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`
`No. 20-148
`
`In the
`Supreme Court of the United States
`
`
`
`
`
`MARVIN WASHINGTON, ET AL.,
`Petitioners,
`v.
`WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,
`Respondents,
`
`
`
`
`
`
`
`On Petition for Writ of Certiorari to the
`United States Court of Appeals for the Second Circuit
`
`
`
`
`
`
`BRIEF OF AMICUS CURIAE
`INTERNATIONAL CANNABIS BAR
`ASSOCIATION IN SUPPORT OF THE
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
`
`
`PAUL P. JOSEPHSON
`DUANE MORRIS LLP
`1940 Route 70 East
`Cherry Hill, NJ 08003
`(856) 874-4235
`ppjosephson@duanemorris.com
`
`
`ROBERT M. PALUMBOS
` Counsel of Record
`DUANE MORRIS LLP
`30 S. 17th Street
`Philadelphia, PA 19103
`(215) 979-1111
`rmpalumbos@duanemorris.com
`
`Counsel for Amicus Curiae
`September 14, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`i
`
`i
`
`DID THE SECOND CIRCUIT ERR IN
`
`RECOGNIZED THE HISTORY OF DELAY BY
`
`THE DEA AND THE PROSPECT OF
`
`IRREPARABLE HARM TO PETITIONERS?
`
`QUESTIONS PRESENTED
`QUESTIONS PRESENTED
`DID THE SECOND CIRCUIT ERR IN
`REQUIRING
`EXHAUSTION
`OF
`REQUIRING
`EXHAUSTION
`OF
`ADMINISTRATIVE REMEDIES ONCE IT
`ADMINISTRATIVE REMEDIES ONCE IT
`RECOGNIZED THE HISTORY OF DELAY BY
`THE DEA AND THE PROSPECT OF
`IRREPARABLE HARM TO PETITIONERS?
`IS
`EXHAUSTION
`OF
`THE
`DEA
`SCHEDULING PROCESS FUTILE BECAUSE
`THE DEA REFUSES TO ACKNOWLEDGE
`THE MEDICAL VALUE OF CANNABIS
`ESTABLISHED BY THE DEPARTMENT OF
`HEALTH AND HUMAN SERVICES AND
`ACCEPTED BY THE U.S. PATENT AND
`TRADEMARK OFFICE?
`
`
`IS
`
`EXHAUSTION
`
`OF
`
`THE
`
`DEA
`
`SCHEDULING PROCESS FUTILE BECAUSE
`
`THE DEA REFUSES TO ACKNOWLEDGE
`
`THE MEDICAL VALUE OF CANNABIS
`
`ESTABLISHED BY THE DEPARTMENT OF
`
`HEALTH AND HUMAN SERVICES AND
`
`ACCEPTED BY THE U.S. PATENT AND
`
`TRADEMARK OFFICE?
`
`
`
`1.
`
`2.
`
`
`
`
`
`

`

`
`
`ii
`
`TABLE OF CONTENTS
`
`QUESTIONS PRESENTED........................................ i
`
`TABLE OF AUTHORITIES ...................................... iii
`
`INTERESTS OF THE AMICUS .................................1
`
`SUMMARY OF THE ARGUMENT ............................8
`
`STATEMENT OF FACTS/HISTORY BELOW ........ 10
`
`
`
`
`
`1.
`
`2.
`
`PETITIONERS’ CLAIMS .................... 10
`
`THE DEA’S HISTORY OF
`DELAY AND DENYING PRIOR
`PETITIONS .......................................... 11
`
`
`REASONS FOR GRANTING THE PETITION ........13
`
`I.
`
`TO
`PETITIONERS
`REQUIRING
`ADMINISTRATIVE
`EXHAUST
`REMEDIES IGNORES THIS COURT’S
`PRECEDENT
`IN MCCARTHY V.
`MADIGAN .......................................................13
`CERTIORARI SHOULD BE GRANTED
`TO
`RESOLVE
`CONFLICTING
`POLICIES AND IMPLEMENTATIONS
`BY THREE FEDERAL DEPARTMENTS ...... 25
`CONCLUSION .......................................................... 28
`
`
`II.
`
`
`
`

`

`
`
`iii
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Albuquerque Pub. Sch. v. Sledge,
` 2019 WL 3755954 (D.N.M. Aug. 8, 2019) ............. 23
`
`Brown v. Woods Mullen Shelter/Bos. Pub. Health
`Comm’n., 2017 WL 4287909 (Mass. Super. Aug.
`28, 2017) ................................................................ 23
`
`
`Gibson v. Berryhill,
` 411 U.S. 564 (1973) ............................................... 24
`
`McCarthy v. Madigan,
` 503 U.S. 140 (1992) ....................................... passim
`
`Nation v. Trump,
` 2020 WL 3410887 (9th Cir. June 22, 2020) .......... 23
`
`Rehaif v. U.S.,
` 139 S.Ct. 2191 (2019) ............................................ 23
`
`Safe Streets Alliance v. Hickenlooper,
` 859 F.3d 865 (10th Cir. 2017) ............................... 24
`
`United States v. McIntosh,
` 833 F.3d 1163 (9th Cir 2016) .................................. 5
`
`CONSTITUTION AND STATUTES
`
`U.S. Const. Art. I, § 8, cl. 8 ........................................ 25
`
`18 U.S.C. § 812 .......................................................... 14
`
`

`

`iv
`
`
`Controlled Substances Act,
` 21 U.S.C. §§ 811, et seq. ................................ passim
`
`Consolidated and Further Continuing Appropriations
`Act, 2015, Pub. L. No. 113-235, 128 Stat. 2130
`(2014) ....................................................................... 5
`
`
`Consolidated Appropriations Act, 2016, Pub. L. No.
`114-113, 129 Stat. 2242 (2015) ............................... 5
`
`
`Consolidated Appropriations Act, 2017, Pub. L. No.
`115-31 (2017) ........................................................... 5
`
`
`Consolidated Appropriations Act, 2018, Pub. L. No.
`115-141, 132 Stat. 445 (2018). ................................ 5
`
`
`OTHER AUTHORITIES
`
`Americans for Safe Access, State of the State Report,
`(2020), https://www.safeaccessnow.org/sos ............ 2
`
`
`Denial of Petition to Initiate Proceedings to
`Reschedule Marijuana, 81 Fed. Reg. 53767
`(Aug. 12, 2016) ....................................................... 11
`
`
`Marijuana Policy Project, Medical Marijuana
`Patient Numbers (May 28, 2020),
`https://www.mpp.org/issues/medical-
`marijuana/state-by-state-medical-marijuana-
`laws/medical-marijuana-patient-numbers/ ............ 2
`
`
`
`
`
`
`

`

`v
`
`
`C. White, Why Marijuana Assets May Not Be
`Administered in Bankruptcy,
`https://www.justice.gov/ust/file/abi_201712.pdf/do
`wnload ...................................................................... 6
`
`
`
`
`

`

`
`
`1
`
`INTERESTS OF THE AMICUS
`
`
`Founded in 2015, the International Cannabis
`Bar Association
`(“INCBA”)
`is a membership
`organization of over 700 attorneys that advances the
`interests of its members and thousands of other
`attorneys across the United States and other
`jurisdictions. INCBA is the dba of Canbar Association,
`a nonprofit corporation organized under the California
`Nonprofit Mutual Benefit Corporation Act and self-
`certified as a 501(c)(6) organization under the Internal
`Revenue Code.1
`
`INCBA’s mission is to improve access to quality
`legal services for the cannabis industry and to
`facilitate the practice of law for attorneys serving
`patients and companies who serve them. INCBA
`provides premier educational events, maintains an
`international network of the most experienced legal
`counsel in cannabis, and advocates for the legal
`profession.
`
`INCBA’s members provide a wide range of legal
`advice and services to individuals, businesses, and
`nonprofits interested in state-sanctioned cannabis
`
`
`1 No party authored this amicus brief in whole or in part,
`and no party or its counsel made a monetary contribution
`intended to fund the preparation or submission of the brief.
`Counsel for the Petitioners and Respondents received timely
`notice and have each consented to INCBA filing this brief in
`support of the Petition for a Writ of Certiorari.
`
`
`
`
`
`

`

`2
`
`
`activities. Medical cannabis in one form or another has
`been legalized by 47 states. It is estimated that three-
`and-one-half million Americans presently use
`cannabis
`for therapeutic purposes.2
` INCBA’s
`members include litigators, transactional attorneys,
`and regulatory professionals. They practice law in
`areas that include, among others, securities, finance,
`corporate,
`real
`estate,
`intellectual
`property,
`commercial
`transactions,
`banking,
`antitrust,
`employment,
`environmental,
`immigration,
`bankruptcy and state receivership, insurance, and
`tax.
`
`
`INCBA’s members represent patients presently
`registered
`in state-authorized medical cannabis
`programs, seeking registration in such programs, or
`seeking to authorize such programs in the 17 states
`that have not yet implemented a robust medical
`cannabis program. INCBA members advise the
`businesses licensed to serve medical patients and the
`adult use market pursuant to state-authorized
`cannabis programs. INCBA’s members advise the
`many physicians, researchers and their medical and
`educational institutions who would otherwise study
`the medical efficacy and safety of cannabis, but for its
`Schedule I status.
`
`
`
`2 Americans for Safe Access, State of the State Report,
`(2020), https://www.safeaccessnow.org/sos; Marijuana Policy
`Project, Medical Marijuana Patient Numbers (May 28, 2020),
`https://www.mpp.org/issues/medical-marijuana/state-by-state-
`medical-marijuana-laws/medical-marijuana-patient-numbers/
`
`

`

`3
`
`
`
`INCBA members represent the thousands of
`banks, accountants, insurance companies, and other
`service providers that serve the state-authorized
`cannabis industry. INCBA’s attorneys advise and
`assist them in meeting their obligations under federal
`and state tax laws, state regulatory regimes, sovereign
`nation rules, and the rules of the many federal
`agencies that require some form of civil compliance
`from the cannabis industry, including, among others,
`the Department
`of Treasury
`(“Treasury”
`or
`“FinCEN”), the Department of Agriculture, the Food
`& Drug Administration (“FDA”), the Small Business
`Administration
`(“SBA”), and
`the Patent and
`Trademark Office (“USPTO”).
`
`It is critical to INCBA’s members, and to all
`attorneys advising clients on cannabis issues, that this
`Court grant certiorari and once and for all decide the
`constitutionality of the Controlled Substances Act, 21
`U.S.C. §§ 811, et seq. (“CSA”) with respect to cannabis.
`INCBA’s interest in this case arises out of its
`members’ ethical obligations to zealously represent
`their clients in a shifting legal landscape devoid of
`clarity.
`
`INCBA’s members, and indeed all lawyers
`advising patients and companies on cannabis laws,
`must navigate the tensions between federal and state
`laws. States, one after another, have enacted laws
`authorizing the cultivation, sale, and possession of
`cannabis. These states seek to replace illicit, black
`market activity with legal, regulated markets that
`ensure patient safety, transparency, taxation, and
`community reinvestment.
`
`

`

`4
`
`
`
`The complex maze of federal, state, county, and
`municipal laws make cannabis the most scrutinized
`agricultural commodity in the world. INCBA members
`must navigate all cannabis laws while representing
`their clients and also maintaining their oaths to
`uphold the Constitution, laws of the United States,
`and professional ethics obligations to clients.
`
`As explained below, Congress prohibits the
`Drug Enforcement Agency (“DEA”) from enforcing the
`CSA directly against the state-licensed cannabis
`industry. However, the DEA and other federal
`agencies regularly invoke the Schedule I status of
`cannabis to discourage hospitals and universities from
`researching cannabis upon pain of losing federal
`funding, to preclude veterans
`from consuming
`cannabis if they wish to receive benefits from the
`Department of Veterans Affairs, and to preclude the
`SBA from assisting businesses that serve the cannabis
`industry. For example, many companies discovered
`they were ineligible for Paycheck Protection Program
`(“PPP”) relief because they worked in or with the
`cannabis industry. Concurrently, many states have
`deemed cannabis businesses “essential” so they can
`continue to serve patients during the COVID
`pandemic.
`
`Since 2014, Congress has expressly prohibited
`the DEA and the Department of Justice (“DOJ”) from
`using appropriated funds to block states from
`implementing
`laws
`that authorize
`the use,
`distribution, possession, or cultivation of medical
`marijuana. (“Funding Riders,” also commonly referred
`
`

`

`5
`
`
`“Joyce-Blumenauer Amendment”).3
`the
`to as
`See United States v. McIntosh, 833 F.3d 1163, 1178
`(9th Cir 2016) (prohibiting prosecution of individuals
`engaged in activity authorized by state marijuana
`laws).
`
`
`The Funding Riders were enacted on the heels
`of the DOJ’s 2013 “Cole Memorandum” that
`recognized state legalization of cannabis and outlined
`eight key priorities for enforcement of the CSA against
`cannabis-related conduct. Shortly after, the Treasury
`Department authorized banks to serve the cannabis
`industry through a memorandum issued by FinCEN,
`conditioned on banks ensuring compliance with the
`Cole Memorandum. Though the Cole Memorandum
`was later rescinded by the Attorney General in 2018,
`the FinCEN Memorandum remains in effect to this
`day.
`
`
`As a result of these federal developments,
`vibrant
`state-level
`cannabis
`economies have
`flourished and attracted billions of dollars
`in
`investment. However, the state cannabis regulatory
`regimes include comprehensive regulation that is
`incongruent with any existing schedule in the CSA.
`Regardless of whether or how the DEA reschedules
`
`
`and Further Continuing
`3 See Consolidated
`Appropriations Act, 2015, Pub. L. No. 113-235, §538, 128 Stat.
`2130, 2217 (2014); Consolidated Appropriations Act, 2016, Pub.
`L. No. 114-113, §542, 129 Stat. 2242, 2332-33
`(2015);
`Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, §537
`(2017); Consolidated Appropriations Act, 2018, Pub. L. No. 115-
`141, §538, 132 Stat. 445 (2018).
`
`

`

`6
`
`
`interfere with
`it would necessarily
`cannabis,
`implementation of state-level regulation in direct
`contravention of the Funding Riders and the Tenth
`Amendment of the United States Constitution.
`
`The CSA also interferes with the rational and
`consistent implementation of federal laws in both
`federal courts and agencies. The Executive Office for
`U.S. Trustees maintains that
`individuals and
`companies deriving income from state-authorized
`cannabis activities may not have access to the nation’s
`bankruptcy courts because of the Schedule I status of
`cannabis. C. White, Why Marijuana Assets May Not
`Be
`Administered
`in
`Bankruptcy,
`https://www.justice.gov/ust/file/abi_201712.pdf/downl
`oad. Yet, these same litigants have access to and may
`be summoned into federal courts notwithstanding the
`CSA and the Schedule I status of cannabis. Choice of
`law principles under the Erie Doctrine could require
`that federal courts enforce cannabis-related contracts
`according to state law, the substance of which remains
`federally illegal. The Schedule I status of cannabis
`also means that attorney-client privilege could be
`pierced under the crime-fraud exception to federal
`evidentiary rules.
`
`Most incongruously, while the DEA has refused
`to reschedule cannabis based on an asserted lack of
`scientific evidence, the USPTO acknowledges the
`science behind the medical benefits of cannabis and
`grants patent protection
`for cannabis strains,
`products, and methods of production. USPTO has
`issued a patent to the Department of Health and
`Human Services without regard to the CSA. But the
`
`

`

`7
`
`
`Trademark Department of the USPTO continues to
`refuse to issue trademark protection to certain
`categories of goods and services based on the
`differentiation between industrial hemp under the
`2018 Farm Bill and marijuana under the CSA.
`
`The Federal Government’s approach to state-
`authorized cannabis – which flows directly from the
`Schedule I status of cannabis under the CSA –
`adversely impacts INCBA’s members and their clients
`daily.
` Attorneys are faced with the virtually
`impossible task of explaining a contradictory body of
`federal law completely at odds with state laws and the
`medical reality that cannabis has been shown to aid
`patients with a wide range of debilitating and life-
`threatening
`symptoms. The
`stakes are not
`inconsequential. Criminal penalties under the CSA
`are severe. Schedule I status means that state-
`licensed cannabis companies and noncannabis
`businesses that work with them are potentially liable
`under civil RICO statutes, notwithstanding that DOJ
`cannot prosecute a criminal RICO case against them.
`Similarly, attorneys face the possibility of discipline
`under professional ethics rules, jeopardizing their
`clients’ legal privileges when rendering advice, and
`forfeiting malpractice coverage for their acts and
`omissions – all because of because of
`the
`constitutionally repugnant CSA.
`
`INCBA members are directly affected by the
`Schedule I status of cannabis because their clients
`require legal advice to comply with the myriad and
`complex rules and regulations governing state-
`authorized cannabis programs, as well as federal tax,
`
`

`

`8
`
`
`employee safety, and other federal laws of general
`applicability to most businesses. But in so advising
`clients, INCBA attorneys face the ethical dilemma of
`advising clients who are acting in violation of federal
`law. See American Bar Association, Model Rules of
`Professional Conduct, Rule 1.2
`(d)
`(prohibiting
`attorneys from counseling a client to engage in
`criminal conduct). Consequently, while most INCBA
`members and their firms are willing to advise these
`clients, a chilling effect persists. Many other lawyers
`still decline or
`limit representation of
`these
`individuals and businesses because of the CSA.
`
`
`SUMMARY OF THE ARGUMENT
`
`
`requiring
`in
`The Second Circuit erred
`Petitioners to exhaust their administrative remedies
`by petitioning the DEA to reschedule cannabis before
`they can obtain judicial review of their constitutional
`claims.
`
`This Court observed in McCarthy v. Madigan,
`503 U.S. 140, 146 (1992) that notwithstanding
`prudential considerations, “federal courts are vested
`with a ‘virtually unflagging obligation’ to exercise the
`jurisdiction given to them.” (citations omitted). Thus,
`courts “must balance the interest of the individual in
`retaining prompt access to a federal judicial forum
`against countervailing institutional interests favoring
`exhaustion.” Id. Administrative remedies need not be
`pursued if the litigant’s interests in immediate judicial
`review outweigh the government’s
`interests
`in
`efficiency or administrative autonomy.
`
`
`

`

`9
`
`
`
`Petitioners’ interests grossly outweigh those of
`the government. Petitioners are suffering immediate
`and ongoing irreparable constitutional injuries. The
`DEA scheduling process cannot provide Petitioners
`relief from unconstitutional actions. The DEA is a law
`enforcement agency, not a court for constitutional
`claims. Consigning Petitioners
`to
`the DEA
`administrative process for reclassification is futile.
`Since the CSA’s enactment in 1970, the DEA has
`rejected or denied 10 cannabis reclassification
`petitions and taken, on average, nine years to do so.
`Most recently, in July 2016, the DEA denied
`rescheduling petitions filed by an individual in 2009
`and by the Governors of Washington and Vermont in
`2011, after six and one half years of delay.
`
`Promptly on the heels of the DEA’s 2016
`denials, Petitioners brought
`this constitutional
`challenge
`to
`the CSA and
`to
`the DEA’s
`implementation of the CSA. With these denials, the
`DEA established a classic Catch-22 situation:
`rescheduling has been denied time and again because
`the DEA claims there
`is a
`lack of research
`demonstrating the medical efficacy and safety of
`cannabis. But because of the Schedule I status of
`cannabis, it is virtually impossible to undertake that
`research without violating the CSA.
`
`The Second Circuit ignored McCarthy and erred
`in ruling as a prudential matter that Petitioners
`should nevertheless undertake the same petitioning
`process that has resulted in 10 denials and rejections
`already, including two that DEA denied mere months
`before the instant Complaint was filed.
`
`

`

`
`
`10
`
`It is hard to conceive of a more apt example of
`administrative futility than sending Petitioners back
`to the DEA for relief it cannot provide. Judicial
`deference to the DEA is perpetuating injury to the
`Petitioners and all who are compliant participants in
`state-authorized programs. The agency has made
`clear its position, time and again. The People have
`spoken, and it is time for this Court to consider the
`constitutional merits.
`
`
`STATEMENT OF FACTS/HISTORY BELOW4
`
`1.
`
`PETITIONERS’ CLAIMS
`
`
`
`
`The Second Circuit’s characterization that
`
`Petitioners seek to have DEA reschedule cannabis is
`clear error. Petitioners’ Complaint avoids any request
`for rescheduling and
`instead seeks
`judgment
`“declaring that the CSA … is unconstitutional … [and]
`a permanent injunction … restraining Defendants
`from enforcing the CSA, as it pertains to cannabis” on
`the grounds that is unconstitutional. Petitioners claim
`the CSA is unconstitutional with regard to cannabis
`because it violates the Due Process Clause of the Fifth
`Amendment, an assortment of protections guaranteed
`by the First, Ninth and Tenth Amendments, plus the
`fundamental liberty right to travel, the right to equal
`protection, and the right to substantive due process.
`In addition, they seek a declaration that in enacting
`
`
`4 INCBA adopts and incorporates Petitioners’ Statement
`of Facts and Appendix.
`
`

`

`11
`
`
`the CSA as it pertains to cannabis, Congress violated
`the Commerce Clause.
`
`The Second Circuit did recognize that this case
`
`presents at least one unusual and distinguishing
`feature compared to past challenges to the DEA’s
`classification of cannabis as a Schedule I drug: “among
`the Plaintiffs are individuals who plausibly allege that
`the current scheduling of marijuana poses a serious,
`life-or-death threat to their health.” (App.4a).
`
`Though not recognized below, and despite the
`
`fact Petitioners pled and argued the point, there is
`another distinction from past litigation that factors
`against requiring Petitioners to exhaust their
`remedies by filing yet another a futile scheduling
`petition with the DEA: the Petitioners filed their
`Complaint promptly after the DEA denied two
`rescheduling petitions, including one filed by the
`Governors of Washington and Vermont.
`
`
`
`THE DEA’S HISTORY OF DELAY AND
`DENYING PRIOR PETITIONS
`
`2.
`
`
`The DEA’s 2016 denials were based on one
`
`simple overarching finding: there are few, if any,
`clinical trials that have studied the efficacy, medical
`benefits, and safety of cannabis. See Denial of Petition
`to Initiate Proceedings to Reschedule Marijuana, 81
`Fed. Reg. 53767 (Aug. 12, 2016).
`
`The DEA’s conclusion was unsurprising and
`indeed, preordained: as explained within, because of
`the classification of cannabis as a Schedule I drug, it
`
`

`

`12
`
`
`is virtually impossible for high-quality research to be
`conducted.
`
`Petitioners pled with specificity the futile and
`
`dilatory nature
`of
`the DEA’s
`rescheduling
`proceedings. Amended Complaint, ¶¶ 354-370.
`Petitions to reschedule cannabis have been filed
`continuously with the DEA since shortly after the CSA
`was enacted, each of which the DEA denied after years
`of delay:
`
`
`
`(App. 249-54a).
`
`Significantly, the Second Circuit held that the
`CSA does not mandate that Petitioners exhaust
`
`•
`
`•
`
`•
`
`•
`
`•
`
`The first petition, filed in 1971, was
`denied after 8 years’ consideration, in
`1979.
`
`The next petition, filed in 1972, was
`denied after 20 years of proceedings, in
`1992.
`
`The next petition accepted by DEA, filed
`in 1995, was denied after 5 1/2 years, in
`2001.
`
`The next petition, filed in 2002, was
`denied after 8 ¾ years, in 2011.
`
`The latest two petitions, filed in 2009 and
`2011, were denied after 6 ½ years, on the
`same day in 2016.
`
`

`

`13
`
`
`(App.8a)
`to suit.
`remedies as a precondition
`(“Although the CSA does not expressly mandate the
`exhaustion of administrative remedies, our precedents
`indicate that it generally be required as a prudential
`rule of judicial administration.”) The court also
`expressly recognized the “precarious position of
`several of the Plaintiffs … and their argument that the
`administrative process may not move quickly enough
`to afford them adequate relief.” (App.9a). However, it
`erred in requiring exhaustion and offering to take
`action only “should the DEA not act with dispatch.” Id.
`As a result, the Second Circuit did not reach or express
`any view on the merits of Petitioners’ constitutional
`claims – “that is, whether marijuana should be listed
`or not.” Id.
`
`
`REASONS FOR GRANTING THE PETITION
`
`TO
`PETITIONERS
`REQUIRING
`EXHAUST ADMINISTRATIVE REMEDIES
`IGNORES THIS COURT’S PRECEDENT
`IN MCCARTHY V. MADIGAN.
`
`I.
`
`
`
`In McCarthy, this Court recognized that
`notwithstanding the prudential considerations that
`often militate
`in
`favor of the exhaustion of
`administrative remedies, the federal courts are not to
`shirk their “virtually unflagging obligation” to
`exercise the jurisdiction vested in the judiciary.
`Nothing in the CSA mandates that Petitioners
`petition the DEA to reschedule cannabis. On this
`point, both courts below agreed.
`
`
`

`

`14
`
`
`
`Nevertheless, the Second Circuit’s decision
`ignores the core analysis required by McCarthy –
`whether the individual’s interests in securing prompt
`judicial review of its claims outweigh the institutional
`interests of the administrative agency. Instead, it
`improperly focused on its perception of Congressional
`intent inferred by the rescheduling process set forth in
`the CSA at 18 U.S.C. § 812. The Second Circuit held
`that Congress’ enactment of the administrative
`rescheduling process expressed its intent that the
`courts should defer jurisdiction until the agency was
`afforded the chance to complete its administrative
`review.
`
`After fifty years of DEA denials, the courts owe
`no deference
`to administrative process when
`presented with concrete harm to Petitioners’ core life
`and liberty interests. Further, if Congress had
`intended such deference, it would have expressly
`stated exhaustion was necessary before judicial relief
`could be sought. It did not.
`
`The Second Circuit’s decision must be reversed
`because
`it
`ignored McCarthy’s command and
`relegated Petitioners to a lengthy, futile and biased
`administrative process that is entirely incapable of
`affording them the relief they seek – a declaration that
`the CSA is unconstitutional and an injunction
`prohibiting its enforcement as regards cannabis.
`
`McCarthy held exhaustion is not required in at
`least three broad sets of circumstances where
`individual interests weigh heavily against exhaustion.
`First, exhaustion is not required where to do so would
`
`

`

`15
`
`
`be futile, as where the agency is biased or has
`otherwise predetermined the issue. Second is where
`the agency is unable to grant relief because it lacks the
`institutional competence to resolve the particular type
`of issue presented, such as the constitutionality of the
`statute it is enforcing. The third circumstance is
`where resort to the administrative remedy would
`occasion undue prejudice.
`
`
`Tacitly acknowledging the DEA’s historic
`delays and disinclination to reschedule cannabis, the
`Second Circuit recognized that “undue delay by the
`agency might make applicable each of the three
`exceptions to exhaustion.” (App.20a). In light of the
`DEA’s dilatory
`track record with respect
`to
`rescheduling
`petitions,
`the
`court
`took
`the
`extraordinary step of retaining jurisdiction “to take
`whatever action may become appropriate … if the
`DEA fails to act promptly” if and when the Petitioners
`filed their scheduling petition. (App.21a).
`
`However, this was not the result required by
`McCarthy. Petitioners should have been excused from
`exhausting remedies, and their constitutional claims
`should have been heard. The law does not require
`Petitioners to waste countless resources and time
`mired in a years-long process on yet another petition
`doomed to fail before having their constitutional
`claims heard. As the Second Circuit recognized,
`Petitioners’ very life and liberty interests depend on
`having those claims timely heard and resolved. The
`appropriate forum is not an administrative agency
`charged primarily with the enforcement of criminal
`laws, but rather an Article III court. Petitioners
`
`

`

`16
`
`
`understandably declined to resign themselves to
`further administrative futility before the DEA, and
`now petition this Court for certiorari.
`
`This case falls squarely within each of the three
`circumstances described by this Court militating
`against sending the Petitioner back to the agency:
`
` •
`
`
`
`•
`
`•
`
`Exhaustion is futile because the DEA has
`denied or rejected each of the 10 prior
`rescheduling petitions, most recently just
`months prior to filing this Complaint,
`and the Schedule I status of cannabis
`prevents this or any Petitioner from
`gathering the medical and scientific data
`the DEA and FDA require.
`
`is
`scheduling process
`The DEA’s
`intended on its face to evaluate the
`medical efficacy and safety of the drug at
`issue, not to entertain constitutional
`claims.
`
`is
`The DEA’s rescheduling process
`plainly
`incapable of preventing the
`current
`and
`ongoing
`irreparable
`deprivation of Petitioners’ constitutional
`rights.
`
`
`Futility
`
`Exhaustion is unnecessary if it would be futile,
`either because agency decisionmakers are biased or
`because the agency has already determined the issue.
`
`

`

`17
`
`
`The DEA has determined the issue, no less than 10
`times to date. The Second Circuit found this
`consideration
`inapplicable because the Attorney
`General and Director of the DEA named in the
`Complaint no longer serve in these capacities.
`Petitioners allege a decades-long pattern of bias and
`animus motivating the enactment of the CSA and the
`practices of the agency from inception to the present
`time, not the isolated statements of individual officials
`at a single point in time.
`
`Petitioners’ Complaint detailed the long and
`unsuccessful history of petitions to reschedule
`cannabis, as well as the anti-cannabis bias of the DEA,
`its leaders past and present, and the then-Attorney
`General.
`
`Since the CSA was enacted in 1970, the DEA
`has been entertaining rescheduling petitions for the
`past fifty years on a virtually continuous basis and has
`rejected each one. Irrespective of the merits of the
`DEA’s decisions, it is plain the DEA is disinclined to
`change its position, at least in the absence of
`substantial new research that the DEA itself prohibits
`researchers from undertaking.
`
`The DEA has erected a classic Catch-22,
`Kafkaesque state of affairs that forever consigns
`cannabis to Schedule I status unless this Court steps
`in and exercises jurisdiction. According to the DEA,
`cannabis cannot be rescheduled because it has not
`been adequately researched for the FDA to conclude
`that it is effective and safe. But cannabis cannot be
`properly researched to the satisfaction of the DEA and
`
`

`

`18
`
`
`the FDA because to do so would violate the very law
`Petitioners and many others have sought to change
`through the administrative process of petitioning to
`reschedule cannabis – for the past fifty years – without
`success.
`
`No medical institution that receives or seeks
`federal funding is willing to sponsor and undertake
`the high-quality clinical studies of cannabis the DEA
`and FDA demand because of the significant risk and
`catastrophic consequence of losing the many streams
`of federal funding on which they rely. Hospitals
`cannot afford to jeopardize the Medicare, Medicaid,
`and many other streams of federal funds they receive
`by engaging in clinical research activity that requires
`them to procure and dispense a Schedule I drug in
`violation of the CSA.
`
`Likewise, colleges and universities cannot
`afford to sponsor this research and risk losing the
`billions of dollars in research grants, student financial
`aid, and other forms of federal financial assistance
`upon which they rely. Moreover, most research
`hospitals and research universities are 501(c)(3)
`nonprofit organizations
`that cannot afford
`to
`jeopardize the tax-exempt status upon which they
`have erected billion-dollar institutions by allowing
`researchers to properly evaluate the medical efficacy
`and safety of cannabis.
`
`Most vexing of all for the Petitioners, (as well as
`the patients, doctors and researchers who want to
`engage in this much-needed research), the federal
`agency requiring this research to reclassify cannabis
`
`

`

`19
`
`
`is the very same agency that vigorously wields the
`CSA and threat of enforcement action to prevent that
`research from being conducted. That threat is real:
`DOJ actively usurps the Funding Riders through
`administrative subpoenas and unwarranted antitrust
`scrutiny of
`cannabis
`companies.
`If
`research
`institutions were to engage in the research demanded
`by the DEA rescheduling process, they would subject
`themselves to prosecution and/or suspension and
`debarment from federal programs.
`
`Perhaps the most damning evidence of the
`futility of sending the Petitioners back to once again
`endure the Sisyphean task of the DEA rescheduling
`process is the federal government’s own patent
`application in 1999 entitled “Cannabinoids as Anti-
`Oxidants
`and Neuroprotectants.”
`(App.289a).
`Notwithstanding the DEA’s 2016 denials based on the
`FDA’s conclusions that cannabis has no medical use or
`efficacy, the same Department of Health and Human
`Services (“HH

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