Scientists challenge pot’s status as a Schedule I drug

Today, the Schedule of Controlled Substances, established by the Controlled Substances Act of 1970 (the "CSA") still includes marijuana in Schedule I -- the most restrictive class. According to the U.S. Department of Justice's website, Schedule I drugs are those that "have 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." According to the Schedule, marijuana still ranks higher than methamphetamine.

With the evolution of the United States' relationship with cannabis over recent decades, and particularly since the legalization of recreational marijuana, challenges to de-schedule or re-schedule marijuana have been increasingly common. Numerous parties have petitioned the U.S. Drug Enforcement Administration to reschedule marijuana per its rescheduling protocols since the 1970s, and the DEA has done almost nothing -- it has routinely refused to accept or denied each and every petition minus one filed by the pharmaceutical manufacturer of Marinol (a synthetic cannabis drug). Aside from that extremely small victory in getting Marinol descheduled from Schedule II to Schedule III, no progress has been made.

Naturally, people realized petitioning the DEA was going to get them nowhere. So, they moved their petitions to the judicial system, citing that the DEA's administrative process was too dysfunctional and took too long. However, despite the sheer volume of attempts, these have not only failed, they haven't even been really heard on their merits. Why?

The Exhaustion of Remedies Doctrine

The exhaustion of remedies doctrine requires that administrative or other non-judicial remedies be pursued and "exhausted" prior to entering the court system. In principle and in most cases, this doctrine makes sense -- it allows agencies in specialized areas to flush out any issues, it ensures administrative processes are followed and uninterrupted, and it conserves judicial resources. And, it doesn't completely preclude judicial review of administrative actions, it just requires that the agency decision be final before a court may review it.

Turning back to the litany of cases that have been filed against the DEA in various district courts around the country, much of the motion practice has been centered on whether a petitioner's case can basically continue. As my colleague, Hilary Bricken, has written before, the courts have "routinely punted" them in favor of letting Congress deal with the issue.

Sisley v. DEA

In Sisley, et al. v. U.S. Drug Enforcement Administration, et al., 20-71433, a group of scientists and veterans sued the DEA back in May, arguing that the DEA's legal basis for keeping marijuana classified as Schedule I drug was unconstitutional. They asked the 9th U.S. Circuit Court of Appeals to review the DEA's decisions to reject rescheduling petitions previously filed in 1992, 2016 and 2020. Sisley, et al. raised questions about the DEA's reliance on scheduling standards that were not only arbitrary, but allegedly misinterpret federal law.

Per the usual course, the DEA filed a motion to dismiss for failure to exhaust administrative remedies. In sum, it argued: "The petition should be dismissed because none of the petitioners have exhausted their administrative remedies. Any of the petitioners may ask DEA to consider rescheduling marijuana under 21 U.S.C. § 811(a) ... In doing so, petitioners may raise the arguments they have raised to this Court, and DEA would be able to consider those arguments in the first instance. Petitioners may also submit any evidence regarding marijuana's efficacy, safety, and use in medical treatment, which DEA and HHS can evaluate. Id. § 811(b). But petitioners 'have made no attempt to exhaust that process' and 'until they do so, they are not entitled to the relief they seek in this lawsuit.' Agua Caliente Tribe of Cupeño Indians of Pala Reservation v. Sweeney, 932 F.3d 1207, 1216, 1219 (9th Cir. 2019)."

In its lengthy opposition, Sisley delved into why exhaustion of remedies was not actually required: "In Darby v. Cisneros, 509 U.S. 137, 146-47 (1993), the Court spoke clearly: In APA cases, courts cannot require exhaustion of available administrative remedies unless the relevant statute or agency rules 'clearly mandat[e]' it. This case arises under the APA, and neither the Controlled Substances Act nor agency rules require further exhaustion. Instead, § 877 of the Act makes judicial review broadly available to 'any person aggrieved by a final decision' -- not just the party that submitted a petition. Under Darby, the Motion must be denied."

Sisley further argues that even if exhaustion of remedies was required, it should be excused because the goals of the doctrine were not being met. First, the questions presented don't involve factual issues that implicate the DEA's "special expertise." The underlying science isn't being challenged, the statutory requires of the CSA are. Second, DEA review would only subject Sisley to undue prejudice -- here, the unreasonable or indefinite timeframe for administrative action, which is particularly important when public health is at stake. See League of United Latin Am. Citizens v. Wheeler, 899 F.3d 814, 828 (9th Cir. 2018). Importantly, the opposition notes the average delay in deciding petitions to reclassify drugs under the CSA is nine, long, years.

Well, as of Aug. 18, the tide just might be changing, The 9th Circuit issued an order denying the DEA's motion to dismiss the petitioner's lawsuit for failure to exhaust administrative remedies. The order is short and sweet: "The government's motion to dismiss this petition for review for failure to exhaust administrative remedies (Docket Entry No. 11) is denied without prejudice to renewing the arguments in the answering brief. See Nat'l Indus. v. Republic Nat'l Life Ins. Co., 677 F.2d 1258, 1262 (9th Cir. 1982) (merits panel may consider appellate jurisdiction despite earlier denial of motion to dismiss).

Petitioner's opening brief is due Sept. 29; the government's answering brief is due Oct. 29, 2020; the optional reply brief is due 21 days after service of the answering brief."

The fact that the 9th Circuit has refused to grant the motion to dismiss suggests it is actually leaning towards reviewing the arguments on their merits. This is analogous with what's happening in a separate lawsuit against the DEA, where petitioners challenging the federal prohibition of marijuana are asking the U.S. Supreme Court to now take their case. There, the 2nd Circuit ultimately decided to affirm the district court's ruling that they must first seek relief from the DEA itself -- but importantly, it held the case in abeyance and retained jurisdiction, rather than simply dismissing the lawsuit. However, the opinion did signal the changing tides we're seeing now:

"[This] raises a complex policy question: whether the extant regulatory regime continues to advance the CSA's goals in light of the current state of our knowledge about the drug. It is possible that the current law, though rational once, is now heading towards irrationality; it may even conceivably be that it has gotten there already ... Taking the facts as alleged, and, accordingly, taking the supposed benefits some Plaintiffs have experienced from marijuana as true as well, we -- like the District Court below -- are struck by the transformative effects this drug has assertedly had on some Plaintiffs' lives. As a result, we are troubled by the uncertainty under which Plaintiffs must currently live ... We think it possible that future action by us may become appropriate here. Plaintiffs have not asked for -- and we do not even consider issuing -- a writ of mandamus to force the DEA to act. But we exercise our discretion to keep jurisdiction of the case in this panel, to take whatever action may become appropriate if Plaintiffs seek administrative review and the DEA fails to act promptly. And we note that, under the unusual health-related circumstances of this case, what has counted as appropriate speed in the past may not count as appropriate speed here."

It's unclear whether the Supreme Court will hear the case -- the agency's response is due mid-September, and the justices will then vote on whether to grant certiorari and decide the merits of the appeal. But, there's a fair chance the case gets taken up, just like there's a good chance the 9th Circuit may decide Sisley's arguments on their merits. 