United States: If The DEA Does Not Quickly Reexamine Marijuana's Classification Under The Controlled Substance Act, The Second Circuit Might

"Plaintiffs claim that marijuana has extended their lives, cured seizures and made pain manageable. If true, these are no small things." So wrote Judge Calabresi on behalf of the United States Court of Appeals for the Second Circuit (Second Circuit) in Washington, et al. v. Barr, et al.

In Washington, a coalition of plaintiffs launched a broad attack on marijuana's status as a Schedule I drug under the Controlled Substances Act (CSA). The plaintiffs include the parents of infants Alexis Bortell and Jagger Cotte. According to the plaintiffs' allegations, Alexis Bortell suffers from chronic, intractable seizures, and Jagger Cotte suffers from Leigh's disease, a progressive neurometabolic disorder characterized by necrotizing (dead or dying tissue) lesions on the brain. After exhausting traditional treatment options, the children found relief with medical marijuana.

The plaintiffs also include Jose Belen, an Iraq war veteran who suffers from post-traumatic stress disorder. He pursued conventional therapies without success and then tried medical marijuana, which allows him to manage his symptoms, including suicidal ideations. However, because marijuana remains a Schedule I drug under the CSA, Mr. Belen cannot take full advantage of his veteran's benefits, and the children cannot take their medicine onto federal land nor into states where marijuana is illegal.

The plaintiffs argued that new facts concerning the acceptance of medical marijuana treatment and the federal government's involvement in medical marijuana research require a reexamination of marijuana's status under the CSA. The defendants, including United States Attorney General Bill Barr and Acting Administrator for the Drug Enforcement Administration (DEA), Uttam Dhillon, moved to dismiss the plaintiffs' complaint. The trial court granted the defendants' motion and dismissed the plaintiffs' complaint with prejudice, finding that the plaintiffs had failed to exhaust their administrative remedies before they sought relief from the court.

The exhaustion doctrine holds that federal courts should not resolve a dispute if the plaintiff could potentially get relief from a proceeding before an administrative agency. Based on that doctrine, the trial court concluded that the plaintiffs, before they had a right to go to court, had to ask the DEA to reexamine marijuana's status under the CSA. The plaintiffs appealed the trial court's decision.

On appeal, the Second Circuit largely agreed with the trial court. Although the CSA does not expressly require the exhaustion of administrative remedies, the Second Circuit concluded that the plaintiffs had to exhaust administrative remedies because such a requirement is consistent with congressional intent. According to the Second Circuit, "[t]he text of the CSA shows that Congress sought to favor administrative decision making." For example, 21 U.S.C. § 811(a) directs the Attorney General to categorize drugs under the Act by rules "made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed" by the Administrative Procedures Act, 5 U.S.C. § 551 et seq. The Second Circuit also looked to 21 U.S.C. § 811(b), which establishes the Attorney General's duty to defer to the Secretary of Health and Human Services on certain medical and scientific matters. After considering those provisions of the CSA, the Second Circuit concluded that it would undermine the text and structure of the CSA if it did not require exhaustion "in the ordinary case."

The exhaustion requirement, however, is not absolute. For example, courts can waive the requirement if a plaintiff shows that it would be futile for her to attempt to exhaust her administrative remedies. In this particular case, the plaintiffs did not allege facts that show it would have been futile for them to exhaust their administrative remedies. They did not allege, for example, facts sufficient to show that the relevant decision maker—the Secretary of Health and Human Services—is biased against them, and they did not plausibly allege that the administrative process would be incapable of granting adequate relief; indeed, the DEA has the power to reschedule or even deschedule marijuana, so the DEA could give plaintiffs the exact relief they seek.

Importantly, courts can waive the exhaustion requirement when pursuing agency review would subject plaintiffs to "undue prejudice." For example, if a plaintiff alleges facts that demonstrate "an unreasonable or indefinite timeframe for administrative action," the court may allow the plaintiff to proceed in court before completely exhausting administrative remedies. In this case, the Second Circuit found that "[d]espite the apparently dire situation of some of the Plaintiffs," they did not yet meet the undue prejudice requirement, primarily because they have not been prevented from obtaining the medical marijuana that they require. The Second Circuit therefore concluded that under the present set of facts, the plaintiffs must exhaust their administrative remedies.

In an unusual move, however, the Second Circuit did not completely shut the doors of the court on the plaintiffs. In response to information that shows the average delay in deciding petitions to reclassify drugs under the CSA is approximately nine years, the Second Circuit found that "[s]uch long delays cast doubt on the appropriateness of requiring exhaustion." The Second Circuit therefore retained jurisdiction of the case based on its concern that the DEA might not act quickly enough to provide the plaintiffs with relief.

In six months, the Second Circuit will affirm the District Court's judgment dismissing the case, unless the plaintiffs seek DEA review within that time and inform the Second Circuit that they have done so. On the other hand, if the plaintiffs seek agency review within six months, and "the agency fails to act with alacrity," the Plaintiffs may return directly to the Second Circuit. "[U]nder the unusual health-related circumstances of this case, what has counted as appropriate speed in the past may not count as appropriate speed here." The implication is clear: the Second Circuit retained jurisdiction to make the DEA act quickly.

If The DEA Does Not Quickly Reexamine Marijuana's Classification Under The Controlled Substance Act, The Second Circuit Might

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions