UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

MONTG OMERY BLAIR SIBL EY, P laintif f, v. Civil Action No. 11-919 (JD B) BARACK

OBAMA, et

al., Defendan ts.

MEMORAN DUM OP INION AND ORDER Plaintiff is a prospec tive participa nt in the District of Columbia’s nasce nt medical marijuana prog ram. Plaintiff asse rts a cla im ag ainst defe ndants Vince nt Gray , the Mayor of the District of Columbia, and the District’s De partment of H ealth (c ollectively , “the District” or “the District defe ndants”). T he Court has pre viously denied plaintiff’ s motions for a tempora ry restra ining or der a

nd a pre liminary

injunction restrainingthe District from r equiringapplicants to the medical mar ijuana program to sig n an ac knowledg ment and attestation of fede ral law s g overningmarijuana . Plaintiff also asserte d claims ag ainst defe ndants President B ara ck Obama and Attorne y

Gene ral Er ic H. Holder , J r. (c ollectively , the “f eder al def endants” ) re g arding President Obama ’s ca

mpaig n statements addr essingthe treatment of medica l marijuana by his administration and the De partment of Justice’s cr iminal prosecution of medic al marijuana distributors. The Court previously dismiss ed these claims for la ck of standing

. Now bef ore the Court are motions filed by both plaintiff and the District de fenda nts. The District has filed a

motion to di smiss t he re maining c laim, Count VI Iof plaintiff’s a mended complaint. Plaintiff has filed two motions for re consideration and/or clar ification of the

1Memorandum Opinion and O rder filed Oc tober 21, 2011 [Docket Entry 47]. For the re asons descr ibed below, the Court will g rant the D istrict defe ndant’s motion to dism iss. The Court will also deny plaintiff’s motions for re consideration. I . Ba ckg round The District of Columbia is in the proce ss of startinga medica l marijuana pr og ram. See D.C.Code § 7–1671.01, et seq

. (2011); Emer g ency and F ourth Proposed Rulemakingto Implement the L eg alization of Marijuana f or Medica l Treatment Initiative of 1999, Rule 22–C100, D.C. Reg. V ol. 58, No. 32 (Aug . 12, 2011). Plaintiff has “publicly expressed his intent . . . to become a

licensed me dical mar ijuana cultivator” and to oper ate a dispensary

under that prog ram. F irst Am. Compl . at 3. In order to become lice nsed to do so, District reg ulations require the plaintiff “to e x ecute an af fidavit” re cognizi ngthat “[g]rowing , distributing, and possessing ma

rijuana in a

ny capa city . . . is a violation of fede ral law s” and that the “law authorizing the D istrict's me dical mar ijuana program will not excuse any reg istrant from any violation of the fede ral law s g overning marijuana .” F irst Am. Compl ., Ex . E. I I . Motion to Dism iss The District de fenda

nts have filed a

motion to di smiss, arguing, a mong othe r thing s, that the plaintiff’s c laim ag ainst them is now moot. The Court will gra nt this m otion, as the claim ag ainst the District has bee n rende red moot by the plaintiff’s subseque nt actions. Be fore rea chingthe merits of a plaintiff’s cla im, this Court must first establish that ithas jurisdiction over the matter . Article I I Iof the Constituti on require s that the court r eview only “ca ses and c ontroversie s.” See D eF unis v. Odeng aar d, 416 U.S. 312, 316 (1974); North Car olina v. Rice, 404 U.S. 244, 246 (1971). When a decision on a matter is mere ly advisory , and if a

2decision “c annot af fec t the rig hts of litigants in the ca se bef ore [the cour

t] ,” a c ase is moot and cannot be hear d. Rice, 404 U.S. at 246. Her e, plaintiff ha s broug ht suit aga inst defenda nts involved in administ eringthe District’s medica l marijuana pr og ram. He seeks de clar atory relief on the g rounds that by complying w ith the District’s rules and signing the aff idavit in question, he would “expose [hi mself] to a real a

nd appre ciable r isk of self-inc rimination.” First Am. Compl. at 18. Howeve r, afte r his motions for a tempora ry restra ining or der a

nd a pre liminary

injunction were denied, plaintiff sig ned the a ffidavit in question and a pplied to the prog ram. See Def s.’s Supplement to their Submissi on in Opp' n to Pl.’s S econd Mot. for a Prelim. Inj., Ex . 1 [Docket Entry 41]. Acc ordingto the fede ral de fenda nts, plaintiff was also re cently denied the lice nse. See Notice to the Court [Docket Entry

52] at 2. A ruling on whe ther the a ffidavit ca uses plaintiff to incriminate himself would have no e ffe ct at this point, as he has a lrea dy signe d the af

fidavit. No ac tion he might yet take w ould be af fec ted by a rulingof this Court on this issue. I t might be sug g ested that this case prese nts a situation that is “capa ble of re petition, y et evadingrevie w,” a

nd as such c an be he ard de spite the lack of a cur rent c ontroversy . See S. Pac. Terminal Co. v. I CC, 219 U.S. 498, 515 (1911); Roe v. W ade, 410 U .S. 113, 125 (1973). While plaintiff may

choose to a

pply for distribution and cultivation permits ag ain, thus makingthese circ umstances “ capa

ble of re petition,” there is no reason to be lieve that they would evade revie w in a future dispute. I f plaintiff is pre sented with a similar a ffidavit in the future , he may challeng e it at that juncture

. Be cause any

decision of this court would not cha ng e the outcome of a c ase or controve rsy , plaintiff’s cla im ag ainst the District defe ndants is moot. Theref ore, the Court will g rant the D istrict's motion to dismis s. 3I I I . Motions for Reconsider ation

Plaintiff has filed two motions for re consideration and/or clar ification of the Court’ s October 21, 2011 Orde r [Docket Entry 46] and acc ompanying Me morandum Opinion [Docket Entry 47] gra nting the f

eder al def endants' motion to di smiss and denying pla intiff’s motion for a preliminary

injunction ag ainst the District defe ndants. Although the re is no F eder al Rule of Civil P roce dure that expressly addre sses motions for r econside ration, see L ance v. United Mine Workers of Am. 1974 Pension Trust, 400 F. Supp. 2d 29, 31 (D.D.C. 2005), be cause the Court' s opinion did notfully adjudicate all of plaintiff’s claims, his motion i s proper ly char acte rized as a motion pursuant to Rule 54(b). See Fe d. R. Civ. P. 54(b) (whe re c ourt resolve s “fe wer than all the cla ims,” it may revise “ its opini on at any time befor e the e ntry

of a judg ment adjudicatingall the claims and a ll the parties' rig hts and liabiliti es”) . “The Court has broad disc retion to hea r a motion for r econside ration brought under Rule 54(b),” I sse v. Am. Univ., 544 F. Supp. 2d 25, 29 (D .D.C. 2008), and r econside ration is appropr iate “a s justice require s.” Cobell v. Norton, 355 F .Supp.2d 531, 540 (D.D.C. 2005). “Considerations a court may take into ac count under

the ‘a s justice require s' standard inc lude whether the cour t ‘patently ’ misunderstood the par ties, made a

decision beyond the adve rsar ial issues prese nted, made a

n err or in failingto consider c ontrolling de cisions or data, or whether a controllingor sig nificant c hang e in the law ha s occur red.” Wil liams v. J ohanns, 555 F . Supp. 2d 162, 164 (D.D.C. 2008). Revie w under Rule 54(b) “ amounts to determining , within the Court's discretion, whe ther re considera tion is necessar

y under the rele vant circ umstances.” Cobell, 355 F. Supp. 2d at 540. In plaintiff’s first motion for re consideration, he alleg es that the Court fa iled to follow a controllingdecision. Plaintiff alleg es that the Court ig nored B abbit v. United Fa rm Workers 4Nat’l Union , 442 U.S. 289 (1979), and c laims that this precede nt require s plaintiff to plead only that prosec ution under the statute he challeng es is “re motely possible.” Howe ver, B abbit must be

rea d in light of late r pre cede nt from this Circuit. S ee See g ars v. Gonzales, 396 F .3d 1248 (D.C. Cir. 2005); Nave g ar, Inc. v. United States, 103 F .3d 994 (D.C. Cir. 1997). B eca use plaintiff prese nted a “ non-F irst Amendment cha lleng e to a c riminal statute that has not rea ched the court throug h ag ency

proce eding s,” Seeg ars, 396 F .3d at 1254, this Court corre ctly applied the analy sis framed in Na

veg ar. The ref

ore, the Court will deny

this mot ion. 1 In plaintiff’s sec ond motion for rec onsideration, he c laims he has new evidenc e that could cur e his defe ct of standing . Plaintiff states that afte r this Court filed its October 21, 2011 opinion he rec eived notice from his bank ter minating the c heckingacc ount of his company , the Medicinal Mar ijuana Company of Amer ica. Plaintiff sug g ests that this account wa s closed due to DrugEnforc ement Administration pressure on banks not to do business with medical marijuana companies. B ut this allege d injury , while re lated to plaintiff' s pursuit of a license to distribute marijuana , is not related to the pr osecution his complaint sug g ested mig ht occur in this case. The evidenc e also doe s not show that his account wa s closed pursua nt to any fede ral statute. Fur thermore , plaintiff has not shown that the f eder al or District de fenda nts had any

role in his bank’s de cision to close his acc ount. Naveg ar r equire s that a plaintiff show he “fa ces a threat of prosec ution under the statute whic h is credible a nd immediate, not mere ly abstrac t or speculative.” Naveg ar, 103 F .3d at 998. This action by his bank does not incre ase the threat that To the extent that plaintiff’s other c laims impl icate his prospe ctive par ticipation in the 1 D.C. Medical Ma

rijuana A ct, they

may have a lso been re ndere d moot. Accor ding to the f eder al defe ndants, plaintiff’s c ompany was not selec ted for the cultivation or distribution progr am. See Notice to the Court at 2. Plaintiff’s c laims ag ainst the fede ral de fenda nts conce rninghis possibl e prosec ution could not come to pass if he ha s been r efuse d a license to operate a c ultivation center and dispensar

y . 5plaintiff will be prosec uted under the statute he c halleng es. The Court will there fore deny this motion. I V. Conclusion Acc ording ly , it is hereby ORDERED that plaintiff' s motion for rec onsideration [Docket Entry 48] i s DENIED ; it is further ORDERED that plaintiff’s sec ond motion for rec onsideration [Docket Entry 49] i s DENIED ; it is further ORDERED that defe ndants Gra y and the De partment of H ealth’s motion to dismi ss plaintiff’s ame nded complaint [Docket Entry 37] i s GR

ANTED and def

endants Gr ay

and the Depa rtment of He alth are dismiss ed fr om this case. Ea ch of the claims in plaintiff' s complaint has now be en dismissed.

SO ORDERED

.

/s/ J OHN D. B ATES United States District J udg e Dated: F ebrua

ry 2, 2012

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