City of Oakland v. Holder et al

Filing 46

PRELIMINARY QUESTIONS FOR JANUARY 31, 2013 HEARING ON MOTION TO DISMISS. Signed by Judge Maria-Elena James on 1/30/2013. (mejlc2, COURT STAFF) (Filed on 1/30/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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CITY OF OAKLAND,
Plaintiff,

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v.

No. C 12-05245 MEJ
Related Cases: No. C 12-3566 MEJ
No. C 12-3567 MEJ

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ERIC HOLDER, Attorney General of the
United States; and MELINDA HAAG, U.S.
Attorney for the Northen District of California,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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PRELIMINARY QUESTIONS FOR
JANUARY 31, 2013 ORAL
ARGUMENT

Defendants.
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Pending before the Court is Defendants’ Motion to Dismiss Plaintiff City of Oakland’s

15 Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)
16 and for failure to state a claim pursuant to Rule 12(b)(6). Dkt. No. 24. The Motion is set for hearing
17 before the Court on January 31, 2013. The Court has thoroughly reviewed the parties’ briefs and
18 cited authorities. To assist counsel in their preparation for the hearing, the Court presents the
19 following questions to counsel to guide them in their argument. The following questions represent
20 key points raised in the parties’ briefs that require clarification, but are not exclusive.
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22 1.

There appears to be some dispute regarding which provisions of the Administrative Procedure

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Act authorize Oakland’s claims. As an initial matter, Oakland should clarify this point.

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Relatedly, in ¶ 7 of its Complaint, Oakland alleges that subject matter jurisdiction exists

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pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702. Oakland further alleges that it seeks a

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declaratory judgment and injunctive relief pursuant to the Declaratory Judgment Act, 28

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U.S.C. §§ 2201-2202, and the Administrative Procedure Act, 5 U.S.C. §§ 702, 706. If the

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Court finds that Oakland cannot proceed with its claims under the APA, can Oakland’s claims

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proceed under the Declaratory Judgment Act?

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With respect to APA § 704’s requirement that there be no adequate remedy in court, is it

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sufficient that a judicial remedy simply exists, or must the plaintiff actually be able to avail

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itself of the remedy for it to be adequate?

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claimant under Supplemental Rule G(5) to collaterally attack a forfeiture proceeding by filing

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an APA claim renders Rule G’s standing requirements meaningless and allows individuals to

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avoid the time limit for filing a claim. What is Oakland’s response? The Government also

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For the Northern District of California

For Oakland: The Government argues that allowing individuals who lack standing to be a

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UNITED STATES DISTRICT COURT

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contends that accepting Oakland’s argument would mean that any individual who may be

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affected by the forfeiture could seek to challenge it pursuant to the APA. Where is the line

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drawn at who may then challenge a forfeiture proceeding? For instance, could a company that

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manufactures and sells articles used to smoke marijuana to Harborside’s customers and whose

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business would potentially be disrupted if Harborside can no longer operate also bring an

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APA claim challenging the forfeiture proceeding?

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19 4.

How does Oakland respond to the Government’s argument that several decisions have

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recognized that the forfeiture scheme provides the exclusive means to challenge forfeiture

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proceedings, thereby precluding review under the APA? See Reply at 8.

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23 5.

The Government argues that Oakland has failed to cite any decision recognizing that the filing

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a civil complaint constitutes final agency action for purposes of § 704 of the APA. Oakland

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does, however, cite Athlone Indus., Inc. v. Consumer Prod. Safety Comm’n, 707 F.2d 1485,

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1489 n.30 (D.C. Cir. 1983), for the proposition that filing an administrative complaint

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constitutes final agency action.

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For the Government: How does the Government distinguish this case (i.e., what is the

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practical difference between the filing of an administrative complaint and the filing of a civil

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complaint)?

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For Oakland: If filing a civil complaint constitutes final agency action, doesn’t that open

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every civil action that an agency files to a collateral attack under the APA?

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7 6.

With respect to the statute of limitations claim, Defendants and Oakland each rely on one case

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in support of their respective position. The provisions of the Controlled Substances Act that

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form the basis of the 1840 Embarcadero action do not prohibit operation of a marijuana
dispensary, but prohibit the discrete acts that are necessary for the operation of a marijuana

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dispensary. As a result, is this case more akin to Suffield Terrace than $515,060?

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For the Northern District of California

UNITED STATES DISTRICT COURT

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13 7.

Oakland argues that “the Government’s forfeiture complaint was pled as a ‘continuing

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business’ whose operations violate the CSA,” and that the Government failed to allege any

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particular sale in the forfeiture complaint. How does the Government respond?

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Does the Government’s challenge to Oakland’s estoppel claim raise factual issues that go

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beyond the scope of a 12(b)(6) motion?

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IT IS SO ORDERED.

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22 Dated: January 30, 2013
_______________________________
Maria-Elena James
United States Magistrate Judge

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