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DEA Asks Federal Court To Dismiss Marijuana Rescheduling Lawsuit—Again

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The Drug Enforcement Administration (DEA) is again asking a federal court to reject a case calling for a review of its decision not to reclassify marijuana under federal law.

In a brief filed with the U.S. Court of Appeals for the Ninth Circuit on Monday, the federal agency asserted that the suit is invalid because the plaintiffs in the case weren’t the ones to make the ultimately rejected rescheduling request in the first place and, they claimed, the petition lacked merit in any case.

Scientists and veterans sued the federal agency in May, arguing that the legal basis DEA has used to justify keeping cannabis in Schedule I of the Controlled Substances Act is unconstitutional. They asked for a review of its decisions to reject rescheduling petitions in 2020, 2016 and 1992.

DEA asked the court to dismiss the suit, but that request was rejected in August. It was “denied without prejudice to renewing the arguments in the answering brief,” the judges said.

Now in its answering brief, the agency repeated several arguments attempting to make the case that the court should drop the case. They stated that the petitioners don’t have standing to pursue the suit, they failed to exhaust administrative options and the 2020 petition for rescheduling that’s in question was correctly decided when DEA denied it.

But these are effectively the same claims that the agency made when the court previously denied their request for a dismissal, attorneys representing the petitioners told Marijuana Moment. And that indicates that DEA might not have a strong defense against the lawsuit.

“I’m just going to say we feel really good about our position right now. On the first half of their brief, that’s largely what they wrote before. Some of its verbatim actually, they didn’t change anything,” Matt Zorn, a lawyer representing the Scottsdale Research Institute (SRI), said, adding that the rest are “just different flavors of the same arguments.”

“At base, they’re just complaining that we are appealing the decision.”

Shane Pennington, who is also working on the case, emphasized that DEA submitted arguments in their response that “the court has seen and rejected already, so that feels pretty good.”

Further, they said, the agency largely declined to argue against the merits of the case.

“To us, if you read our briefs, and you look at all the arguments we made, it makes us feel like maybe the reason is because they apparently don’t have a lot to say in response to those merits arguments,” Pennington said.

Petitioners have raised questions about DEA’s reliance on scheduling standards that they feel are arbitrary and misinterpret federal law. In particular, they are seeking reviews of the agency’s claims that marijuana must be strictly scheduled because, the government has claimed, it has no currently accepted medical value and has not been proven to be safe.

They also argue that another statutory policy DEA says necessitates marijuana being strictly controlled is unconstitutional.

In its past denials of rescheduling petitions, the agency has asserted that marijuana can only be placed in either Schedule I or II. But the plaintiffs said in an earlier filing that the statute justifying that determination is “an unconstitutional delegation of legislative authority” that “violates core separation of powers principles” by granting the attorney general authority to schedule drugs on his or her discretion based on an interpretation of international treaty obligations.

This isn’t the first time that SRI has taken the feds to court over their marijuana decisions.

The institute, which is among several dozen applicants to become a federally authorized manufacturer of cannabis for research purposes, 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 on those proposals.

In a separate lawsuit against DEA, medical cannabis patients challenging the federal prohibition of marijuana asked the U.S. Supreme Court to take their case after a series of rulings in lower courts since the original lawsuit was filed in 2017. The high court said in October that it would not be taking up that case, however.

Read DEA’s latest response in the marijuana rescheduling case below:

DEA response in reschedulin… by Marijuana Moment

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Photo elements courtesy of rawpixel and Philip Steffan.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

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