A federal appeals court has dismissed a petition to require the Drug Enforcement Administration (DEA) to reevaluate marijuana’s scheduling under the Controlled Substances Act (CSA)—but one judge said in a concurring opinion that the agency may soon be forced to consider a policy change anyway based on a misinterpretation of the medical value of cannabis.
In a ruling filed on Monday, the U.S. Court of Appeals for the Ninth Circuit determined that scientists and military veterans seeking the scheduling review had failed to exhaust administrative remedies, and, therefore, it dismissed the case without weighing in on the merits.
The lawsuit—filed last year by cannabis researcher Sue Sisley of the Scottsdale Research Institute, the Battlefield Foundation and veterans Lorenzo Sullivan and Gary Hess—received oral arguments in June and largely centers on DEA’s 2020 denial of a one-page marijuana rescheduling petition filed by a separate individual. In its response, the agency argued that marijuana has no currently accepted medical value.
Lawyers for the group appealed that decision, asking the court to order DEA to initiate a formal rulemaking process, which would involve expert testimony and public comment. They said that the agency’s summary dismissal of past rescheduling petitions has not only been unconstitutional but also prevented important research into the drug’s medical potential.
But in the new ruling, the three-judge panel held that “petitioners failed to exhaust their administrative remedies with the DEA.” And while “the CSA does not, in terms, require exhaustion of administrative remedies, the panel agreed with [an earlier court ruling] that the text and structure of the CSA show that Congress sought to favor administrative decision-making that required exhaustion under the CSA,” the opinion says.
“Petitioners seek to bypass the normal administrative process by seeking review of the DEA’s response to [Stephen Zyszkiewicz’s] petition and then seeking to make arguments never advanced by Zyszkiewicz. Nothing prevents Petitioners from filing a petition of their own before the DEA, raising the arguments they seek to raise before us now. Because Petitioners have failed to exhaust their administrative remedies with the DEA, their petition for judicial review is dismissed.”
The Ninth Circuit judges did reject a DEA argument that the plaintiffs lacked standing based on the fact that they were petitioning a rescheduling request filed separately by someone who wasn’t party to the latest suit and only suffered a “generalized grievance,” however.
“While it is undoubtedly true that the interests of third parties would be affected by a rescheduling of cannabis, this fact does not diminish Petitioners’ direct and particularized interest in rescheduling,” the panel found.
Moving forward, attorneys for the plaintiffs have a number of options at their disposal. That includes petitioning for a panel rehearing or even an appeal to the U.S. Supreme Court.
The petitioners initially filed their lawsuit, Sisley v. DEA, against the federal agency in May of last year, contending that DEA’s justification for maintaining a Schedule I status for cannabis violates the Constitution on numerous grounds. DEA attempted to dismiss the case, but the Ninth Circuit rejected that request in August.
Justice Department lawyer Daniel Aguilar, who represented the federal government at the oral argument in June, insisted that the court should dismiss the case and allow the group to file their own DEA rescheduling petition.
Judges Paul Watford concurred with the latest ruling, but he did notably say in a concurring opinion that, “in an appropriate case, the Drug Enforcement Administration may well be obliged to initiate a reclassification proceeding for marijuana, given the strength of petitioners’ arguments that the agency has misinterpreted the controlling statute by concluding that marijuana ‘has no currently accepted medical use in treatment in the United States.'”
Sisley, the lawsuit’s lead plaintiff and president of the Scottsdale Research Institute (SRI), is a DEA-licensed researcher focused on investigating the therapeutic potential of cannabis for veterans. She’s sought to become a federally authorized marijuana manufacturer so that her facility can produce higher quality products for studies.
SRI has already taken the feds to court over past marijuana decisions, with results to show for it. The institute successfully forced DEA to issue an update on the status of their application processing and then got the Justice Department to hand over a “secret” memo that DEA allegedly used to justify a delay in deciding those proposals.
In May, Sisley and SRI received preliminary approval from DEA to be one of the first new federally authorized cultivators of cannabis for research.
Read the full Ninth Circuit ruling in the DEA marijuana case below: