James

Opinion by Judge FISHER; Partial Concurrence and Partial Dissent by Judge BERZON.

ORDER

Judge Pregerson and Judge Fisher have voted to deny the petition for rehearing and rehearing en banc. Judge Berzon has *396 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 concurrence/partial dissent filed May 21, 2012, will be filed concurrently with this order.

No further petitions for rehearing will be considered.

OPINION

The plaintiffs are severely disabled California residents. They alleged that “[Conventional medical services, drugs and medications” have not alleviated the pain caused by their impairments. Each of them has therefore “obtained a recommendation 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…

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 statute is ambiguous. But unlike the majority, I would not declare a near-draw. Instead, looking at the words alone, I would conclude that the plaintiffs have much the better reading, but not by enough to be comfortable *406 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 them 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 any circumstance. And although, in the end, I might well be inclined to agree with the result the…