The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff is a prospective participant in the District of Columbia's nascent medical marijuana program. Plaintiff asserts claims against defendants President Barack Obama and Attorney General Eric H. Holder, Jr. regarding the Department of Justice's criminal prosecution of medical marijuana distributors and President Obama's campaign statements regarding the treatment of medical marijuana by his administration. Plaintiff seeks injunctive enforcement of President Obama's alleged promise not to enforce the Controlled Substances Act with respect to medical marijuana; review of the constitutionality of the CSA; and a declaratory judgment that Congress has amended the CSA by implication in its purported approval of the District's program. Plaintiff has also sued Vincent Gray, the District's Mayor, and the District's Department of Health. Plaintiff challenges the constitutionality of medical marijuana program rules that allegedly require him to incriminate himself under the CSA.
Now pending before the Court are several motions filed by plaintiff and motions to dismiss filed by both the federal government defendants and the District defendants. The plaintiff has filed a motion for a preliminary injunction to enjoin the federal government from enforcing the CSA, a motion for a preliminary injunction to prevent the District from enforcing the medical marijuana program rules, two motions regarding the assignment of a judge of this Court to this matter, and three motions regarding the Clerk of the Court. The Court has previously denied plaintiff's motion to temporarily restrain the District defendants from enforcing the medical marijuana program rules. See Mem. Op. and Order (Sept. 16, 2011) [Docket Entry 35]. For the reasons described below, the Court will deny plaintiff's motions, with the exception of plaintiff's motion for an order directing the Clerk to correct Docket Entry 36, which the Court will grant. The Court will also grant the federal defendants' motion to dismiss, and defendants Obama and Holder will be dismissed from this case. The District defendants' motion to dismiss remains before the Court.
The District of Columbia is in the process of starting a medical marijuana program. See D.C. Code §§ 7-1671.01-.13 (2011); Emergency and Fourth Proposed Rulemaking to Implement the Legalization of Marijuana for Medical Treatment Initiative of 1999, Rule 22-C100, D.C. Reg. Vol. 58, No. 32 (Aug. 12, 2011). Plaintiff has "publicly expressed his intent . . . to become a licensed medical marijuana cultivator" and to operate a dispensary under that program. First Am. Compl. at 3. The Controlled Substances Act, 21 U.S.C. §§ 801-846 (2006), provides criminal penalties for manufacturing, distributing, or possessing with intent to manufacture, distribute, or dispense any controlled substance and lists marihuana as a "Schedule I" controlled substance. 21 U.S.C. § 812, 841 (2006). In order to receive a license to cultivate medical marijuana, District regulations require defendant to sign an acknowledgment and attestation recognizing that "[g]rowing, distributing, and possessing marijuana in any capacity . . . is a violation of federal laws" and that the "law authorizing the District's medical marijuana program will not excuse any registrant from any violation of the federal laws governing marijuana." First Am. Compl., Exh. E.
II. CLAIMS AGAINST FEDERAL DEFENDANTS
Although plaintiff provides various bases for his claims against defendants Obama and Holder, including promissory estoppel, federal law and the Constitution, his claims against the federal defendants all concern the potential for federal criminal prosecution against him for violations of the CSA. The federal defendants argue that plaintiff lacks standing to pursue his claims because the harm he could suffer (prosecution under the CSA) is speculative in nature.
Before this Court may entertain the merits of his claims, plaintiff, as the party invoking federal jurisdiction, must establish that he has the requisite standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To establish the "irreducible constitutional minimum of standing," a plaintiff must allege (1) an "injury in fact" which is "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) "a causal connection between the injury and the conduct complained of"; and (3) a likelihood "that the injury will be redressed by a favorable decision." Id. (internal quotation marks and citations omitted).
A motion to dismiss for lack of standing constitutes a motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure because "the defect of standing is a defect in subject matter jurisdiction." Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cnty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). In other words, the factual allegations in the plaintiff's complaint must be presumed true, and the plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). At the same time, however, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor need it accept inferences that are unsupported by the facts set forth in the complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
With respect to his constitutional challenge to the CSA, plaintiff cites the Commerce Clause, Article I, Section 8, Article III, Section 3, the Ninth Amendment, and the Tenth Amendment, but not the First Amendment. See First Am. Compl. at 1-2. Therefore, plaintiff presents a "non-First Amendment preenforcement challenge to a criminal statute that has not reached the court through agency proceedings." Seegars v. Gonzales, 396 F.3d 1248, 1254 (D.C. Cir. 2005). Accordingly, the Court must "faithfully apply the analysis articulated by Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997)." Seegars, 396 F.3d at 1254. "Even when the criminal statute that a litigant challenges has not yet been enforced against her, the challenger's claim may be justiciable if the challenger can demonstrate that she faces a threat of prosecution under the statute which is credible and immediate, and not merely abstract or speculative. In the proper circumstances, such threats of enforcement can . . . give the threatened party standing." Navegar, 103 F.3d at 998. Nonetheless, the Court must "determine whether the plaintiff's decision to forego certain activity is truly motivated by a well-founded fear that engaging in the activity will lead to prosecution under the challenged statute." Id. at 999. "For preenforcement challenges to a criminal statute not burdening expressive rights and not in the form of appeal from an agency decision, [Navegar] appears to demand more than a credible statement by the plaintiff of intent to commit violative acts and a conventional background expectation that the government will enforce the law." Seegars, 396 F.3d at 1253.
Here, plaintiff has failed to allege facts indicating an actual or imminent injury. He indicates that he has taken various steps to become a purveyor of medical marijuana, including filing a "Letter of Intent" with the District, leasing property for the purpose of growing and/or dispensing marijuana, organizing with others for a license to grow medical marijuana, and forming a company to cultivate and dispense medical marijuana and advise others on cultivating and dispensing medical marijuana. See First Am. Compl. at 3, 10. He also asserts that he "has hanging over his head the threat of criminal prosecution" under the CSA and "potentially faces federal criminal prosecution for those actions and, in futuro, federal criminal prosecution." Id. at 11. Furthermore, plaintiff cites a memorandum from Deputy Attorney General James Cole indicating that "[s]tate laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA." Pl.'s Reply to Def.'s Opp'n to Pl.'s First Mot. for Prelim. Inj. [Docket Entry 16] at 2-3. Plaintiff argues that this is a "plain threat" to prosecute purveyors of medical marijuana and notes cases in which others have been prosecuted for distributing marijuana. Id. at 6-7. Furthermore, plaintiff argues that "Defendants have given neither Plaintiff nor this Court any assurance that the CSA will not be enforced against those in compliance with the D.C. Medical Marijuana Act -- indeed, given the threatening language of the Cole Memorandum, just the opposite can be assumed." Pl.'s Opp'n to Def.'s Mot. to Dismiss [Docket Entry 19] at 18.
These assertions fall short of the demonstration required under Navegar that plaintiff "faces a threat of prosecution under the statute which is credible and immediate, and not merely abstract or speculative." Navegar, 103 F.3d at 998. Plaintiff has not supported his claim of feared prosecution with alleged facts suggesting he is credibly threatened with immediate prosecution. Indeed, plaintiff's assertion that he has the threat of criminal prosecution "hanging over his head" rings of speculation and is not specific to him. Likewise, regardless of how one characterizes the Cole Memorandum, it contains no language indicating a specific threat or high probability of enforcement against plaintiff in particular. See Seegars, 396 F.3d at 1255 ("But plaintiffs allege no prior threats against them or any characteristics indicating an especially high probability of enforcement against them."); see also Navegar, 103 F.3d at 1001 ("[N]othing . . . indicates any special priority placed upon preventing these parties from engaging in specified conduct.").
Since plaintiff has failed to allege facts indicating an actual or imminent injury, he lacks standing to sue and the Court therefore lacks subject matter jurisdiction over the claims against the federal defendants. The Court will therefore grant the federal defendants' motion to dismiss, and defendants Obama and Holder will be dismissed from this case. Plaintiff's motion for a preliminary injunction ...