NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LANCE CARLSON, No. 17-35917
Plaintiff-Appellant, D.C. No. 6:16-cv-00086-SEH
v.
MEMORANDUM*
CHARTER COMMUNICATIONS, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted November 9, 2018**
Portland, Oregon
Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,*** District Judge.
Lance Carlson appeals the district court’s dismissal of his action and its
order refusing to certify a question to the Montana Supreme Court. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
Because sections 50-46-320(4)(b) and (5) of the Montana Marijuana Act
(MMA) state that the MMA does not prevent employers from prohibiting their
employees from using marijuana or authorize wrongful termination or
discrimination suits against employers, Mont. Code Ann. §§ 50-46-320(4)(b), (5),
the MMA does not preclude a federal contractor from complying with all the
requirements of the Drug-Free Workplace Act (DFWA), 41 U.S.C. § 8102.
Therefore, the MMA is not preempted by the DFWA. See PLIVA, Inc. v. Mensing,
564 U.S. 604, 620 (2011); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,
373 (2000).
Nevertheless, sections 50-46-320(4)(b) and (5) do not violate the Montana
constitution; rather, they survive rational basis review because they are rationally
related to Montana’s legitimate state interest in providing “careful regulation of
access to an otherwise illegal substance for limited use by persons for whom there
is little or no other effective alternative” while “avoid[ing] entanglement with
federal law.” Mont. Cannabis Indus. Ass’n v. State, 368 P.3d 1131, 1143 (Mont.
2016). Although a congressional appropriations rider currently restricts the
Department of Justice from spending funds to prosecute individuals who comply
with state marijuana laws, see United States v. McIntosh, 833 F.3d 1163, 1169,
2
1179 (9th Cir. 2016), this temporary rule does not undercut Montana’s legitimate
state interests.
The district court did not abuse its discretion in denying Carlson’s request to
certify the question whether sections 50-46-320(4)(b) and (5) are constitutional to
the Montana Supreme Court, because it is not an unclear question of state law
appropriate for certification. See Centurion Properties III, LLC v. Chi. Title Ins.
Co., 793 F.3d 1087, 1089 (9th Cir. 2015).
AFFIRMED.
3