throbber
NO. 20 _____
`
`In the
`Supreme Court of the United States
`
`MARVIN WASHINGTON DB, AS PARENT OF INFANT AB
`JOSE BELEN SC, AS PARENT OF INFANT JC AND
`CANNABIS CULTURAL ASSOCIATION, INC.,
`
`
`
`Petitioners,
`
`v.
`
`WILLIAM PELHAM BARR, IN HIS OFFICIAL CAPACITY
`AS UNITED STATES ATTORNEY GENERAL UNITED STATES
`DEPARTMENT OF JUSTICE TIMOTHY J. SHEA, IN HIS OFFICIAL
`CAPACITY AS ACTING DIRECTOR OF THE DRUG ENFORCEMENT
`ADMINISTRATION, UNITED STATES DRUG ENFORCEMENT
`ADMINISTRATION, AND THE UNITED STATES OF AMERICA,
`
`Respondents.
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Second Circuit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
`
`MICHAEL S. HILLER, ESQ.
` COUNSEL OF RECORD
`HILLER, PC
`641 LEXINGTON AVE, 29TH FLOOR
`NEW YORK, NY 10022
`(212) 319 4000
`MHILLER@HILLERPC.COM
`
`
`
`
`
`
`
`JOSEPH A. BONDY, ESQ.
`LAW OFFICES OF JOSEPH A. BONDY
`1776 BROADWAY, SUITE 2000
`NEW YORK, NY 10019
`(212) 219 3572
`JOSEPHBONDY@MAC.COM
`
`
`
`
`
`JULY 2, 2020
`
`COUNSEL FOR PETITIONERS
`
`SUPREME COURT PRESS ♦ (888) 958 5705 ♦ BOSTON, MASSACHUSETTS
`
`

`

`i
`
`QUESTIONS PRESENTED
`
`Three of the Petitioners require daily administra
`tion of medical cannabis to live. Despite classifying it
`a Schedule I drug under the Controlled Substances
`Act (“CSA”), the federal government, which owns
`domestic and international medical cannabis patents
`(“Federal Cannabis Patents”), has, for decades, repeat
`edly acknowledged that cannabis has safe and effec
`tive medical applications in the United States.
`
`THE QUESTIONS PRESENTED ARE
`
`1. Can Congress, consistent with the Due Process
`Clause of the Fifth Amendment to the U.S. Constitu
`tion, criminalize medical cannabis without exception,
`even for patients who require its daily administration
`to live?
`
`2. Given the three requirements for designation
`as a Schedule I drug under the CSA (21 U.S.C. §
`812(b)(1)), is the classification of cannabis so irrational
`that it violates the Due Process Clause of the Fifth
`Amendment to the U.S. Constitution?
`
`3. Can Congress, consistent with the Due Process
`Clause of the Fifth Amendment to the U.S. Constitu
`tion, require persons aggrieved by the classification
`of a substance under the CSA to submit to an admin
`istrative review process that cannot, as a matter of law,
`provide the relief they seek?
`
`
`
`

`

`ii
`
`CORPORATE DISCLOSURE STATEMENT
`
`All parties are listed on the cover. Pursuant to
`Rule 29.6 of this Court, Cannabis Cultural Association,
`Inc. (“CCA”), the only corporate Petitioner herein,
`represents that it has no parent company it is a non
`profit corporation and, therefore, no publicly held
`corporation owns any stock therein.
`
`
`
`
`
`

`

`iii
`
`LIST OF PROCEEDINGS
`
`United States Court of Appeals for the Second Circuit
`Docket No. 18 859
`
`Marvin Washington, Dean Bortell, as Parent of
`Infant Alexis Bortell, Alexis Bortell, Jose Belen,
`Sebastien Cotte, as Parent of Infant Jagger Cotte,
`Jagger Cotte, Cannabis Cultural Association Inc.,
`PlaintiffsAppellants, v.
`William Pelham Barr, in His Official Capacity as
`United States Attorney General, United States
`Department of Justice Uttam Dhillon, in His Official
`Capacity as the Acting Administrator of the Drug
`Enforcement Administration, United States Drug
`Enforcement Administration, United States of
`America, DefendantsAppellees.
`
`Date of Final Order February 3, 2020
`_________________
`
`United States District Court Southern District
`of New York
`
`No. 17 Civ. 5625
`
`Marvin Washington, Et Al., Plaintiffs, v.
`Jefferson Beauregard Sessions, III, Et Al., Defendants.
`
`Date of Final Opinion and Order February 26, 2018
`
`
`
`
`
`
`
`
`
`
`
`

`

`iv
`
`TABLE OF CONTENTS
`
`Page
`
`QUESTIONS PRESENTED ........................................ i
`
`CORPORATE DISCLOSURE STATEMENT ............ ii
`
`LIST OF PROCEEDINGS ......................................... iii
`
`TABLE OF AUTHORITIES .................................... viii
`
`PETITION FOR A WRIT OF CERTIORARI ............. 1
`
`OPINIONS BELOW ................................................... 1
`
`JURISDICTION .......................................................... 1
`
`CONSTITUTIONAL AND STATUTORY
`
`PROVISIONS INVOLVED .................................. 1
`
`PRELIMINARY STATEMENT .................................. 2
`
`STATEMENT OF FACTS ........................................ 11
`
` THE FEDERAL GOVERNMENT’S RECOGNITION
`THAT CANNABIS IS SAFE AND MEDICALLY
`EFFECTIVE ....................................................... 16
`
`REASONS FOR GRANTING THE PETITION ....... 22
`
`I. THE LOWER COURTS’ ERRORS BELOW HAVE
`CREATED A CIRCUIT SPLIT AS TO WHETHER
`THERE EXISTS A FUNDAMENTAL CONSTI
`TUTIONAL RIGHT TO TREAT WITH SAFE,
`EFFECTIVE AND AVAILABLE MEDICATIONS,
`WARRANTING SUPREME COURT REVIEW .......... 22
`
`II. THE IRRATIONAL CLASSIFICATION OF
`CANNABIS IS UNCONSTITUTIONAL AND HAS
`CREATED A CHAOTIC SITUATION IN WHICH
`AMERICANS CANNOT RATIONALLY DISCERN
`WHAT IS AND IS NOT LEGAL ............................. 29
`
`

`

`v
`
`TABLE OF CONTENTS – Continued
`
`Page
`
`III. THE LOWER COURTS ERRED IN RULING THAT
`CONSTITUTIONAL CLAIMS CAN BE ADDRESSED
`IN THE CONTEXT OF ADMINISTRATIVE REVIEW,
`AND IN SO DOING, CREATED ANOTHER CIRCUIT
`SPLIT ............................................................... 31
`
`IV. CLARIFICATION REGARDING THE LEGALITY
`OF CANNABIS IS OF VITAL CONCERN TO THIS
`NATION ............................................................ 33
`
`CONCLUSION .......................................................... 37
`
`
`
`
`
`

`

`vi
`
`TABLE OF CONTENTS – Continued
`
`Page
`
`APPENDIX TABLE OF CONTENTS
`
`OPINIONS AND ORDERS
`
`Order of the United States Court of Appeals for
`the Second Circuit (February 3, 2020) .............. 1a
`
`Opinion of the United States Court of Appeals for
`the Second Circuit (May 30, 2019) ..................... 3a
`
`Order of the United States Court of Appeals for
`the Second Circuit Denying Plantiff’s Motion
`to Extend (January 1, 2020) ............................ 30a
`
`Opinion and Order of the United States District
`Court for the Southern District of New York
`Granting Motion to Dismiss
`(February 26, 2018) .......................................... 32a
`
`
`
`CONSTITUTIONAL AND STATUTORY PROVISIONS
`
`Constitutional and Statutory Provisions ............... 59a
`
`CONGRESSIONAL RECORD
`
`Congressional Record ........................................... 100a
`
`OTHER DOCUMENTS
`Transcript of the Oral Argument in the United
`States District Court, Southern District of
`New York (February 14, 2018) ....................... 107a
`
`Amended Complaint
`
`(September 6, 2017) ........................................ 159a
`
`Letter from Petitioners’ Counsel Michael S. Hiller
`to the Clerk of Court of the Second Circuit
`Court of Appeals (September 10, 2019) ......... 280a
`
`

`

`vii
`
`TABLE OF CONTENTS – Continued
`
`Page
`
`United States Patent Cannabinoids as
`
`Antioxidants and Neuroprotectants
`
`(October 7, 2003) ............................................ 289a
`
`Guidance Memorandum from the United States
`Department of Treasury (FinCEN Guidance)
`(February 14, 2014) ........................................ 295a
`
`Justice Dept Press Release “Justice Department
`Issues Memo on Marijuana Enforcement”
`(January 4, 2018) ............................................ 309a
`
`
`
`Press Release by Senator Cory Gardner (R CO)
`
`(April 13, 2018) ............................................... 311a
`
`ISU Missoula Study (2002) .................................. 313a
`
`In the Matter of Marijuana Rescheduling, DEA
`Dkt.No. 86 22 (1988) (Relevant Excerpts) .... 383a
`
`Invitation from Congressman
`
`J. Luis Correa to Alexis Bortell
`
`(September 6, 2017) ........................................ 389a
`
`New York Times Article “Haldeman Diary Shows
`Nixon Was Wary of Blacks and Jews”
`(May 18,1984) ................................................. 391a
`
`
`
`Harper’s Magazine Article— “Legalize It All
` How to Win the War on Drugs”
`
`(April 1, 2016) ................................................. 395a
`
`Affidavit of Roger Stone
`
`(June 16, 2017) ............................................... 420a
`
`United Nations Single Convention on
` Narcotic Drugs, 1961, Relevant Excerpts ..... 427a
`
`
`
`
`
`

`

`viii
`
`TABLE OF AUTHORITIES
`
`Page
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Albuquerque Pub. Sch. v. Sledge,
`2019 WL 3755954 (D.N.M. Aug. 8, 2019) ......... 10
`
`Andrews v. Ballard,
`498 F.Supp. 1038 (S.D. Tex. 1980) .................... 23
`
`Barbuto v. Advantage Sales & Mktg., LLC,
`477 Mass. 456 (2017) ......................................... 10
`
`Booth v. Churner,
`532 U.S. 731 (2001) ........................................... 32
`
`Bowers v. Hardwick,
`478 U.S. 186 (1986) ........................................... 24
`
`Brown v. City of Jacksonville,
`2006 U.S. Dist. LEXIS 8162,
`25 (M.D. Fla. Feb. 17, 2006) ............................ 28
`
`Brown v. U.S.,
`256 U.S. 335 (1921) ........................................... 23
`
`Brown v. Woods Mullen Shelter/Bos.
`Pub.Health Comm’n., 2017 WL 4287909
`(Mass. Super. Aug. 28, 2017) ........................ 10
`
`City of Boerne v. Flores,
`521 U.S. 507 (1997) ............................................ 27
`
`City of New Orleans v. Dukes,
`427 U.S. 297 (1976) ........................................... 31
`
`Cruzan v. Missouri,
`497 U.S. 261 (1990) ............................... 24, 25, 26
`
`Cyr v. Addison Rutland Supervisory Union,
`60 F.Supp.3d 536 (D. Vt. 2017) ......................... 28
`
`

`

`ix
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`D.J.C. v. Amazon Com Dedc, LLC,
`2020 WL 1814775 (D.N.J. Apr. 9, 2020) ........... 10
`
`England v. Louisiana State Bd. of Examiners,
`259 F.2d 626 (5th Cir. 1958),
`cert. denied 359 U.S. 1012 (1959) ........... 4, 23, 24
`
`Gonzalez v. Raich,
`545 U.S. 1 (2005) ............................................... 26
`
`Hodgkins v. Peterson,
`355 F.3d 1048 (7th Cir. 2004) ........................... 28
`
`Jacobson v. Tahoe Regional Planning Agency,
`566 F.2d 1353 (9th Cir. 1977) ........................... 32
`
`Kimel v. Florida Bd. of Regents,
`528 U.S. 62 (2000) ............................................. 27
`
`Lawrence v. Texas,
`539 U.S. 558 (2003) ........................................... 24
`
`Leary v. U.S.,
`395 U.S. 6 (1969) ............................................... 13
`
`Mathews v. Diaz,
`426 U.S. 67 (1976) ............................................. 32
`
`Montana v. Egelhoff,
`518 U.S. 37 (1996) ............................................. 23
`
`N.O.R.M.L. v. Drug Enforcement Admin.,
`559 F.2d 735 (D.C. Cir. 1977) ........... 3, 18, 31, 32
`
`Natanson v. Kline,
`186 Kan. 393, 350 P.2d 1093 (Kan. 1960) ........ 22
`
`Nation v. Trump,
`2020 WL 3410887 (9th Cir. June 22, 2020) ...... 10
`
`

`

`x
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Noffsinger v. SSC Niantic Operating Co. LLC,
`273 F.Supp.3d 326 (D. Conn. 2017) .................. 10
`
`Obergefell v. Hodges,
`___ U.S. ___, 135 S.Ct. 2584 (2015) .................... 28
`
`Planned Parenthood v. Casey,
`505 U.S. 833 (1992) ............................................ 23
`
`Raich v. Gonzalez,
`500 F.3d 850 (9th Cir. 2007) ....................... 24, 29
`
`Rehaif v. U.S.,
`139 S.Ct. 2191 (2019) .......................................... 7
`
`Reiter v. Cooper,
`507 U.S. 258 (1993) ........................................... 32
`
`Roe v. Wade,
`410 U.S. 113 (1973) ........................................... 23
`
`Ross v. Blake,
`136 S.Ct. 1850 (2016) ........................................ 32
`
`Schaeffler Grp. USA, Inc. v. U.S.,
`786 F.3d 1354 (Fed. Cir. 2015) ......................... 31
`
`Schloendorff v. Society of New York Hosp.,
`105 N.E. 92 (N.Y. 1914) .............................. 24, 25
`
`Schuette v. Coalition to Defend Affirmative
`Action, Integration and Immigrant Rights
`and Fight for Equality By Any Means
`Necessary, 572 U.S. 291 (2014) ........................ 27
`
`Stenberg v. Carhart,
`530 U.S. 914 (2000) ........................................... 23
`
`U.S. v. Nesbeth,
`188 F.Supp.3d 179 (E.D.N.Y. 2016) .................... 9
`
`

`

`xi
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`U.S. v. Oakland Cannabis Buyers’ Coop.,
`532 U.S. 483 (2001) ........................................... 29
`
`Union Pacific R. Co. v. Botsford,
`141 U.S. 250 (1891) ........................................... 25
`
`CONSTITUTIONAL PROVISIONS
`
`U.S. Const. amend. V ........................................ passim
`
`STATUTES
`
`21 U.S.C. § 812 .......................................................... 29
`
`21 U.S.C. § 812(b)(1)) ........................................ passim
`
`21 U.S.C. § 841 ............................................................ 2
`
`21 U.S.C. § 844 ............................................................ 2
`
`JUDICIAL RULES
`
`Sup. Ct. R. 29.6 ........................................................... ii
`
`REGULATIONS
`
`21 C.F.R. § 1308.15(f) ............................................... 19
`
`21 C.F.R. § 312.34(b)(3) .............................................. 17
`
`LEGISLATIVE MATERIALS
`
`Denial of Petition to Initiate
`Proceedings to Reschedule Marijuana,
`CFR Chapter II and Part 1301,
`Fed. Register, Vol. 156, 53688
`(Aug. 12, 2016) ............................................... 3, 31
`
`

`

`xii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Drug Abuse Control Amendment–1970
`Hearings Before the Subcomm.
`on Public Health and Welfare,
`91st Cong. 179 (1970) .................................. 14, 16
`
`OTHER AUTHORITIES
`
`ABC7 EYEWITNESS NEWS,
`Western Illinois, Colorado State
`Universities to Offer CannabisRelated
`Degrees Starting This Fall,
`(February 11, 2020),
`https //abc7chicago.com/cannabis degree
`growing how to grow marijuana western
`illinois university/5921746/ .............................. 21
`
`ACLU,
`A Tale of Two Countries
`Racially Targeted Arrests in the Era of
`Marijuana Reform,
`https //www.aclu.org/report/tale two
`countries racially targeted arrests era
`marijuana reform
`(last visited June 29, 2020) ............................... 16
`
`Allana Akhtar,
`BUSINESS INSIDER
`Jobs in Pot are at an AllTime High, But
`the Boom is Causing Rifts in the
`Traditional Workforce, (Apr. 26, 2019),
`https //www.businessinsider.com/jobs in
`cannabis industry are growing 2019 4?
`utm_source=m sn.com&utm_medium=
`referral&utm_content=msn slideshow&
`utm_campaign=bodyurl .................................... 34
`
`

`

`xiii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Claire Hansen,
`U.S. NEWS & WORLD REPORT
`Attorney General Barr Calls Current
`Marijuana Situation ‘Intolerable,’
`Indicates Support for Reform Bill,
`(Apr. 10, 2019) ..................................................... 6
`
`Dan Hyman,
`N.Y. TIMES
`When the Law Says Using Marijuana Is
`O.K., but the Boss Disagrees,
`(July 19, 2019) ................................................... 10
`
`Dennis A. Rendleman,
`ABA, Ethical Issues in Representing
`Clients in the Cannabis Business
`“One Toke Over the Line?,” (July 2, 2019) ....... 21
`
`Doug Kronaizl,
`THE CENTER SQUARE
`TwoThirds of Americans Have Access to
`Medical Marijuana OneFourth Have
`Access to Recreational Usage,
`(Mar. 4, 2020), https //www.
`thecentersquare.com/national/two
`thirds of americans have access to
`medical marijuana one fourth have
`access to recreational/article_f1bb840e
`5e52 11ea 8e10 87e05c777253.html ................. 9
`
`Dwight K. Blake,
`AMERICAN MARIJUANA
`Medical Marijuana Statistics 2019,
`Usage, Trends and Data,
`https //americanmarijuana.org/medical
`
`

`

`xiv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`marijuana statistics/
`(last updated Mar. 10, 2020) ............................. 34
`
`E.I. Hillin,
`Expelled Students Sue Colleges Over
`Medical Marijuana Rules,
`Medical Marijuana, Inc.
`(October 31, 2019),
`https //www.medicalmarijuanainc.
`com/news/expelled students sue colleges
`over medical marijuana rules/.......................... 10
`
`Federation of State Medical Boards,
`CME Requirements For Medical
`Marijuana StatebyState Overview,
`(Jul. 25, 2019), http //www.fsmb.org/
`siteassets/advocacy/key issues/medical
`marijuana cme requirements.pdf. .................... 21
`
`Government of the United States Patent,
`1. WO1999053917Cannabinoids As
`Antioxidants and Neuroprotectants,
`Patentscope, https //patentscope.wipo.int/
`search/en/detail.jsf?docId=
`WO1999053917&redirectedID=true
`(last visited June 29, 2020). .............................. 19
`
`GW Pharmaceuticals Press Release, https //
`www.globenewswire.com/news release/
`2020/04/06/2012160/0/en/GW
`Pharmaceuticals plc and Its U S
`Subsidiary Greenwich Biosciences Inc
`Announce That EPIDIOLEX cannabidio
`l Oral Solution Has Been Descheduled
`And Is No Longer A Controlled Substan.
`html?print=1. ..................................................... 19
`
`

`

`xv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Javier Hasse,
`FORBES, U.S. Universities Offering
`CannabisFocused Graduate Programs
`And Master’s Degrees, (July 17, 2019) ............. 20
`
`MEDICAL MARIJUANA 2020,
`What Medical Research Says,
`https //www.medicalmarijuana2020.com/
`what medical research says
`(last visited June 29, 2020). .............................. 36
`
`Niall McCarthy,
`FORBES, Which States Made the Most Tax
`Revenue from Marijuana in 2018?
`[Infographic] (Mar. 26, 2019),
`https //www.forbes.com/sites/
`niallmccarthy/2019/03/26/which states
`made the most tax revenu e from
`marijuana in 2018 infographic/
`#7547293b7085. ................................................. 34
`
`Pamela L. Smithburger,
`Evaluation of Medical Marijuana Topics in
`the PharmD Curriculum a National
`Survey of Schools and Colleges of
`Pharmacy, Currents in Pharmacy
`Teaching and Learning, at 1 (Jan. 2019),
`https //www.sciencedirect.com/science/
`article/abs/pii/S1877129718301266
`(accord) ............................................................... 21
`
`Pat Evans,
`MARKET INSIDER,
`8 Incredible Facts About the Booming
`U.S. Marijuana Industry, (May 7, 2019),
`https //markets.businessinsider.com/news/
`
`

`

`xvi
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`stocks/weed us marijuana industry facts
`2019 5 1028 177375#the marijuana
`industry could soon be worth more than
`the gdp of 9 us states. ....................................... 34
`
`Samuel Adams,
`7 Old South Leaflets 417 (No. 173)
`(B. Franklin 1970)
`The Rights of the Colonists Report of the
`Committee of Correspondence to the
`Boston Town Meeting, (1772) ........................... 23
`
`State Medical Marijuana Laws,
`NCSL (Mar. 10, 2020), https //www.ncsl.
`org/research/health/state medical
`marijuana laws.aspx. .......................................... 9
`
`Susan Gunelius,
`CANNABIZ MEDIA,
`The Growth of Cannabis College Courses
`and Degrees, (Feb. 22, 2019),
`https //cannabiz.media/the growth of
`cannabis college courses and degrees/ ............. 21
`
`
`
`
`
`
`
`

`

`1
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`
`Petitioners respectfully seek a writ of certiorari
`to review the judgment of the United States Court of
`Appeals for the Second Circuit.
`
`
`
`OPINIONS BELOW
`
`The opinions below (App.1a 31a) are published
`at 925 F.3d 109 (2d Cir. 2019). The District Court’s
`opinion (App.32a 58a) is published at 17 Civ. 5625
`(AKH), 2018 WL 1114758 (S.D.N.Y. Feb. 26, 2018).
`
`
`
`JURISDICTION
`
`The Second Circuit entered judgment on February
`3, 2020. This Court’s 60 day extension moved the
`deadline for this petition to July 2, 2020.
`
`
`
`CONSTITUTIONAL AND
`STATUTORY PROVISIONS INVOLVED
`
`The following Constitutional and Statutory
`provisions are reproduced in the appendix at App.59a.
`
`● U.S. Const. amend I
`
`● U.S. Const amend V
`● 21 U.S.C. § 811
`
`

`

`2
`
`● 21 U.S.C. § 812
`● 21 U.S.C. § 841(b)(1)(A)(vii)
`● 21 U.S.C. § 841(b)(1)(B)(vii)
`● 21 U.S.C. § 844
`
`
`
`PRELIMINARY STATEMENT
`
`This case presents three issues, one of which has
`twice been left open by this Court, and two of which
`involve Circuit splits. The first issue—twice left
`open by this Court—is whether it is constitutional
`for Congress to criminalize medical cannabis, even
`for patients who require its daily administration to
`live. Petitioners AB, JC, and Army Specialist Jose
`Belen are three such patients as recognized by the
`District Court herein, they are “living proof of the
`medical appropriateness of marijuana” (App.143a).
`The District Court thereafter reinforced this point,
`asking rhetorically
`
`How could anyone say that your clients’
`lives have not been saved by marijuana?
`. . . You can’t, right? (App.143a 144a).
`
`Notwithstanding the District Court’s comments,
`cannabis has been classified alongside heroin and
`other life threatening drugs as a Schedule I substance
`under the CSA, rendering its cultivation, sale, posses
`sion or use a federal crime.1 Petitioners AB, JC, and
`Specialist Belen seek the opportunity to prove that
`the federal government’s criminalization of cannabis
`
`1 See 21 U.S.C. §§ 841, 844.
`
`

`

`3
`
`(“Criminalization of Cannabis”) violates their funda
`mental constitutional right to treat with the medication
`that keeps them alive. Instead, the District Court
`dismissed this action (App.57a 58a), and the Second
`Circuit affirmed, ruling that Petitioners’ prayer for
`relief—a declaration that the classification of cannabis
`is unconstitutional and a corresponding injunction
`against enforcement—is really a mere request to
`de schedule cannabis (App.3a 29a). The Second Circuit
`proceeded to hold that Petitioners, before proceeding
`with litigation, were required first to file a de
`scheduling petition with the Respondent Drug Enforce
`ment Administration (“DEA”), explaining “It cannot
`be seriously argued that [de scheduling] is not avail
`able through the administrative process” (App.16a).
`
`Leaving aside that claims seeking redress for
`constitutional injury cannot be resolved by the DEA,
`the Second Circuit’s ruling directly conflicts with the
`D.C. Circuit’s decision in N.O.R.M.L. v. Drug
`Enforcement Admin., in which the Court ruled, as a
`matter of law, that the “DEA must place marijuana
`in either schedule I or schedule II.”2 DEA has expressly
`followed the D.C. Circuit’s ruling in N.O.R.M.L. and
`has adopted it as its formal position on the issue.3
`Thus, Petitioners, who seek redress for violations of
`their constitutional rights, have been relegated to an
`administrative review process to obtain relief they do
`not seek from an agency that acknowledges its lack
`of jurisdiction to grant it. Regardless, the Second
`
`2 559 F.2d 735, 751 (D.C. Cir. 1977).
`
`3 Denial of Petition to Initiate Proceedings to Reschedule
`Marijuana, CFR Chapter II and Part 1301, Fed. Register, Vol.
`156, 53688, 53688 89 (Aug. 12, 2016).
`
`

`

`4
`
`Circuit decision herein and the D.C. Circuit’s decision
`in N.O.R.M.L. constitute a clear Circuit split,
`warranting this Court’s intervention.
`
`In dismissing this action, the Second Circuit
`prevented Petitioners from prosecuting their claim
`that the Criminalization of Cannabis deprives them
`of their fundamental right under the Due Process
`Clause to treat with a safe, effective and available
`medication that preserves their health and lives.
`Such a right, though not explicitly recognized by this
`Court, is implicit in several of its most noteworthy
`decisions which form the backbone of its Due Process
`Clause jurisprudence. Consistent with this Court’s
`decisions, the Fifth Circuit has recognized that the
`Due Process Clause guarantees the rights of patients
`to obtain access to safe and effective medical treatment
`free from governmental interference 4 however, in
`the ruling affirmed by the Second Circuit herein, the
`District Court ruled that “no such fundamental right
`exists” (App.53a)—another Circuit split.
`
`Lastly, the lower courts’ dismissal deprived Peti
`tioners of the opportunity to prove that the classifi
`cation of cannabis under the CSA is unconstitution
`ally irrational. In particular, Congress criminalized
`cannabis based upon legislative “findings” that, inter
`alia, there supposedly is no safe and accepted medi
`cal use for cannabis in the U.S., even under medical
`
`4 See, e.g., England v. Louisiana State Bd. of Examiners, 259
`F.2d 626, 627 (5th Cir. 1958), cert. denied 359 U.S. 1012 (1959).
`By making this argument, Petitioners do not contend that the
`federal government is constitutionally obliged to fund or pro
`vide health care—only that patients have a fundamental right
`to control their health care decisions.
`
`

`

`5
`
`supervision.5 However, as demonstrated below, the fed
`eral government has repeatedly taken action, both
`legislatively and administratively, to recognize that
`cannabis is both safe and medically effective in the
`treatment of disease, thereby fully controverting the
`congressional “findings” underlying the Criminalization
`of Cannabis and creating an internal conflict under
`federal law (“Internal Federal Conflict”).
`
`Further confusing the issue is the federal gov
`ernment’s acceptance, and active encouragement, of
`medical cannabis programs in 33 States, four U.S.
`Territories and the District of Columbia (collectively,
`“38 State Legal Cannabis Programs” or “38 State
`Legal Cannabis Jurisdictions”). Fourteen of those 38
`State Legal Cannabis Jurisdictions also allow for
`“adult” or “recreational” use, meaning that cannabis
`has been completely de criminalized and/or is regulated
`similarly to alcohol (“14 Adult Use Jurisdictions” or
`“14 Adult Use Programs”).
`
`Meanwhile, to support the State compliant cannabis
`industry, Congress has added funding riders to annual
`appropriations legislation every year since 2014,
`expressly prohibiting Respondents DEA and Justice
`Department from using any congressional monies to
`investigate or prosecute State compliant medical
`cannabis activity in the 38 State Legal Cannabis
`Jurisdictions (“Funding Riders”) (App.100a 106a).
`The notion that the federal government, under the
`CSA, has criminalized cannabis because it supposedly
`has no medical applications in the U.S. and cannot
`be safely administered even under medical supervision,
`while at the same time barring Respondents from
`
`5 See 21 U.S.C. § 812(b)(1).
`
`

`

`6
`
`enforcing that same statute in 38 State Legal Cannabis
`(Medical) Jurisdictions, and sanctioning the 14 Adult
`Use Programs (collectively, “Federal Acceptance”), is
`utterly irrational. Nonetheless, aside from its irration
`ality, the federal government’s confounding approach
`to cannabis has created a separate conflict (in addition
`to the Internal Federal Conflict)—specifically, the
`conflict between the federal government’s simultaneous
`Criminalization of Cannabis and the Federal
`Acceptance of the 38 State Legal Cannabis Programs
`(“Federal State Conflict”).
`
`As shown below, the irreconcilable Internal Federal
`and Federal State Conflicts have created an incom
`prehensible hodgepodge of laws, rules and regula
`tions that leaves cannabis patients, their physicians,
`cannabis businesses (“Cannabis Businesses”) and
`those businesses that support them (e.g., law and
`accounting firms, payroll companies, security firms)
`utterly confused as to what is legal and what is not—
`a situation that Attorney General Barr described in
`2019 congressional testimony as “intolerable.”6
`
`The consequences of the lower courts’ errors, and
`the confusion associated with the various conflicts
`under federal and state law are profound, given what
`is at stake for Petitioners and those similarly situated.
`AB’s circumstances are representative.
`
`AB was diagnosed with intractable epilepsy at
`age seven. Her parents, after watching her endure more
`than a year of daily (sometimes hourly) life threatening
`seizures, were offered two treatment options—a partial
`
`6 Claire Hansen, Attorney General Barr Calls Current Marijuana
`Situation ‘Intolerable,’ Indicates Support for Reform Bill, U.S.
`NEWS & WORLD REPORT (Apr. 10, 2019).
`
`

`

`7
`
`lobotomy, which likely would have rendered AB perma
`nently disabled, or treatment with medical cannabis.
`AB’s parents chose medical cannabis and AB hasn’t
`suffered a single seizure since—over five years ago.7
`
`Medical cannabis is the only treatment that
`keeps AB alive. And she is thriving (without any side
`effects). Although previously struggling academically
`(due to recurrent sick days), AB, now 14 years old,
`made the honor roll and the varsity volleyball team
`in her middle school last year has written a widely
`published book (App.175a) and even founded an
`organic garden program (Patches of Hope) to help
`struggling families (App.175a). Yet, because this truly
`extraordinary girl must keep her cannabis medication
`on her person at all times (see n.7, supra), AB cannot
`enter onto federal land, including, inter alia, any
`National Parks or Museums, or even the Washington,
`DC Mall.8 Thus, in 2017, when AB was invited by
`Representative J. Luis Correa to meet with him and
`other members of Congress on Capitol Hill regarding
`the proposed “Marijuana Justice Act” (App.389a 390a),
`she could not attend, as bringing her life sustaining
`
`7 AB treats with two types of medical cannabis—one, as a
`maintenance medication with low THC content, and the other
`as an emergency medication with a higher THC content, used
`similarly to an Epi Pen. On occasion, AB still experiences pre
`seizure onsets or “auras ” however, she is able to prevent these
`“auras” from developing into seizures by taking the higher THC
`content medication at the onset of symptoms. Thus, AB’s medi
`cal cannabis (particularly, her medication with elevated THC
`content) must be carried with her at all times.
`
`8 Rehaif v. U.S., 139 S.Ct. 2191, 2211 (2019) (“In a State that
`chooses to legalize marijuana, possession is wrongful [] if the
`defendant is on federal property”) (citation omitted).
`
`

`

`8
`
`medical cannabis with her could subject her parents to
`arrest, prosecution, and other collateral consequences
`(discussed infra). Earlier this year, AB, for the same
`reason, was the only member of her class unable to
`sign up for a planned class trip to the Capitol.
`
`AB, the daughter of two decorated military vete
`rans, also cannot enter her parents’ military base,
`where she is eligible for, but cannot receive, her family’s
`veteran benefits, including health insurance and edu
`cational programs (App.176a 177a).9 Time and again,
`AB is regularly deprived of rights, benefits and
`opportunities that other people have the luxury of
`taking for granted. Why? Because she suffers from
`a life threatening illness, the sole treatment for
`which has been declared illegal by the federal gov
`ernment.
`
`AB’s story is America’s story. More than 3,000,000
`Americans are registered patients who treat regularly
`with medical cannabis to maintain their health and
`lives.10 Yet, they are all resigned to living in fear
`
`9 Her younger sister, who is healthy and does not treat with
`medical cannabis, enjoys full access to all such programs.
`
`10 JC’s and Specialist Belen’s stories are equally compelling
`and heartbreaking. JC was diagnosed with Leigh’s Disease before
`the age of two. Patients diagnosed with this condition by age
`two have a life expectancy of four years. A week before his fourth
`birthday, JC was moved into a hospice (where he was expected
`to spend his last days), and, for the first time, placed on medical
`cannabis for palliative relief. But instead of continuing to
`deteriorate, JC recovered. He is now nine years old and living
`at home with his parents (App.181a). Specialist Belen suffered
`from PTSD after surviving a road side bomb attack in Iraq that
`killed most of his platoon. After experiencing debilitating
`suicidal ideation for years, Specialist Belen began treating with
`medical cannabis (App.179a). He is now married with children
`
`

`

`9
`
`that their conduct, while State legal, is unlawful
`under federal law. Conviction for a CSA felony typically
`results in, not only incarceration, but also a multitude
`of “collateral consequences,” including the forfeiture
`of a defendant’s civil rights and entitlements, such
`as, inter alia, the rights to vote, sit on juries, adopt a
`child (a five year restriction) and/or receive disaster
`relief funding.11
`
`As reflected below, the State legal cannabis
`industry has assumed a national dimension. More
`than two thirds of Americans—over 220 million people
`—have access to medical cannabis in the 38 State
`Legal Cannabis Jurisdictions.12 Of those people, more
`than 80 million live in the 14 Adult Use Jurisdic
`tions.13 As shown below, tens of billions of dollars
`have been invested in the State legal cannabis
`industry, employing hundreds of thousands of people
`throughout the nation. Cannabis Businesses have
`been deemed “essenti

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