United States: INSIGHT: Will The DEA's Marijuana Rulemaking Authority Go Up In Smoke In The Second Circuit?

The Second Circuit recently chastised the excessively slow DEA administrative review process, which on average takes nine years. Wilson Elser attorneys say although the court didn't act in this marijuana reclassification case, it retained jurisdiction and may step in if the DEA fails to act promptly.

For decades, marijuana advocates have lobbied the federal government to reschedule marijuana, touting its recognized medical benefits and citing the increasing number of states that have implemented medical marijuana programs.

Legalization efforts may now be taking an unexpected detour through the Second Circuit Court of Appeals, which could potentially enter an order that bypasses the legislature and Drug Enforcement Agency (DEA).

Reviving a challenge to the federal government's classification of marijuana as a controlled substance, the Second Circuit in Washington v. Barr recently chastised the DEA's notoriously slow review process and retained jurisdiction to facilitate the possible rescheduling of marijuana on its own.

Plaintiffs Cite Medical, Health Benefits

Currently, marijuana is a Schedule I controlled substance, meaning it has "no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse." The Washington case could provide an unlikely vehicle for removing marijuana from the federal government's classification as a Schedule I drug.

In Washington, a group of medical marijuana patients and advocates filed suit against the DEA, challenging marijuana's status as a Schedule I drug under the Controlled Substances Act (CSA). The plaintiffs, ranging from a minority business owner in the medical marijuana space, to children with severe medical problems and an Iraqi war veteran with PTSD, claim that medical marijuana provides life-saving relief where traditional medication falls short.

They argue that marijuana's prohibitive Schedule I status poses serious health risks and unfair economic disadvantages. Plaintiffs allege that developments in medical research and government practice require the federal government to reclassify marijuana.

In 2018, the Southern District of New York dismissed the action, finding the plaintiffs failed to exhaust their administrative remedies before seeking relief in federal court. The exhaustion of administrative remedies doctrine states that federal courts should refrain from adjudicating a controversy if the party bringing suit might obtain adequate relief through a proceeding before an administrative agency. The Southern District held that the plaintiffs should have pursued the declassification of marijuana through the DEA first.

Second Circuit Agrees, but Retains Jurisdiction

On appeal, the Second Circuit largely agreed with the trial court's holding, but it went out of its way to retain jurisdiction over the action and keep the case active.

Dissatisfied with the DEA's slow-moving administrative review process—which on average takes nine years—the Second Circuit stated "such long delays cast doubt on the appropriateness of requiring exhaustion." Indeed, to facilitate swifter action by the DEA, the Second Circuit retained jurisdiction "exclusively for the purpose of inducing the agency to act promptly."

Accordingly, the Second Circuit is holding the case in abeyance and has given the plaintiffs six months to file a petition seeking DEA review of their challenge to marijuana's Schedule I status. If the plaintiffs seek agency review, and the agency fails to act with alacrity, the Second Circuit left the door open for the plaintiffs to return and the court will take whatever action might become appropriate.

Although the court did not define a timeline for "prompt" action, the Second Circuit's stern warning should result in the agency moving expeditiously.

Moving Forward

The CSA authorizes the DEA—by delegation from the U.S. attorney general—to move drugs, including marijuana, to a lower schedule, or to de-schedule drugs entirely. When the Washington plaintiffs formally petition the DEA to reschedule marijuana, the DEA will be expected to move swiftly through the burdensome process, as required by the Second Circuit.

Once the Washington plaintiffs file their petition, the DEA will begin collecting necessary data to aid in its determination of whether to reschedule marijuana. Then, in accordance with 21 U.S.C. § 811(b), the attorney general, through the DEA, will request a medical and scientific evaluation and scheduling recommendation from the Department of Health and Human Services. The HHS will then evaluate the issues and make a written recommendation on whether to reschedule marijuana to other schedules (II through V), remove marijuana from the list of controlled substances completely, or keep marijuana in Schedule I.

The HHS must consider eight criteria in 21 U.S.C. § 811(c) in reaching its recommendation. The criteria are:

  1. actual or relative potential for abuse;
  2. scientific evidence of its pharmacological effect;
  3. current scientific knowledge;
  4. history and current pattern of abuse;
  5. scope, duration, and significance of abuse;
  6. risk, of any, to public health;
  7. immediate precursor; and
  8. its psychic or physiological dependence liability.

If the HHS determines that marijuana should either be rescheduled or de-scheduled, and the attorney general finds that this change is warranted based on substantial evidence, the attorney general will initiate the rulemaking process.

Since this is a long and burdensome process, we may see the Second Circuit exercise its jurisdictional reach and issue a final ruling on the case or remand it back to the trial court for additional fact-finding.

Regardless of the outcome, this important court decision continues to push the federal conversation on marijuana reclassification forward.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Originally Publish by Bloomberg Law

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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