Attorneys representing scientists and veterans in a case against the Drug Enforcement Administration (DEA) are again asking a federal court to hear their case challenging marijuana’s federal classification. And a previously undisclosed document cited in their new brief shows that the government has been relying on the same type of arguments for decades to maintain the status quo.
In the latest back-and-forth in the case, plaintiffs filed a response to DEA’s request to dismiss the lawsuit, which centers on the agency’s denial of a petition to consider rescheduling cannabis.
The scientists argued that DEA is wrong in its primary claim that they lack grounds to pursue the court action, and they pointed out that the agency declined in its most recent brief to meaningfully respond to their merit-based arguments.
Therefore, plaintiffs are again asking the U.S. Court of Appeals for the Ninth Circuit to grant their “petition for review” of DEA’s rescheduling denial.
“Lacking a meaningful response on the merits, Respondents renew their jurisdictional attack,” the new filing states. “Those arguments all rest on the same mistaken assumption: that Petitioners cannot obtain judicial review of DEA’s final decision denying another’s petition for rulemaking.”
DEA has contended that, because the scientists were not behind the original rescheduling petition that the agency denied, they can’t fight the decision in court. But in their response, plaintiffs say they are directly impacted by that decision and are entitled to judicial review.
“Look, standing is a big deal, and so they have every right to raise it. But when you look at that in combination with the lack of argument they make on the merits, then you start to see that maybe something is going on,” Shane Pennington, one of the attorneys on the case, told Marijuana Moment.
“We wrote 20 pages of arguments in our opening brief, just on the textual problems with a five-part test [on drug scheduling]—the ways that it violates the text of the statute,” he said. “They respond to none of them. They’re wanting to control marijuana in Schedule I based on a standard they aren’t even willing to defend.”
The failure to consider rescheduling means that marijuana will remain in Schedule I of the Controlled Substances Act, inhibiting research into the plant that plaintiffs have been pushing to conduct for years.
Dr. Sue Sisley of the Scottsdale Research Institute (SRI), who is one of the plaintiffs, is a DEA-licensed researcher focused on investigating the therapeutic potential of cannabis for veterans. She’s been seeking to become a federally authorized marijuana manufacturer so that her facility can produce higher quality products for studies.
Sisley “picked up DEA’s gauntlet and threw her entire life behind unearthing the scientific truth about marijuana’s medicinal potential only to find herself ensnared in a Catch-22 of the agency’s making,” the filing says. “Yet, to get this Court to look the other way, Respondents portray her and the other Petitioners as suffering ‘generalized grievances’ unworthy of judicial review.”
The federal government’s reliance on procedural arguments when it comes to cannabis scheduling is a familiar story that goes back almost 50 years, according to a 1972 memo that the attorneys dug up and cited in their new filing.
The Bureau of Narcotics and Dangerous Drugs, a predecessor to DEA, sent a letter to the White House replying to a rescheduling petition to NORML, wherein it similarly referenced statutory obligations to maintain the existing schedule, rather than argue the merits.
“We concluded that the only alternative was to reject the petition,” the letter states. “The Attorney General simply has no powers to grant the petitioner’s request.”
Petitioners in the current case 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 the latest response in the case against DEA and the previously undisclosed government memo below: