FILED

NOT FOR PUBLICATION MAY 15 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MONTANA CAREGIVERS No. 12-35110

ASSOCIATION, LLC.; MCM

CAREGIVERS, INC.; RANDY M. D.C. No. 9:11-cv-00074-DWM

LEIBENGUTH; FOUR SEASONS

GARDENING; LUKE MULVAUGH;

PAUL SCHMIDT; EIGHT HELPING MEMORANDUM *

CENTERS AND HELPING CENTER

FOUNDATIONS; AARON DURBAN;

MONTANA CANNABIS; SALT

SPRINGS, LLC; SLEEPING GIANT

CAREGIVERS, INC.; CHRISTOPHER

W. WILLIAMS; OUTLAW HILL

HEALTH SUSTAINABILITY

INSTITUTE; JOHN KEVIN MOORE,

Plaintiffs - Appellants,

v.

THE UNITED STATES OF AMERICA;

ERIC H. HOLDER, Jr., Attorney General;

MICHAEL W. COTTER; DEA SPECIAL

AGENT WESLEY K SMITH; JOHN

DOES 1-10; UNKNOWN DEA, ATF,

AND FBI AGENTS AND OFFICIAL,

Defendants - Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Submitted May 7, 2013 ** Portland, Oregon

Before: GOODWIN, REINHARDT, and BERZON, Circuit Judges.

Appellants Montana Caregivers Association, LLC et al. (“Montana

Caregivers”) appeal the district court’s dismissal of their amended complaint

alleging violations of their Fourth, Fifth, Ninth, and Tenth Amendment rights, as

well as a Bivens claim against federal officials for the alleged constitutional

violations. We review de novo the district court’s dismissal of a complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). W. Radio Servs. Co. v.

Qwest Corp., 678 F.3d 970, 975 (9th Cir. 2012). We affirm.

1. Appellants’ assertion that the Controlled Substances Act (“CSA”), 21

U.S.C. § 801 et seq., exceeded Congress’ commerce power is foreclosed by the

Supreme Court’s decision in Gonzales v. Raich (Raich I), 545 U.S. 1 (2005). The

regulation of marijuana under the CSA is “squarely within Congress’ commerce

power because production of the commodity . . . has a substantial effect on supply

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 and demand in the national market for that commodity.” Id. at 19; see also id. at

25 (noting that “the activities regulated by the CSA are quintessentially

economic”). Montana Cannabis Industry, participating as Amicus Curiae in

support of Montana Caregivers’ appeal, argues that we should reexamine the

“substantial effects” doctrine. We may not do so, as we are bound by Raich I, a

“directly control[ling]” decision by the Supreme Court. Agostini v. Felton, 521

U.S. 203, 237 (1997).

2. “[I]f Congress acts under one of its enumerated powers, there can be no

violation of the Tenth Amendment.” Raich v. Gonzales (Raich II), 500 F.3d 850,

867 (9th Cir. 2007) (quoting United States v. Jones, 231 F.3d 508, 515 (9th Cir.

2000)); see also United States v. Jinian, — F.3d —, 2013 WL 1198086, at *11 (9th

Cir. Mar. 26, 2013). That conclusion “applies regardless of whether the federal

legislation displaces laws enacted under the States’ ‘police powers.’” Hodel v. Va.

Surface Min. and Reclamation Ass’n, Inc., 452 U.S. 264, 291 (1981); see also

United States v. Comstock, 130 S. Ct. 1949, 1962 (2010).

3. Montana Caregivers’ Ninth Amendment claim fails for similar reasons.

“[T]he Ninth Amendment ‘has not been interpreted as independently securing any

constitutional rights for purposes of making out a constitutional violation.’” San

Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996)

3 (quoting Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991)). So

long as Congress acts pursuant to an enumerated power, and does not exceed a

“specific limitation” on that power, an “objection . . . that the exercise of [that]

power infringes upon rights served by the ninth and tenth amendments . . . must

fail.” Barton v. C.I.R., 737 F.2d 822, 823 (9th Cir. 1984) (per curiam). Montana

Caregivers do not allege that the government’s enforcement of the CSA exceeded

any such “special limitation.”

4. Nor is there any merit to Montana Caregivers’ argument that the Fifth

and Ninth Amendments together protect a fundamental right to cultivate marijuana

for medical purposes. That argument is squarely foreclosed by Raich II, which

rejected the notion that “the Due Process Clause embraces a right to make a

life-shaping decision on a physician’s advice to use medical marijuana.” 500 F.3d

at 864. Montana Caregivers do not directly challenge that holding, which, in any

event, could be overturned only by calling for en banc consideration. See United

States v. Parker, 651 F.3d 1180, 1184 (9th Cir. 2011).

4 5. Montana Caregivers do not challenge the district court’s dismissal of its

Fourth Amendment, Fifth Amendment procedural due process, or Bivens claims.1

Those claims are therefore waived. Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.

1994).

AFFIRMED.

1 Amicus Montana Cannabis Industry does raise the Fourth Amendment, Fifth Amendment procedural due process, and Bivens claims. However, we “do not review issues raised only by an amicus curiae.” Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 (9th Cir. 1998) (citing Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir. 1993)).

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