Appeal from the United States District Courtfor the Northern CaliforniaCharles R. Breyer, District Judge, PresidingArgued and SubmittedApril 13, 1999--San Francisco, CaliforniaFiled September 13, 1999Before: Mary M. Schroeder, Stephen Reinhardt, andBarry G. Silverman, Circuit Judges.Per Curiam Opinion
_____________________________COUNSEL Robert A. Raich, Oakland, California; Gerald F. Uelmen,Santa Clara University School of Law, Santa Clara, Califor-nia; and Annette P. Carnegie, Morrison & Foerster, San Fran-cisco, California, for the appellants-defendants.Mark B. Stern, Assistant Attorney General, United StatesDepartment of Justice, Washington, D.C., for the plaintiff-appellee.
_____________________________OPINION PER CURIAM:This interlocutory appeal involves a preliminary injunctionentered at the United States' request, to stop the distributionof cannabis in the wake of California's initiative supportingthe medical use of marijuana. The district court held that thedistribution of marijuana by certain cannabis clubs and theiragents, including appellant, Oakland Cannabis Buyers' Coop-erative and Jeffrey Jones (collectively "OCBC"), likely vio-lates the Comprehensive Drug Abuse Prevention and ControlAct of 1970 (the "Controlled Substances Act"), 21 U.S.C.S 841(a)(1). See United States v. Cannabis Cultivators Club,5 F. Supp. 2d 1086, 1105 (N.D. Cal. 1998). The district courtalso indicated that it would consider in subsequent contemptproceedings a defense that a particular distribution was justi-fied by a medical necessity. Id. at 1102. OCBC did not appealthe district court's order enjoining the distribution of mari-juana by cannabis clubs. Instead, OCBC seeks to appeal threesubsequent orders: (a) an order denying OCBC's motion todismiss the complaint on the ground that an Oakland Cityordinance makes it immune from liability under 21 U.S.C.S 885(d); (b) an order subsequently purged and vacated thatfound OCBC in contempt of the injunction; and (c) an orderdenying OCBC's motion to modify the injunction to permitcannabis distribution to persons having a doctor's certificatethat marijuana is a medical necessity for them.We lack jurisdiction over the appeal from the denial of themotion to dismiss and from the contempt order that has beenpurged. We have jurisdiction over the appeal from the denialof the motion to modify. We do not vacate the injunction, butremand for the district court to consider modifying the order.Denial of the Motion to DismissThe district court denied the defendants' motion to dismissthat was grounded in the Oakland City Council's attempt toimmunize OCBC under the Controlled Substances Act. Thedistrict court held that section 885(d) of the Controlled Sub-stances Act is intended to protect state law enforcement offi-cials when they engage in undercover drug operations, andthese defendants do not engage in such activities.[1] We lack jurisdiction of the appeal because the denial ofa motion to dismiss is generally not appealable. See 28 U.S.C.SS 1291 & 1292 (granting appellate jurisdiction over finalorders and limited interlocutory orders). The denial of themotion to dismiss is not one of the interlocutory orders thatcan be appealed under S 1292, and it is not a final judgmentunder S 1291. See, e.g., Credit Suisse v. United States Dist.Ct., 130 F.3d 1342, 1345-46 (9th Cir. 1997).OCBC contends we have jurisdiction under 28 U.S.C.S 1292(a)(1) authorizing, inter alia, appellate jurisdiction overan interlocutory order "continuing . . . or refusing to dissolveor modify injunctions." OCBC asks us to treat the districtcourt's denial of the motion to dismiss as, in effect, a continu-ance of the injunction and a refusal to dissolve it. OCBCrelies upon Jung Hyun Sook v. Great Pacific Shipping Co.,632 F.2d 100, 102 n.4 (9th Cir. 1980).[2] The motion to dismiss in Jung Hyun Sook, however,was not a motion to dismiss the action in its entirety, but amotion intended specifically to dissolve an injunction. Therethe district court had enjoined the further prosecution of aJones Act suit pending the determination of a petition to limitliability. Id. at 102. The district court's denial of the motionto dismiss the limitation of liability petition was appealablebecause its denial continued in effect the injunction againstfurther prosecution of the Jones Act suit. The purpose of themotion to dismiss in that case was not to decide the merits ofthe litigation, but only to dissolve the injunction. See 16Wright & Miller, Federal Practice and Procedure , S 3924.2,at 198-99 n.6 (2d ed. 1996). The motion to dismiss in thiscase was intended to resolve the entire dispute on the merits.While one effect of granting OCBC's motion to dismiss inthis case would have been to dissolve the preliminary injunc-tion, the broader purpose was to resolve the case in defen-dants' favor. The general rule barring appeals from the denialof motions to dismiss, therefore, must apply. See CreditSuisse, 130 F.3d at 1345-46 ("The district court's denial of[defendants'] motion to dismiss is not a `final decision' withinthe meaning of 28 U.S.C. S 1291, and it is therefore notimmediately reviewable.").[3] Nor did the district court's denial of the motion to dis-miss constitute an order "continuing" the injunction within themeaning of 28 U.S.C. S 1292(a)(1). An order that "continues"an injunction under that statute is an order that extends theduration of the injunction that would otherwise have dissolvedby its own terms. See 16 Wright & Miller, supra, at 196; seealso Public Serv. Co. of Colorado v. Batt, 67 F.3d 234, 236-37 (9th Cir. 1995); In re Fugazy Express, Inc. , 982 F.2d 769,777 (2d Cir. 1992).[4] OCBC also argues that the denial of the motion to dis-miss is appealable as a "collateral order" under the theory ofthe Supreme Court's decision in Mitchell v. Forsyth, 472 U.S.511 (1985). Mitchell permits appeal from orders denyingimmunity from suit to government officials on damage claimsfor violations of federal rights. Such orders are immediatelyreviewable because the immunity at stake is not merely animmunity from liability but an "immunity from suit" that iseffectively lost if a case goes to trial. See id. at 526. Section885(d) is not such an immunity from suit, but is on its facesimply an immunity from liability. It provides that "no civilor criminal liability will be imposed" upon law enforcementofficers who engage in drug activity as part of their duties. 21U.S.C. S 885(d). Thus, OCBC can obtain effective review ofits liability (or immunity) under the Controlled SubstancesAct after the district court has rendered a final judgment.[5] In addition, the order being appealed is not a "collateralorder" involving an important issue separate from the meritsof the lawsuit. See Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546
(1949). The merits of the government's suitdepend squarely upon whether or not OCBC is immune fromliability under S 885(d).The Contempt OrderOCBC appeals the district court's order finding it in con-tempt and modifying the preliminary injunction so as toempower the U.S. Marshal to seize OCBC's offices. Thecourt neither fined nor jailed members of OCBC as a resultof the contempt. The district court subsequently vacated thismodification to the injunction on October 30, 1998 afterOCBC told the court that it would comply with the injunction.Consequently, OCBC was permitted to re-enter its offices.[6] The government argues that this appeal is moot becausethe modification order was vacated and the contempt purged."A long line of precedent holds that once a civil contemptorder is purged, no live case or controversy remains foradjudication." Thomassen v. United States, 835 F.2d 727, 731(9th Cir. 1987); accord In re Campbell, 628 F.2d 1260, 1261(9th Cir. 1980). However, a party asserting that an issue ismoot must demonstrate that there is no reasonable expectationthat the violation will recur. See County of Los Angeles v.Davis,
440 U.S. 625, 631
(1979); Campbell , 628 F.2d at 1261.[7] This court has held that a purged contempt order ismoot unless there is "near certainty" that the violation willrecur. Campbell, 628 F.2d at 1262. That is not the case here.In its reply brief, OCBC reiterates that it has promised the dis-trict court that it will comply with the injunction. The onlyway for the violation to recur is if OCBC breaks its promise.Clearly, it is not a "near certainty" that OCBC will do so.Moreover, although the purged contempt order at issue inCampbell was not moot, the court explicitly limited its resultto the facts of that case: "We emphasize that were it not forthe statement of the grand jury foreman [informing the wit-ness that he would be required to testify again in the future],we would be inclined to find that the purging of the contemptorders mooted the present appeals." Id. at 1261.[8] OCBC also contends that the appeal of the contemptorder is not moot because it is "capable of repetition, yetevading review." An issue may evade review because of aninherent limit in the duration of a challenged action that pre-vents full litigation before it ends. See Phoenix Newspapers,Inc. v. United States Dist. Ct., 156 F.3d 940, 945 (9th Cir.1998). However, nothing inherently limited the duration ofOCBC's contempt other than its own decision to purge. Theappeal is now moot because OCBC voluntarily purged thecontempt by declaring that it would comply with the injunc-tion. Had OCBC chosen to remain in contempt to this day, theappeal would not be moot because this court could have pro-vided a remedy.[9] OCBC argues that even if the denial of the motion todismiss and the modification order are not in and of them-selves appealable, the court should assert pendent appellatejurisdiction because they are "inextricably intertwined" withthe denial of the motion to modify the injunction, which isappealable. See Swint v. Chambers County Comm'n , 514 U.S.35, 51 (1995). We have held that the "inextricablyintertwined" doctrine should be narrowly construed; more isrequired than that separate issues rest on common facts. SeeCalifornia v. Campbell, 138 F.3d 772, 778 (9th Cir.), cert.denied, 119 S. Ct. 64 (1998). The legal theories on which themotion to dismiss, the contempt order, and the motion tomodify are independent of each other. Each required applica-tion of different legal principles. They are not therefore so"intertwined" as to necessitate simultaneous review.Denial of the Motion to ModifyOCBC contends that the district court abused its discretionby refusing to modify its injunction to permit cannabis distri-bution to patients for whom it is a medical necessity. A fewdays after the district court issued its contempt citationinstructing the Marshals to padlock its premises, OCBC askedthe district judge to modify the injunction to allow continuingcannabis distribution to patients whose physicians certify that(1) the patient suffers from a serious medical condition; (2) ifthe patient does not have access to cannabis, the patient willsuffer imminent harm; (3) cannabis is necessary for the treat-ment of the patient's medical condition or cannabis will alle-viate the medical condition or symptoms associated with it;(4) there is no legal alternative to cannabis for the effectivetreatment of the patient's medical condition because thepatient has tried other legal alternatives to cannabis and hasfound them ineffective in treating his or her condition or hasfound that such alternatives result in intolerable side effects.These factors were modeled on this court's recognition of anecessity defense to violations of federal law in United Statesv. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989).[10] The denial of a motion to modify an injunction is inde-pendently appealable under S 1292(a)(1) as one of the appeal-able interlocutory orders denominated in that section.Therefore, we have jurisdiction to review the order denyingOCBC's motion for modification.[11] The district court summarily denied OCBC's motion,saying that it lacked the power to make the requested modifi-cation because "its equitable powers do not permit it to ignorefederal law." In doing so, the district court misapprehendedthe issue. The court was not being asked to ignore the law. Itwas being asked to take into account a legally cognizabledefense that likely would pertain in the circumstances.[12] The government did not need to get an injunction toenforce the federal marijuana laws. If it wanted to, it couldhave proceeded in the usual way, by arresting and prosecutingthose it believed had committed a crime. Had the governmentproceeded in that fashion, the defendants would have beenable to litigate their necessity defense under Aguilar in duecourse. However, since the government chose to deal withpotential violations on an anticipatory basis instead of prose-cuting them afterward, the government invited an inquiry intowhether the injunction should also anticipate likely excep-tions. This gives rise to a drafting issue -- crafting an injunc-tion that is broad enough to prohibit illegal conduct, butnarrow enough to exclude conduct that likely would belegally privileged or justified.[13] In Northern Cheyenne Tribe v. Hodel, we held thatcourts retain broad equitable discretion when it comes toinjunctions against violations of federal statutes unless Con-gress has clearly and explicitly demonstrated that it has bal-anced the equities and mandated an injunction. 851 F.2d1152, 1156 (9th Cir. 1988). Here, although the governmentmay be entitled to its requested injunction, there is no evi-dence that Congress intended to divest the district court of itsbroad equitable discretion to formulate appropriate reliefwhen and if injunctions are sought. Further, there is no indica-tion that the "underlying substantive policy" of the Act man-dates a limitation on the district court's equitable powers. Id.at 1156.[14] The district court erred in another respect as well. Indeciding whether to issue an injunction in which the publicinterest would be affected, or whether to modify such aninjunction once issued, a district court must expressly con-sider the public interest on the record. The failure to do soconstitutes an abuse of discretion. Northern Cheyenne Tribe,851 F.2d at 1156; American Motorcycle Association v. Watt,714 F.2d 962, 965 (9th Cir. 1983); Carribean Marine Serv.Co. v. Baldridge, 844 F.2d 668, 678 (9th Cir. 1988). OCBChas identified a strong public interest in the availability of adoctor-prescribed treatment that would help ameliorate thecondition and relieve the pain and suffering of a large groupof persons with serious or fatal illnesses. Indeed, the City ofOakland has declared a public health emergency in responseto the district court's refusal to grant the modification underappeal here. Materials submitted in support of OCBC'smotion to modify the injunction show that the proposedamendment to the injunction clearly related to a matter affect-ing the public interest. Because the district court believed thatit had no discretion to issue an injunction that was more lim-ited in scope than the Controlled Substances Act itself, it sum-marily denied the requested modification without weighing orconsidering the public interest.[15] We have no doubt that the district court could havemodified its injunction, had it determined to do so in the exer-cise of its equitable discretion. The evidence in the record issufficient to justify the requested modification. OCBC sub-mitted the declarations of many seriously ill individuals andtheir doctors who, despite their very real fears of criminalprosecution, came forward and attested to the need for canna-bis in order to treat the debilitating and life threatening condi-tions.In short, OCBC presented evidence that there is a class ofpeople with serious medical conditions for whom the use ofcannabis is necessary in order to treat or alleviate those condi-tions or their symptoms; who will suffer serious harm if theyare denied cannabis; and for whom there is no legal alterna-tive to cannabis for the effective treatment of their medicalconditions because they have tried other alternatives and havefound that they are ineffective, or that they result in intolera-ble side effects.[16] The government, by contrast, has yet to identify anyinterest it may have in blocking the distribution of cannabisto those with medical needs, relying exclusively on its generalinterest in enforcing its statutes. It has offered no evidence torebut OCBC's evidence that cannabis is the only effectivetreatment for a large group of seriously ill individuals, and itconfirmed at oral argument that it sees no need to offer any.It simply rests on the erroneous argument that the districtjudge was compelled as a matter of law to issue an injunctionthat is coextensive with the facial scope of the statute.[17] The district court, accepting the government's argu-ment that it lacked the authority to grant the requested modifi-cation, failed to undertake the required analysis andsummarily denied OCBC's request. Accordingly, we reversethe order denying the modification and remand. On remand,the district court is instructed to reconsider the appellants'request for a modification that would exempt from the injunc-tion distribution to seriously ill individuals who need cannabisfor medical purposes. In particular, the district court isinstructed to consider, in light of our decision in United Statesv. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989), the criteria fora medical necessity exemption, and, should it modify theinjunction, to set forth those criteria in the modification order.The panel will retain jurisdiction over any further appealsin this case.The case is REMANDED for further proceedings consis-tent with this opinion. the end