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“Get off the Pot on Pot!” – A Panel of (Two of) Three Judges of the 2nd Circuit Court of Appeals Suggests the Administration Needs to Act on Marijuana Rescheduling

Patients, Veterans, and African‐American businessman Challenge the DOJ and DEA on Marijuana Scheduling

“This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government’s classification of
marijuana as a Schedule I drug under the Controlled Substances Act (CSA) … The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings. Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.”

The case is available at http://www.ca2.uscourts.gov/:

Court of Appeals Docket #: 18-859 Docketed: 03/29/2018
Nature of Suit: 2440 CIVIL RIGHTS-Other
Washington v. Barr
Appeal From: SDNY (NEW YORK CITY)
Fee Status: Paid
Case Type Information:
     1) Civil
     2) United States
     3) –
Originating Court Information:
     District: 0208-1 : 17-cv-5625
     Trial Judge: Alvin Hellerstein, U.S. District Judge

As the Court indicates, the plaintiffs all have compelling reasons to have the Government act. The plaintiffs are:

  1. An African‐American businessman working in the medical marijuana space. He would like to expand his business into whole‐plant cannabis products and take advantage of the federal Minority Business Enterprise Program, but, he alleges, he is impeded from so doing by the drug’s scheduling.
  2. The Cannabis Cultural Association, Inc. (CCA) is a not‐for‐profit organization dedicated to assisting people of color develop a presence in the cannabis industry. CCA is particularly focused on the way past convictions for possession, cultivation, distribution, and use of marijuana have disproportionately affected people of color and prevented minorities from participating in the new state‐legal marijuana industry.
  3. Two children with dreadful medical problems. [One] suffers from chronic and intractable seizures; [the other] from Leigh’s disease. They allege that they exhausted traditional treatment options before finding success medicating with cannabis. They claim that marijuana has saved their lives. Because of its Schedule I classification, however, they cannot bring their life‐saving medicine with them when they travel onto federal lands or into states where marijuana is illegal. For [one], these travel limitations also mean that she cannot take full advantage of the veteran’s benefits to which she is entitled through her father. In addition, both live in constant fear that their parents might be subject to arrest and prosecution for their involvement in their children’s medical treatment.
  4. One is a veteran of the war in Iraq and suffers from post‐traumatic stress disorder. After his honorable discharge, he became suicidal and was adjudged 70% disabled. He alleges that he pursued conventional therapies unsuccessfully. In despair, he turned to medical marijuana. This, he claims, has allowed him to manage his symptoms. He further asserts, like [another plaintiff], that marijuana’s Schedule I classification restricts his ability to travel and to take full advantage of his veteran’s benefits.
  5. Defendants are the United States, the Attorney General, the Department of Justice, the Acting Administrator of the DEA, and the DEA itself. They are
    responsible for implementing the CSA and, more particularly, for updating the classification of controlled substances.
The CSA Scheduling Process

The Court describes the process used to schedule, reschedule, or deschedule drugs in footnote 3 on page 8 of its May 30th order:

The CSA places in the Attorney General the power to schedule, reschedule, or deschedule drugs. See 21 U.S.C. § 811(a). The Attorney General has promulgated rules delegating this power to the head of the DEA. See 28 C.F.R. § 0.100(b). The CSA further requires that, before scheduling, rescheduling, or descheduling a drug, the Attorney General “shall . . . request from the Secretary [of Health and Human Services] a scientific and medical evaluation[ of the drug], and [the Secretary’s] recommendations, as to whether such drug or other substance should be so controlled or removed,” which “shall be binding on the Attorney General as to such scientific and medical matters.” 21 U.S.C. § 811(b). The process for reviewing a drug’s scheduling can be initiated by the Attorney General, the Secretary of Health and Human Services, or “on the petition of any interested party.” Id. § 811(a).

And then at page 13:

When Congress enacted the CSA, it put, by legislative fiat, certain drugs directly into schedules. See Controlled Substances Act, Pub. L. No. 91‐513, § 202, 84 Stat. 1236, 1247‐52 (1970) (codified at 21 U.S.C. § 812); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005). But the statute contemplated that these initial lists would be regularly revised and updated by the Attorney General, in consultation with the Secretary of Health and Human Services, and that this would be done according to a specific procedure and set of standards.

It is Health & Human Services, not the DOJ or the DEA, that will decide whether to reschedule marijuana

The Court considered the plaintiffs’ arguments that the former Attorney General and Administrator of the DEA were biased against marijuana, and thus would not act appropriately. But the Court concludes that any bias by the AG or DEA is not relevant, because “on the medical and scientific claims central to Plaintiffs’ argument, it is the opinion of the Secretary of Health and Human Services that matters, not the judgment of the Attorney General or the head of the DEA.”

How long does it take to decide petitions to reschedule drugs? Nine years.

“Plaintiffs argue that the administrative process will prolong their ordeal intolerably. And their argument is not without force. Plaintiffs document that the average delay in deciding petitions to reclassify drugs under the CSA is approximately nine years.”

Rescheduling marijuana requires action by the Administration

At page 16:

A sensible response to our evolving understanding about the effects of marijuana might require creating new policies just as much as changing old ones. This kind of constructive governmental work, mixing adjudication and program‐design, creating policy through the balancing of competing legitimate interests, is not generally best accomplished by federal courts on their own; it is, however, the stock‐in‐trade of administration. See, e.g., James M. Landis, The Administrative Process (1938). Assuming, of course, that one can get the administrative agency to act.

It is this last sentence – assuming, of course, that one can get the administrative agency to act – that is the key aspect of this decision, and how the Court left it.

Conclusion: The Court warns the Administration to get off the pot on pot, or it will step in

At pages 25-26:

Unless the Plaintiffs seek agency review and so inform us within six months, we will affirm the District Court’s judgment dismissing this case. (And if only some Plaintiffs seek agency review, we will dismiss the complaint as to those who do not.) But if Plaintiffs do seek agency review, and the agency fails to act with alacrity, Plaintiffs may return directly to us, under our retained jurisdiction. To be clear, we repeat that this case remains in our purview only to the extent that the agency does not respond to Plaintiffs with adequate, if deliberate, speed. In other words, we retain jurisdiction exclusively for the purpose of inducing the agency to act promptly.