES v. CITY OF COSTA MESA 5287

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

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-

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.

5288 JAMES v. CITY OF COSTA MESA

ties Act (ADA), which prohibits discrimination in the provi-

sion of public services.2 District Judge Guilford sympathized

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

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.

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

JAMES v. CITY OF COSTA MESA 5289

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

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).

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.

5290 JAMES v. CITY OF COSTA MESA

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-

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-

JAMES v. CITY OF COSTA MESA 5291

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-

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,

5292 JAMES v. CITY OF COSTA MESA

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

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).

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”).

JAMES v. CITY OF COSTA MESA 5293

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. We there-

fore look to legislative history, including related congressio-

nal activity.7

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-

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-

7

“ ‘If the statutory language is unambiguous and the statutory scheme

is coherent and consistent,’ judicial inquiry must cease.” Miranda v.

Anchondo, ___ F.3d ___, 2012 WL 360767, at *4 (9th Cir. Feb. 6, 2012)

(quoting In re Ferrell, 539 F.3d 1186, 1190 n.10 (9th Cir. 2008)). If the

statute is ambiguous, however, “we may use canons of construction, legis-

lative history, and the statute’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)) (internal quotation marks omitted). “We may also look to

other related statutes because ‘statutes dealing with similar subjects should

be interpreted harmoniously.’ ” 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,” includ-

ing related congressional activity addressing the same subject matter).

5294 JAMES v. CITY OF COSTA MESA

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

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).

JAMES v. CITY OF COSTA MESA 5295

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,

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

5296 JAMES v. CITY OF COSTA MESA

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

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.

JAMES v. CITY OF COSTA MESA 5297

§ 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-

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.

5298 JAMES v. CITY OF COSTA MESA

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”).8

[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

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-

8

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.

JAMES v. CITY OF COSTA MESA 5299

tion to the ‘current illegal drug user’ exclusionary provisions,

this exemption does not apply to medical marijuana users.”).9

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”).10

[6] We recognize that the federal government’s views on

the wisdom of restricting medical marijuana use may be

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

9

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.

10

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.

5300 JAMES v. CITY OF COSTA MESA

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

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

JAMES v. CITY OF COSTA MESA 5301

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.11 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

plaintiffs’ medical marijuana use in California. Congress’

actions therefore did not bring the plaintiffs’ marijuana use

within the § 12210(d)(1) exception.

11

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”).

5302 JAMES v. CITY OF COSTA MESA

[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-

tion by denying preliminary injunctive relief. See Farris v.

Seabrook, ___ F.3d ___, 2012 WL 1194154, at *3-4 (9th Cir.

Apr. 11, 2012) (describing the legal standard applicable to

JAMES v. CITY OF COSTA MESA 5303

preliminary injunctive relief and the standard of review on

appeal).12

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.

I therefore would not decide the case on the broad ground

that medical marijuana users are not protected by the ADA in

12

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.

5304 JAMES v. CITY OF COSTA MESA

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 the

better reading of the statutory language, albeit not to a dispo-

sitive degree. In James’s view, the phrases “use of a drug

taken under supervision by a licensed health care profession-

al” and “other uses authorized by the [CSA]” create two dif-

ferent 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 Congress intended to carve out only drug use

authorized by the CSA, after all, the entire first clause—“the

JAMES v. CITY OF COSTA MESA 5305

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,

the exception would have divided the relevant universe into

two non-overlapping sets. Yet, in fact the CSA authorizes

5306 JAMES v. CITY OF COSTA MESA

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 on the comma that separates

the first and second clauses, as well as on the grammatical

infelicity of the syntax the Cities’ interpretation posits. The

disjunctive “or” separating those first two clauses after a

comma suggests categories at least partially distinct, in con-

trast 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 professional.” But in the

English language, modifiers at the ends of phrases do not usu-

ally leapfrog over commas. See The Chicago 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 mod-

ifier onto the phrase before the comma yields an exceedingly

1

There is at least one CSA-authorized use that does not involve medical

supervision. See 21 U.S.C. § 829(c).

JAMES v. CITY OF COSTA MESA 5307

awkward—indeed, incoherent—locution: “such term does not

include the use of a drug taken under supervision 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

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 may not be compelled by the

text, which remains a bit ambiguous. But it 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 use of the word

“other,” avoids an awkward syntax, and accounts for the pres-

ence 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 without ambiguity itself, strongly supports James’s inter-

pretation.

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

5308 JAMES v. CITY OF COSTA MESA

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

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

JAMES v. CITY OF COSTA MESA 5309

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

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.

5310 JAMES v. CITY OF COSTA MESA

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,

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’

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 5311

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.”

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.

5312 JAMES v. CITY OF COSTA MESA

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 5297. 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

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),

JAMES v. CITY OF COSTA MESA 5313

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.”

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

5314 JAMES v. CITY OF COSTA MESA

(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.

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 5299. 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

JAMES v. CITY OF COSTA MESA 5315

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.

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

5316 JAMES v. CITY OF COSTA MESA

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.

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.