Canna Provisions, Inc. v. Bondi

138 F.4th 602

• Court: Court of Appeals for the First Circuit
• Decided: May 27, 2025
• Docket: 24-1628
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1628

CANNA PROVISIONS, INC.; GYASI SELLERS; WISEACRE FARM, INC.; VERANO HOLDINGS CORP.,

Plaintiffs, Appellants,

v.

PAMELA J. BONDI, Attorney General*

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Barron, Chief Judge, Montecalvo and Rikelman, Circuit Judges.

David Boies, with whom Jonathan D. Schiller, Matthew L. Schwartz, David P.G. Barillari, Joshua I. Schiller, and Boies Schiller Flexner LLP were on brief, for appellants. Daniel Aguilar, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice, Mark B. Stern, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, and Sarah Carroll, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, were on brief, for appellee.

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Pamela J. Bondi is automatically substituted for former Attorney General Merrick B. Garland as Defendant-Appellee. May 27, 2025 BARRON, Chief Judge. The appellants are four businesses

that allege that they cultivate, manufacture, possess, and/or

distribute marijuana wholly within Massachusetts in full

compliance with its laws and regulations. In 2023, they sued the

Attorney General of the United States. They claimed that the

Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., "as

applied to [their] intrastate cultivation, manufacture,

possession, and distribution of marijuana pursuant to state law,"

exceeded Congress's powers under Article I of the United States

Constitution and violated the Due Process Clause of the Fifth

Amendment to the Constitution. They sought a declaratory judgment

to that effect. They also sought an injunction prohibiting the

enforcement of the CSA as to them, "in a manner that interferes

with the intrastate cultivation, manufacture, possession, and

distribution of marijuana, pursuant to state law." The District

Court dismissed the appellants' claims for failing to state a claim

on which relief could be granted. We affirm.

I.

A.

Congress enacted the CSA in 1970, as part of the

Comprehensive Drug Abuse Prevention and Control Act. Gonzales v.

Raich, 545 U.S. 1, 10-12 (2005). "The main objectives of the CSA

were to conquer drug abuse and to control the legitimate and

illegitimate traffic in controlled substances." Id. at 12. To do

- 3 - so, "Congress devised a closed regulatory system making it unlawful

to manufacture, distribute, dispense, or possess any controlled

substance except in a manner authorized by the CSA." Id. at 13

(citing 21 U.S.C. §§ 841(a)(1), 844(a)).

The CSA grouped all controlled substances into five

"schedules" based on their "accepted medical uses, the potential

for abuse, and their psychological and physical effects on the

body." Id. Each schedule imposed "a distinct set of controls

regarding the manufacture, distribution, and use of the substances

listed therein." Id. at 14.

The CSA classified marijuana as a Schedule I drug, which

made "the manufacture, distribution, or possession of

marijuana . . . a criminal offense," except as authorized by the

CSA. Id. "Despite considerable efforts to reschedule marijuana,

it remains a Schedule I drug."1 Id. at 15.

In Raich, the Supreme Court of the United States ruled

on a claim that the CSA exceeded Congress's Article I powers under

the Commerce Clause and the Necessary and Proper Clause insofar as

that statute applied to possession and cultivation of marijuana

for personal medical use in compliance with state law. Id. at

7-8. There, the plaintiffs were two individuals who wished to

In May 2024, the Attorney General issued a notice of 1

proposed rulemaking that contemplates transferring marijuana from Schedule I to Schedule III. 89 Fed. Reg. 44597 (May 21, 2024). The administrative process remains pending.

- 4 - grow and possess marijuana for personal medical use based on a

physician's recommendation in accord with a California law that,

notwithstanding the CSA, authorized such activity as a matter of

state law. Id.

Raich rejected the constitutional challenge on the

ground that Congress had a rational basis for concluding that the

failure to regulate "the intrastate cultivation and possession of

marijuana for medical purposes based on the recommendation of a

physician would substantially affect the larger interstate

marijuana market." Id. at 21-22. The Court explained that the

CSA's criminalization of the cultivation and possession of

marijuana for personal medical use in compliance with state law

was "an essential part of a larger regulatory scheme" for

regulating marijuana that the CSA establishes. Id. at 30.

Beginning roughly a decade later, however, Congress each

year has attached a rider to its annual appropriations bill. The

rider concerns the authority of the U.S. Department of Justice

with respect to state-regulated medical marijuana. It provides:

None of the funds made available under this Act to the Department of Justice may be used, with respect to any of [the listed states and territories] to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Consolidated Appropriations Act, 2024, Pub. L. No. 118-42, § 531,

138 Stat. 25, 174 (2024); see also United States v. Sirois, 119

- 5 - F.4th 143, 145 (1st Cir. 2024) (noting the same). This

rider -- often referred to as the "Rohrabacher-Farr

Amendment" -- "places a practical limit on federal prosecutors'

ability to enforce the CSA with respect to certain conduct

involving medical marijuana." United States v. Bilodeau, 24 F.4th

705, 709 (1st Cir. 2022). In addition, in 2010, Congress permitted

the District of Columbia to enact a medical marijuana program.

B.

In advancing their as-applied challenge to the CSA, the

appellants refer in their complaint to the post-Raich federal

legislative developments just mentioned. They also allege that,

as of the time of the complaint's filing, twenty-three states had

created regulated intrastate markets for non-medical, adult-use

marijuana. Their complaint asserts that, in consequence of these

developments, Raich's rationale for upholding the CSA against the

challenge in that case provides no basis for upholding it against

their challenge to the CSA based on Congress having exceeded its

Article I powers. Their complaint separately alleges that the CSA

is unconstitutional as applied to their activities under the Due

Process Clause of the Fifth Amendment.

The government moved to dismiss the complaint for, among

other things, "failure to state a claim upon which relief can be

granted." Fed. R. Civ. P. 12(b)(6). As to the claim based on

Article I, the government contended that "Raich's holding that the

- 6 - CSA is within Congress'[s] power under the Commerce Clause and

Necessary and Proper Clause, even as applied to intrastate

marijuana activity compliant with state law, forecloses" the

challenge. As to the claim based on substantive due process, the

government argued that there is no fundamental right "to cultivate,

manufacture, possess, and distribute marijuana, subject only to

state health, safety, and public welfare regulations," and that

"the CSA easily satisfies rational basis scrutiny."

The District Court granted the government's motion. The

District Court reasoned that, because Raich held that "an

aggregation of limited, non-commercial marijuana activity"

provided a "rational basis" for Congress's conclusion that such

activity would "substantially affect interstate commerce," it was

bound by that precedent to "find the same to be true of

[p]laintiffs' larger-scale, commercial activities." It also

reasoned that "[t]here [was] simply no precedent for concluding

that [p]laintiffs enjoy a fundamental right to cultivate, process,

and distribute marijuana," and "[i]n the absence of a fundamental

right to engage in the cultivation, processing, and distribution

of marijuana, [p]laintiffs cannot prevail on their substantive due

process claim."

This appeal timely followed.

- 7 - II.

The appellants bear the burden of demonstrating that the

CSA, as applied to their conduct, exceeds Congress's power under

the Commerce Clause and the Necessary and Proper Clause as well as

that the CSA violates the Due Process Clause of the Fifth

Amendment. See Dep't of State v. Muñoz, 602 U.S. 899, 903 (2024).

"We review de novo an order dismissing a complaint for failure to

state a claim . . . ." Lee v. Conagra Brands, Inc., 958 F.3d 70,

74 (1st Cir. 2020).

III.

The Commerce Clause of the United States Constitution

provides that "Congress shall have [the] [p]ower . . . [t]o

regulate Commerce . . . among the several States." U.S. Const.

art. I, § 8, cl. 3. The appellants do not dispute that they are

engaged in commercial activity through their cultivation,

manufacture, possession, and/or distribution of marijuana. They

nonetheless contend that this commercial activity is purely

"local" or "intrastate" in the sense that it takes place entirely

within Massachusetts. They then go on to contend that Congress's

power under the Commerce Clause and the Necessary and Proper Clause

does not extend to this activity, notwithstanding that it is

commercial in nature.

In pressing this contention, the appellants assert that

"myriad changes, both in federal legislation and the markets for

- 8 - marijuana, mean that the new marijuana regime today cannot satisfy

the standard set out in Raich." We begin with their contention

insofar as it rests on post-Raich changes in "federal legislation."

We then consider their contention insofar as it rests on post-Raich

changes in "the markets for marijuana."

In asserting that changes in federal legislation render

Raich inapposite, the appellants focus chiefly on the

Rohrabacher-Farr Amendments. They contend that those amendments

show that "Congress has abandoned its goal of controlling all

marijuana in interstate commerce" and thus that "[t]he current

regime . . . lacks the comprehensiveness that was a predicate for

Raich's upholding of the CSA." They further contend that those

amendments show that "not even Congress believes that prohibiting

state-regulated marijuana is 'essential to the effective control

of the interstate incidents' of marijuana." (Quoting Raich, 545

U.S. at 12 n.20). As a result, they contend that Raich no longer

"directly controls" because these post-Raich federal legislative

developments reveal that regulating their activity -- given that

it occurs wholly intrastate, subject to state regulatory

regimes -- is not "an essential part of the larger regulatory

scheme" for regulating marijuana that the CSA establishes.

(Quoting Raich, 545 U.S. at 27).

- 9 - As an initial matter, we observe that the

Rohrabacher-Farr Amendments are of limited scope. They restrict

the U.S. Department of Justice only from using federal funds "to

prevent any of [the listed states and territories] from

implementing their own laws that authorize the use, distribution,

or cultivation of medical marijuana." Consolidated Appropriations

Act, 2024 § 531 (emphasis added). The appellants are challenging

the CSA, however, insofar as it applies to their cultivation,

manufacture, possession, and distribution of marijuana without

regard to whether that activity is for a medical purpose. And the

appellants do not explain why, under Raich, the regulation of such

activity is not "an essential part of the larger regulatory scheme"

that the CSA establishes, even accounting for the Rohrabacher-Farr

Amendments. Raich, 545 U.S. at 27. After all, notwithstanding

those appropriation riders, the CSA remains fully intact as to the

regulation of the commercial activity involving marijuana for

non-medical purposes, which is the activity in which the

appellants, by their own account, are engaged.

It may be that the appellants mean to suggest that Raich

may not be understood to treat any legislative scheme regulating

marijuana as "comprehensive" for purposes of triggering its

"essential part" rationale unless that scheme regulates all

marijuana. But even if we were to accept that questionable

- 10 - premise, it would not help the appellants, given the commercial

nature of their activity.

The Court did not suggest in Raich that Congress may

rely on its Article I powers under the Commerce Clause and the

Necessary and Proper Clause to regulate any activity involving

marijuana only as part of its regulation of all activity involving

marijuana. Instead, the Court there relied on the

comprehensiveness of the CSA's regulatory regime and the

"essential part" rationale only in the context of a challenge to

the CSA as applied to the cultivation and possession of marijuana

for personal medical use -- and thus as applied to what was in and

of itself a non-commercial activity. See id. at 18-22. The

appellants' challenge, by contrast, concerns the CSA's application

to activity that the appellants do not dispute is commercial in

nature. Yet, they identify nothing in Raich that indicates that

even when an activity that the CSA covers is commercial in nature,

its regulation must be an "essential part" of the CSA for Congress

to have the Article I power to cover that activity via the CSA.

Nor do we see anything in Raich that so indicates.2

2 The appellants' reliance on Hobby Distillers Association v. Alcohol & Tobacco Tax & Trade Bureau, 740 F. Supp. 3d 509 (N.D. Tex. 2024), is unavailing for the same reason. While that case understood Raich to require "an established, comprehensive regulatory regime," id. at 532, it did so in considering an as-applied challenge to the regulation of non-commercial activity -- there, "home-distilling beverage alcohol for personal consumption," id. at 516-17.

- 11 - The other "change[] . . . in federal legislation" to

which the appellants point in challenging the ruling below based

on the "essential part" test is Congress's choice in 2010 to permit

the District of Columbia to enact laws legalizing medical marijuana

within the District. That federal legislative change, however,

also solely concerned medical marijuana. The appellants' argument

regarding this federal legislative development thus would appear

to suffer from precisely the same defects as their contentions

pertaining to the Rohrabacher-Farr Amendments. And, insofar as

the appellants mean to suggest that this federal legislative change

demonstrates some problem with the application of the CSA to their

conduct that the Rohrabacher-Farr Amendments do not, they do not

explain what that problem might be. Any such contention is

therefore waived for lack of development. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

The appellants also contend that post-Raich changes in

"the markets for marijuana" mean that Congress may no longer

regulate their marijuana activity under the Commerce Clause and

Necessary and Proper Clause. Here, the appellants rely on United

States v. Wrightwood Dairy Co., 315 U.S. 110 (1942), for the

proposition that Congress may regulate intrastate

- 12 - activities -- even those that are commercial in nature -- only if

they "in a substantial way interfere with or obstruct the exercise

of the granted power" to regulate interstate commerce, id. at 119.

The appellants contend that "there is no longer any

reason to assume that state-regulated marijuana activities 'in a

substantial way interfere with or obstruct the exercise of the

granted power' to regulate interstate commerce in marijuana,"

(quoting United States v. Lopez, 514 U.S. 549, 556 (1995)), because

"the decades since Raich have shown Congress's former concerns

about swelling interstate traffic and enforcement difficulties can

no longer be supported." In that regard, the appellants emphasize

the allegations in their complaint that "states' medical and

adult-use marijuana programs have drastically reduced illicit

interstate and international commerce in marijuana" and that

"state-regulated marijuana products are distinguishable (from each

other and from illicit interstate marijuana) based on the labelling

and tracking requirements that states impose."

Of course, for purposes of assessing Congress's power

under the Commerce Clause and the Necessary and Proper Clause to

regulate an activity, the question that we must ask is not "whether

[appellants'] activities, taken in the aggregate, substantially

affect interstate commerce in fact." Raich, 545 U.S. at 22. The

question is "whether a 'rational basis' exists for so concluding."

Id.

- 13 - In addition, Raich held that Congress had a rational

basis for concluding that failing to regulate "the intrastate

cultivation and possession of marijuana for medical purposes based

on the recommendation of a physician would substantially affect

the larger interstate marijuana market." Id. at 21. And, in so

ruling, the Court explained that the activity at issue there was

not beyond Congress's reach under Article I because

[o]ne need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana . . . locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance.

Id. at 28. Raich also observed that "[t]he notion that [state]

law has surgically excised a discrete activity that is hermetically

sealed off from the larger interstate marijuana market is a dubious

proposition, and, more importantly, one that Congress could have

rationally rejected." Id. at 30; see also United States v.

Nascimento, 491 F.3d 25, 42 (1st Cir. 2007) ("Raich teaches that

when Congress is addressing a problem that is legitimately within

its purview, an inquiring court should . . . . respect the level

of generality at which Congress chose to act.").

Against that backdrop, we find it significant that the

"exemption" that is being sought via the asserted limits on

Article I here would allow for more than the possession and

- 14 - cultivation for personal medical use of marijuana -- as was the

case in Raich itself. The "exemption" would allow for the

commercial cultivation, manufacture, possession, and distribution

of marijuana for both medical and non-medical purposes. The

appellants, in other words, are asking for a "nationwide exemption"

that is much broader than the one that Raich held Article I did

not require, both in the kinds of conduct and the "quantity of

marijuana" that would be exempted. 545 U.S. at 28.

True, the appellants allege that, as of the time of their

complaint, the availability of regulated markets for marijuana in

individual states has decreased interstate commercial activity

involving marijuana. They allege, too, that state-regulated

marijuana is distinguishable from illicit interstate marijuana.

But, as we have emphasized, the relevant question is whether

Congress could rationally conclude that an intrastate activity

would "substantially affect interstate commerce" if not regulated.

Id. at 22. And, as we have noted, in rejecting the "exemption"

sought in that case, the Court in Raich relied on the conclusion

that Congress could rationally conclude that a "vast quantity of

marijuana" that a state permits to be lawfully used within its

borders, id. at 28, subject to its regulation, would not remain

"hermetically sealed off from the larger interstate marijuana

market," id. at 30.

- 15 - We thus do not see how we could conclude that Congress

has no rational basis for similarly concluding as to the much

larger exemption sought here. There is a difference between the

factual predicate that may support a legislative choice and the

kind of factual predicate that could compel a court to impose a

constitutional limit on that choice. We thus conclude that the

appellants have failed to show that there is no rational basis for

concluding that their activity substantially affects interstate

commerce.

To the extent that the appellants may be understood to

be contending that Congress had to have made specific findings

that the intrastate cultivation, manufacture, possession, and/or

distribution of marijuana in compliance with a given state's laws

allowing for such intrastate activity would substantially affect

the larger interstate market, we are also unpersuaded. Congress

is not required to make "detailed findings proving that each

activity regulated within a comprehensive statute is essential to

the statutory scheme." Id. at 21 n.32. For that reason, the Court

rejected the analogous argument made by the appellants in Raich

that Congress had not made "a specific finding that the intrastate

cultivation and possession of marijuana for medical purposes based

on the recommendation of a physician would substantially affect

the larger interstate marijuana market." Id. at 21.

- 16 - Relatedly, the appellants fault the District Court for

"refus[ing] to permit [the appellants] to prove that the CSA's

findings today are unsupported." But even they concede that "Raich

permits courts to dispense with fact finding when the connection

to Congress's interstate goals is 'visible to the naked eye.'"

(Quoting Raich, 545 U.S. at 28-29). And, for reasons we have

explained, that connection is no less "visible" here than it was

in Raich.

C.

For the foregoing reasons, we conclude that the

appellants have not plausibly alleged that the CSA's prohibition

on the "intrastate cultivation, manufacture, possession, and

distribution of marijuana pursuant to state law," as applied to

them, exceeds Congress's authority under the Commerce Clause and

the Necessary and Proper Clause.

IV.

The appellants separately challenge the District Court's

dismissal of their claim that the CSA is unconstitutional under

the Fifth Amendment's Due Process Clause as applied to their

intrastate commercial activity involving marijuana because "the

CSA's prohibition on state-regulated marijuana violates

Plaintiffs-Appellants' rights to cultivate and transact in

marijuana" for both medical and recreational purposes. In that

regard, the appellants contend that the "right[] to cultivate and

- 17 - transact in marijuana" for such purposes is "deeply rooted in this

nation's history and its legal traditions." They further contend

that the right is "further reinforced" by "current legal trends,

which include the vast majority of the states . . . permitting the

cultivation and distribution of marijuana." We are not persuaded.

The Due Process Clause of the Fifth Amendment "provides

heightened protection against government interference with certain

fundamental rights and liberty interests." Washington v.

Glucksberg, 521 U.S. 702, 720 (1997). To establish such a

fundamental right, a plaintiff must show that the asserted right

is "objectively[] 'deeply rooted in this Nation's history and

tradition,'" id. at 720-21 (quoting Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977)), and "'implicit in the concept

of ordered liberty,' such that 'neither liberty nor justice would

exist if they were sacrificed,'" id. at 721 (quoting Palko v.

Connecticut, 302 U.S. 319, 325, 326 (1937)). In addition, the

plaintiff must provide a "careful description of the asserted

fundamental liberty interest." Muñoz, 602 U.S. at 910 (quoting

Glucksberg, 521 U.S. at 721). If the plaintiff succeeds in

establishing the existence of a fundamental right, the government

"can act only by narrowly tailored means that serve a compelling

state interest." Id. "As a general matter," the Supreme Court

"has always been reluctant to expand the concept of substantive

- 18 - due process because guideposts for responsible decisionmaking in

this unchartered area are scarce and open-ended." Collins v. City

of Harker Heights, 503 U.S. 115, 125 (1992).

Every circuit to have addressed similar substantive due

process claims related to the use, cultivation, or sale of

marijuana has rejected them. See United States v. Kiffer, 477

F.2d 349, 352 (2d Cir. 1973) ("[T]here is no colorable claim of a

fundamental constitutional right to sell marihuana."); United

States v. White Plume, 447 F.3d 1067, 1075 (8th Cir. 2006) (no

fundamental right to "hemp farming"); United States v. Fry, 787

F.2d 903, 905 (4th Cir. 1986) (no fundamental right to "produce or

distribute marijuana commercially"); Raich v. Gonzales, 500 F.3d

850, 864-66 (9th Cir. 2007) (no fundamental right to use medical

marijuana); Borges v. Cnty. of Mendocino, No. 22-15673, 2023 WL

2363692, at *1 (9th Cir. Mar. 6, 2023) (no fundamental right to

cultivate marijuana); see also United States v. Cannon, 36 F.4th

496, 502 (3d Cir. 2022) (per curiam) (noting, on plain error

review, that "it is certainly not 'clear under current law' that

there is any fundamental right to use medical marijuana" (quoting

United States v. Olano, 507 U.S. 725, 734 (1993))). We see no

reason to part ways with our sister circuits in addressing

appellants' as-applied challenge.

In arguing that we must, the appellants first point to

historical practices in the original colonies prior to the

- 19 - founding. They argue that "[e]ach of the thirteen original

colonies enacted" laws concerning marijuana -- "then known simply

as 'hemp'" -- some of which "encouraged (or even required)"

colonists to grow marijuana. The appellants also rely on

allegations regarding marijuana use in the United States "[a]round

the [p]assage of the Fourteenth Amendment," which they say show

that "Americans were using marijuana for medicinal and

recreational purposes" at the time and that "marijuana was 'highly

valued'" at the time for these uses. Finally, the appellants

assert that English sources, including the Magna Carta,

"created . . . rights concerning hemp cultivation" and sometimes

even "made the cultivation of hemp compulsory." The sum total of

this historical evidence, the appellants contend, establishes "a

long legal tradition of recognizing the importance of marijuana

commerce" and proves that "the 20th-century movement towards

banning and criminalizing marijuana, which culminated in 1970 with

the CSA, is a historical aberration compared to the practices in

this country in the 17th, 18th, [and] 19th . . . centuries."

The appellants' reasoning would mean that there would be

a fundamental right to grow and sell any product that founding era

laws encouraged residents of that time to grow and sell. We

decline to adopt a line of reasoning that would support such

"sweeping claims of fundamental rights," Abigail All. for Better

Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 707

- 20 - (D.C. Cir. 2007), particularly given that the rights in question

must be those that are "deeply rooted in this Nation's history and

tradition" and "implicit in the concept of ordered liberty,"

Glucksberg, 521 U.S. at 721 (first quoting Moore, 431 U.S. at 503;

and then quoting Palko, 302 U.S. at 325).

There remains to address only the appellants' argument

that "[t]he widespread adoption of state-regulated marijuana

programs further demonstrates the importance of marijuana

commerce." But we know of no authority -- and the appellants

identify none -- that supports the proposition that an activity

not otherwise protected as a fundamental right under the Due

Process Clause may become so protected solely because many states

have in recent times provided legislative protections for that

activity. We thus hold that the appellants have not plausibly

alleged that the CSA's prohibition on "the intrastate cultivation,

manufacture, possession, and distribution of marijuana pursuant to

state law," as applied to their activities, violates the Fifth

Amendment.3

For the first time in their reply brief, the appellants 3

gesture at an argument that the CSA's ban on intrastate marijuana commerce in compliance with state law would fail even rational basis scrutiny. Insofar as they mean to make that argument, we decline to address it. See Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("Our precedent is clear: we do not consider arguments for reversing a decision of a district

- 21 - V.

For the foregoing reasons, the District Court's

dismissal of the plaintiffs-appellants' claims is affirmed.

court when the argument is not raised in a party's opening brief."); see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

- 22 -