Case: 20-71433, 08/03/2020, ID: 11775930, DktEntry: 15, Page 1 of 9
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`SUZANNE SISLEY, M.D.; SCOTTSDALE
`RESEARCH INSTITUTE, LLC;
`BATTLEFIELD FOUNDATION, DBA
`Field to Healed; LORENZO SULLIVAN;
`KENDRICK SPEAGLE; GARY HESS,
`
`
`Petitioners,
`
`
`v.
`
`
`U.S. DRUG ENFORCEMENT
`ADMINISTRATION; WILLIAM P. BARR,
`Attorney General; TIMOTHY SHEA,
`Acting Administrator, Drug Enforcement
`Administration,
`
`
`Respondents.
`
`
`No. 20-71433
`
`REPLY IN SUPPORT OF MOTION TO DISMISS
`FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
`
`The Controlled Substances Act provides that persons may petition the Drug
`
`Enforcement Administration (DEA) Administrator, acting on delegated authority
`
`from the Attorney General, to remove or reschedule controlled substances through
`
`rulemaking. 21 U.S.C. § 811(a). The Act further provides that if the petition is
`
`denied, an “aggrieved person” may seek review of the denial in a court of appeals. Id.
`
`§ 877. Exercising their right to petition under § 811(a), Stephen Zyszkiewicz and
`
`Jeramy Bowers filed a petition asking DEA to reschedule marijuana. When their
`
`petition was denied, Zyszkiewicz sought review in the District Court for the District
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`SUZANNE SISLEY, M.D.; SCOTTSDALE
`RESEARCH INSTITUTE, LLC;
`BATTLEFIELD FOUNDATION, DBA
`Field to Healed; LORENZO SULLIVAN;
`KENDRICK SPEAGLE; GARY HESS,
`
`
`Petitioners,
`
`
`v.
`
`
`U.S. DRUG ENFORCEMENT
`ADMINISTRATION; WILLIAM P. BARR,
`Attorney General; TIMOTHY SHEA,
`Acting Administrator, Drug Enforcement
`Administration,
`
`
`Respondents.
`
`
`No. 20-71433
`
`REPLY IN SUPPORT OF MOTION TO DISMISS
`FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
`
`The Controlled Substances Act provides that persons may petition the Drug
`
`Enforcement Administration (DEA) Administrator, acting on delegated authority
`
`from the Attorney General, to remove or reschedule controlled substances through
`
`rulemaking. 21 U.S.C. § 811(a). The Act further provides that if the petition is
`
`denied, an “aggrieved person” may seek review of the denial in a court of appeals. Id.
`
`§ 877. Exercising their right to petition under § 811(a), Stephen Zyszkiewicz and
`
`Jeramy Bowers filed a petition asking DEA to reschedule marijuana. When their
`
`petition was denied, Zyszkiewicz sought review in the District Court for the District
`
`
`
`Case: 20-71433, 08/03/2020, ID: 11775930, DktEntry: 15, Page 2 of 9
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`of Columbia, which dismissed the action because Zyszkiewicz should instead have
`
`sought review in the court of appeals in accordance with the statute. Zyszkiewicz v.
`
`Barr, 2020 WL 3572908 (D.D.C. June 30, 2020) In dismissing the case, the district
`
`court explained that Zyszkiewicz had “an adequate remedy under the Controlled
`
`Substances Act,” because 21 U.S.C. § 877 allowed him to seek judicial review of
`
`DEA’s denial of his petition in “the D.C. Circuit or another appropriate circuit court.”
`
`Id. at *1.
`
`Petitioners here, rather than file their own petition for rulemaking with DEA,
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`purport to seek review of the denied petition filed by Zyszkiewicz and Bowers.
`
`Petitioners do not contend that the one-page petition filed by Zyszkiewicz and
`
`Bowers presented the arguments they would assert to this Court, and their attempt to
`
`bypass the administrative process is at odds with the structure of the Controlled
`
`Substances Act and the purposes of administrative exhaustion. Even when judicial
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`review is not premised on an agency’s denial of a petition for rulemaking, it is
`
`axiomatic that litigants must first present their arguments and evidence to the agency
`
`charged with implementing the statute, thus “produce[ing] a useful record for
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`subsequent judicial consideration.” Woodford v. Ngo, 584 U.S. 81, 89 (2006); Washington
`
`v. Barr, 925 F.3d 109, 117 (2d. Cir. 2019) (exhaustion under the Controlled Substances
`
`Act will “generate a comprehensive record that would aid in eventual judicial
`
`review”). Indeed, even when litigants pursue the administrative process and obtain a
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`final determination, courts will generally decline to hear contentions not properly
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`2
`
`
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`Case: 20-71433, 08/03/2020, ID: 11775930, DktEntry: 15, Page 3 of 9
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`presented to the agency. See United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 36-37
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`(1952); Pharmacy Doctors Enters. v. DEA, 789 F. App’x 724 (11th Cir. 2019). This
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`Court has thus repeatedly held that dismissal is appropriate when a party has not
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`exhausted their administrative remedies. See, e.g., Agua Caliente Tribe of Cupeño Indians of
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`Pala Reservation v. Sweeney, 932 F.3d 1207, 1216, 1219 (9th Cir. 2019) (petitioners “have
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`made no attempt to exhaust that [administrative] process” and “until they do so, they
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`are not entitled to the relief they seek in this lawsuit.”); Cabaccang v. U.S. Citizenship and
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`Immigration Services, 627 F.3d 1313, 1316-17 (9th Cir. 2010)(petitioners may not seek
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`judicial review “[u]ntil they have exhausted this available administrative remedy”).
`
`These principles apply with full force to petitions to reschedule controlled
`
`substances. See Washington, 925 F.3d at 122 (petitioner seeking to reschedule
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`marijuana required to pursue proceedings before DEA); cf. John Doe, Inc. v. DEA, 484
`
`F.3d 561, 570 (D.C. Cir. 2007) (plaintiff required to complete DEA administrative
`
`process and seek review under 21 U.S.C. § 877 rather than to “‘jump the gun’ by
`
`going directly to” court “instead of exhausting their administrative remedies before
`
`the agency.”).
`
`2. Petitioners nevertheless contend (at 17) that this principle is inapplicable
`
`here because they raise purely legal issues and “[n]o facts are disputed.” As an initial
`
`matter, that characterization is plainly incorrect. Their petition contends that DEA
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`has erred in concluding that there “is a lack of accepted safety for use of marijuana
`
`under medical supervision.” Dkt. 1-6 at 18, Sisley v. DEA, No. 20-71433 (9th Cir.
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`3
`
`
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`Case: 20-71433, 08/03/2020, ID: 11775930, DktEntry: 15, Page 4 of 9
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`May 21, 2020) (quotation marks omitted). That determination necessarily involves a
`
`detailed analysis of scientific studies to determine marijuana’s use under medical
`
`supervision, its safety in that use, and the standards for whether that safety is generally
`
`accepted.
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`In any event, litigants must present legal as well as factual contentions to an
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`agency, and petitioners are not excused from this requirement based on their
`
`assertions (at 18) that DEA has “no special expertise to apply” to their “purely legal”
`
`and constitutional challenges. Petitioners’ legal challenges cannot be divorced from
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`the underlying question of whether DEA appropriately construed the Controlled
`
`Substances Act and weighed the relevant evidence in denying a petition filed by two
`
`other people—questions as to which DEA clearly has expertise. See Dkt. 1-6 at 14-19,
`
`Sisley v. DEA (petition alleging that DEA has erred in construing the Act); Thunder
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`Basin Coal Co. v. Reich, 510 U.S. 200, 214-15 (1994) (holding that plaintiff must first
`
`exhaust administrative remedies because, inter alia, “ ‘agency expertise [could] be
`
`brought to bear on’ the statutory questions presented here”).
`
`Nor can petitioners disregard the agency process by characterizing their claims
`
`as a facial constitutional challenge. The Supreme Court has made clear that this
`
`argument is unavailing even when the substance of an agency’s determination is not
`
`intertwined with the constitutional assertions. In Elgin v. Department of Treasury, 567
`
`U.S. 1 (2012), where federal employees (who had been fired for failing to register for
`
`the draft) sought to bring a facial constitutional challenge to the Selective Service Act,
`
`4
`
`
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`Case: 20-71433, 08/03/2020, ID: 11775930, DktEntry: 15, Page 5 of 9
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`the Supreme Court held that the employees must first exhaust their remedies under
`
`the Civil Service Reform Act, which allowed them to seek administrative review of
`
`their firings. Id. at 5. The Court declined to create an exception for “facial
`
`constitutional challenges to statutes,” id. at 15, and explained that the agency could
`
`apply its expertise by potentially deciding in the employees’ favor on other grounds,
`
`id. at 22-23.1
`
`Petitioners’ attempted reliance (at 7-8) on Darby v. Cisneros, 509 U.S. 137 (1993),
`
`underscores the absence of any authority for their position. In Darby, the Department
`
`of Housing and Urban Development (HUD) initiated administrative proceedings
`
`against the plaintiffs and imposed a sanctions order against them that became final.
`
`509 U.S. at 141. Although the plaintiffs could have sought further review within
`
`HUD by appealing to the Secretary, they instead filed suit in district court to challenge
`
`the sanctions order. Id. at 141-42. The Supreme Court held that the plaintiffs did not
`
`need to seek further administrative review before filing their district court suit,
`
`because they were not required to do so by statute or regulation, and because they
`
`were challenging final agency action under the Administrative Procedure Act. Id. at
`
`
`1 Petitioners mistakenly cite Cirko v. Commissioner, 948 F.3d 148 (3d Cir. 2020),
`for the proposition that parties do not need to exhaust administrative remedies if they
`bring constitutional claims. But in Cirko, there was no dispute that the plaintiffs had
`completed their administrative proceedings and exhausted their available remedies.
`The Third Circuit concluded, based on its understanding of the Social Security Act,
`that the plaintiffs had not forfeited an Appointments Clause claim by failing to raise
`the issue during the course of those proceedings.
`
`5
`
`
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`Case: 20-71433, 08/03/2020, ID: 11775930, DktEntry: 15, Page 6 of 9
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`153-54. Here, by contrast, petitioners never participated in any administrative
`
`proceeding, and never petitioned DEA to reschedule marijuana.
`
`Pacific Maritime Ass’n v. NLRB, 827 F.3d 1203 (9th Cir. 2016), is equally
`
`inapposite. In that case, the plaintiff trade association took advantage of the available
`
`administrative remedies by seeking to intervene in NLRB administrative proceedings
`
`and filing briefs in those proceedings. Id. at 1205-06. Although the NLRB ultimately
`
`denied its intervention attempts, this Court held that the plaintiff was “aggrieved” by
`
`the NLRB’s denial of intervention and NLRB’s order regarding a labor dispute that
`
`directly affected the employment contract for one of plaintiff’s member businesses.
`
`Id. at 1206, 1211. Accordingly, the plaintiff could seek judicial review under the
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`applicable statute. Id. at 1211. Here, in contrast, petitioners have made no attempt to
`
`avail themselves of any administrative remedies. They did not join Zyszkiewicz and
`
`Bowers in filing a petition, nor did they file an separate petition to set out their own
`
`arguments for DEA’s consideration. And even assuming that petitioners could seek
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`review of the denial of the Zyszkiewicz-Bowers petition—notwithstanding their own
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`failure to file a petition and the separate request for judicial review made by
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`Zyszkiewicz himself—they could not pursue a challenge based on evidence and
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`contentions never presented to the agency.
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`Petitioners’ citations to Bonds v. Tandy, 457 F.3d 409 (5th Cir. 2006), and PDK
`
`Laboratories Inc. v. DEA, 362 F.3d 786 (D.C. Cir. 2004), are similarly unavailing. The
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`question in both cases was one of prudential standing, not administrative exhaustion.
`
`6
`
`
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`Case: 20-71433, 08/03/2020, ID: 11775930, DktEntry: 15, Page 7 of 9
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`The petitioner in PDK Laboratories completed all administrative proceedings before
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`seeking judicial review. 362 F.3d at 790-91. The petitioner in Bonds had been denied
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`employment at a pharmacy under applicable DEA regulations because of a past
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`criminal conviction. 457 F.3d at 411. Bonds’ prospective employer sought a waiver
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`from DEA, and when the waiver was denied, Bonds sought review of that order. Id.
`
`Petitioners appear to analogize their circumstances to those in Bonds, in that the
`
`employer, rather than Bonds himself, sought relief from DEA. But that analogy is
`
`inapt—unlike petitioners, Bonds was the subject of an application made to DEA,
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`which could only be made by his employer, and the merits of that application had
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`been presented to DEA. Even so, the Fifth Circuit held that Bonds lacked prudential
`
`standing because the waiver provision was not designed to protect his interests. Id. at
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`415-16.
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`3. Petitioners contend (at 19-20) that exhausting their administrative remedies
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`would prejudice them because they are unable to “obtain[] marijuana suitable for the
`
`safety and efficacy research” that they wish to perform. This kind of argument is
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`available to any litigant that would prefer to proceed directly to court rather than filing
`
`a rescheduling petition. In any event, pursuant to provisions of the Controlled
`
`Substances Act, petitioners may file applications with DEA to grow marijuana for
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`research purposes, 21 U.S.C. § 823(a), and petitioner Scottsdale Research Institute has
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`already filed such an application. See 84 Fed. Reg. 44920, 44923 (Aug. 27, 2019)
`
`(notice of Scottsdale Research Institute’s application to grow marijuana); 84 Fed. Reg.
`
`7
`
`
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`Case: 20-71433, 08/03/2020, ID: 11775930, DktEntry: 15, Page 8 of 9
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`54926 (Oct. 11, 2019) (amended notice). If petitioners are ultimately aggrieved by a
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`DEA decision on such applications to grow marijuana, they may seek judicial review
`
`of that decision under 21 U.S.C. § 877.
`
`CONCLUSION
`
`
`
`The petition should be dismissed.
`
`
`
`August 2020
`
`
`
`Respectfully submitted,
`
`MARK B. STERN
`
`/s/ Daniel Aguilar
`DANIEL AGUILAR
` (202) 514-5432
` Attorneys, Appellate Staff
` Civil Division, Room 7266
` Department of Justice
` 950 Pennsylvania Avenue, NW
` Washington, DC 20530-0001
`
`
`8
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`
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`Case: 20-71433, 08/03/2020, ID: 11775930, DktEntry: 15, Page 9 of 9
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`CERTIFICATE OF COMPLIANCE
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`I hereby certify that this motion complies with the requirements of Fed. R.
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`App. P. 27(d)(1)(E), 32(a)(5), and 32(a)(6) because it has been prepared in 14-point
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`Garamond, a proportionally spaced font. I further certify that this reply complies
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`with the page limitations of Circuit Rule 27-1(1)(d) because it does not exceed 10
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`pages.
`
`
`
`/s/ Daniel Aguilar
`Daniel Aguilar
`
`
`
`
`
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