NOT FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

APR 7 2025

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JENNIFER MURPHEY, individually and No. 24-4085 on behalf of all others similarly situated, D.C. No. 2:22-cv-01224-JJT Plaintiff - Appellant,

v. MEMORANDUM*

UNITED STATES OF

AMERICA; MERRICK B.

GARLAND, Attorney General; ANNE MILGRAM, Administrator of the United States Drug Enforcement Administration; XAVIER BECERRA, Secretary of the Department of Health and Human Services; KRIS MAYES, Attorney General of the State of Arizona; ROBERT

M. CALIFF, Commissioner of Food and

Drugs, United States Food and Drug Administration,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Submitted April 1, 2025** Phoenix, Arizona

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: W. FLETCHER, FISHER***, and R. NELSON, Circuit Judges.

Plaintiff-Appellant Jennifer Murphey appeals from the district court’s final

order dismissing her first amended complaint without leave to amend. Murphey

seeks declaratory and injunctive relief for alleged constitutional and Administrative

Procedure Act (“APA”) violations of the Controlled Substances Act (“CSA”), the

Arizona Controlled Substances Act (“AZCSA”), and two international treaties

relating to drug enforcement. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a district court’s dismissal under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). Prutehi Litekyan: Save Ritidian v. U.S. Dep’t of Airforce,

128 F.4th 1089, 1105 (9th Cir. 2025). We affirm.

We agree with the district court that Murphey has Article III standing to

bring this pre-enforcement suit as to the CSA, AZCSA, and related regulations and

criminal provisions. “In order to invoke the jurisdiction of the federal courts, a

plaintiff must establish ‘the irreducible constitutional minimum of standing,’

consisting of three elements: injury in fact, causation, and a likelihood that a

favorable decision will redress the plaintiff’s alleged injury.” Lopez v. Candaele,

630 F.3d 775, 785 (9th Cir. 2010) (quoting Lujan v. Defs. of Wildlife, 504 U.S.

555, 560 (1992)).

*** The Honorable D. Michael Fisher, United States Circuit Judge for the Court of Appeals for the Third Circuit sitting by designation.

2 To establish a pre-enforcement injury-in-fact, Murphey must satisfy the

requirements listed in Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014).

Peace Ranch, LLC v. Bonta, 93 F.4th 482, 487 (9th Cir. 2024). “Under Driehaus,

a plaintiff demonstrates injury-in-fact by showing ‘[1] an intention to engage in a

course of conduct arguably affected with a constitutional interest, but [2]

proscribed by a statute, and [3] there exists a credible threat of prosecution

thereunder.’” Planned Parenthood Great Nw., Haw., Alaska, Ind., Ky. v.

Labrador, 122 F.4th 825, 836 (9th Cir. 2024) (alterations in original) (quoting

Driehaus, 573 U.S. at 159).

Murphey satisfies these requirements. First, she has alleged an intention to

engage in a course of conduct because she “currently” and “fully intend[s] to

continue . . . cultivating, possessing and/or using” the relevant controlled

substances. She also alleged that this course of conduct implicates her

constitutional interests. See Peace Ranch, 93 F.4th at 488 (“[T]his inquiry does

not require us to engage in a mini litigation of the claims.”). Second, the conduct

is proscribed by the CSA, AZCSA, and related regulations and criminal provisions.

Third, Murphey has demonstrated a “substantial” threat of enforcement. Driehaus,

573 U.S. at 164. “This final prong often rises or falls with the enforcing

authority’s willingness to disavow enforcement.” Peace Ranch, 93 F.4th at 490.

Neither Arizona nor federal officials have disavowed enforcement here. Having

3 established injury-in-fact, Murphey satisfies the other elements of Article III

standing. Her alleged injury is caused by the anticipated enforcement of the CSA,

AZCSA, and related regulations and criminal statutes, and it would be redressed if

a court ruled in her favor.

We also agree with the district court that Murphey’s challenges to the 1961

Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic

Substances are nonjusticiable. Murphey does not dispute that these international

treaties are non-self-executing. “Because non-self-executing treaty provisions are

not judicially enforceable, claims seeking to enforce them are nonjusticiable.”

Republic of Marshall Islands v. United States, 865 F.3d 1187, 1193 (9th Cir.

2017). Murphey also lacks standing for these claims because her injury is not

redressable. See id. at 1199. The conventions do not impose the criminal penalties

she seeks to avoid.

Finally, we agree with the district court that it lacked subject matter

jurisdiction over Murphey’s APA claim. Courts of appeals have exclusive original

jurisdiction over “all final determinations, findings, and conclusions” by the DEA

when applying the CSA. 21 U.S.C. § 877. Murphey has not explained how her

APA claim does not challenge the DEA’s “final determinations, findings, or

conclusions.”

4 On the merits, we conclude that the district court correctly dismissed

Murphey’s free speech and procedural due process claims under Rule 12(b)(6).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” City of

Oakland v. Oakland Raiders, 20 F.4th 441, 451 (9th Cir. 2021) (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)) (quotation marks omitted). We only address

the federal law applicable to Murphey’s claims because she does not raise any

distinct state law arguments.

Murphey failed to state a free speech claim under either the U.S.

Constitution or the Arizona Constitution. The First Amendment protects conduct

“inten[ded] to convey a particularized message” and when “in the surrounding

circumstances the likelihood was great that the message would be understood by

those who viewed it.” Spence v. Washington, 418 U.S. 405, 410–11 (1974).

Murphey has not pointed to any particularized message that she intends to convey

by using controlled substances. Her “Freedom of Thought” theory also fails.

“[T]he mere fact that . . . some human ‘utterances’ or ‘thoughts’ may be

incidentally affected does not bar the State from acting to protect legitimate state

interests.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973).

Murphey also failed to state a procedural due process claim under either the

U.S. Constitution or the Arizona Constitution. “A procedural due process claim

5 consists of two elements: (i) deprivation by state action of a protected interest in

life, liberty, or property, and (ii) inadequate state process.” Reed v. Goertz, 598

U.S. 230, 236 (2023). Murphey has not alleged sufficient facts to support a finding

of inadequate process. It is unclear what processes Murphey believes were

constitutionally required but not provided. Murphey primarily contends that

scheduling decisions under the CSA are arbitrary and biased. But this Court has

repeatedly rejected similar constitutional challenges to cannabis scheduling.

United States v. Christie, 825 F.3d 1048, 1066 (9th Cir. 2016); United States v.

Miroyan, 577 F.2d 489, 495 (9th Cir. 1978), overruled on other grounds as

recognized by United States v. Pineda-Moreno, 688 F.3d 1087, 1090–91 (9th Cir.

2012).

AFFIRMED.

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