SAN FRANCISCO (CN) – A Bay Area medical marijuana dispensary that waged a successful battle against a crackdown by the feds will not see attorney fees because it can’t be considered a prevailing party because pot is still illegal under federal law, the Ninth Circuit ruled Tuesday.
The three-judge appellate panel affirmed a federal judge’s decision to deny Marin Alliance for Medical Marijuana’s request for attorney fees because it is not a “prevailing party” under the Equal Access to Justice Act.
The dispensary did not immediately return a phone call requesting comment.
In 2011, U.S. attorneys in California tried to shut down the dispensary by initiating civil forfeiture proceedings against its landlord and threatening its patients with prosecution. The dispensary responded by seeking a restraining order and a declaration that enforcement of the Controlled Substances Act unconstitutionally “prevents plaintiffs and similarly situated individuals from obtaining medical marijuana with a doctor’s recommendation.”
A federal judge initially denied the dispensary’s request. Congress intervened in 2015, however, by burying a law in a budget appropriations bill that forbade federal prosecution of the dispensary as long as it complied with California law, and a different federal judge blocked the feds’ efforts a short time later.
The dispensary sought attorney fees as the prevailing party, which the judge denied. On appeal, the Ninth Circuit panel found in an unpublished opinion that the dispensary didn’t exactly prevail.
“While the district court’s order suggests that enforcing either the injunction or federal law against MAMM would violate the appropriations rider, it is not an ‘enforceable entitlement’ preventing the government from attempting to do so,” the per curiam ruling says, citing Klamath-Siskiyou Wildlands Center v. U.S. Bureau of Land Management.
The appropriations rider may have barred prosecution of the dispensary, but it didn’t make marijuana legal on the federal level or require the “cessation of government action,” the panel wrote.
“MAMM thus received no ‘judicial relief’ and is not a ‘prevailing party’ entitled to fees under the Equal Access to Justice Act,” the panel wrote.
Greg Anton, the dispensary’s attorney, wasn’t pleased with the panel’s ruling.
“We prevailed, so I said I should get attorney fees. I appealed to the Ninth Circuit, and they did not agree,” Anton said. “I absolutely disagree with the court’s analysis under case law.”
He added it is difficult for a court to award attorney’s fees in cannabis-related cases.
The panel included Circuit Judges Johnnie Rawlinson and John Owens, and Chief U.S. District Judge Thomas Rice of the Eastern District of Washington, sitting by designation.