FOR PUBLICATION
`
`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,
`
`No. 20-71433
`
`DEA No.
`DEA-427
`
`OPINION
`
`v.
`
`U.S. DRUG ENFORCEMENT
`ADMINISTRATION; MERRICK B.
`GARLAND, Attorney General; ANNE
`MILGRAM, Administrator, Drug
`Enforcement Administration,
`Respondents.
`
`On Petition for Review of an Order of the
`Drug Enforcement Agency
`
`Argued and Submitted June 10, 2021
`Seattle, Washington
`
`Filed August 30, 2021
`
`Before: William A. Fletcher, Paul J. Watford, and
`Daniel P. Collins, Circuit Judges.
`
`
`
`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,
`
`No. 20-71433
`
`DEA No.
`DEA-427
`
`OPINION
`
`v.
`
`U.S. DRUG ENFORCEMENT
`ADMINISTRATION; MERRICK B.
`GARLAND, Attorney General; ANNE
`MILGRAM, Administrator, Drug
`Enforcement Administration,
`Respondents.
`
`On Petition for Review of an Order of the
`Drug Enforcement Agency
`
`Argued and Submitted June 10, 2021
`Seattle, Washington
`
`Filed August 30, 2021
`
`Before: William A. Fletcher, Paul J. Watford, and
`Daniel P. Collins, Circuit Judges.
`
`
`
`2
`
`SISLEY V. USDEA
`
`Opinion by Judge W. Fletcher;
`Concurrence by Judge Watford;
`Concurrence by Judge Collins
`
`SUMMARY*
`
`Exhaustion / Controlled Substances Act
`
`The panel dismissed a petition for review of a Drug
`Enforcement Agency (“DEA”) letter responding to a request
`that the DEA reschedule marijuana in all of its forms under
`the Controlled Substances Act (“CSA”).
`
`Stephen Zyszkiewicz, a California state prisoner, joined
`by Jeramy Bowers, a medical cannabis patient, submitted a
`one-page handwritten petition to the DEA, seeking to
`reschedule marijuana. The DEA responded by letter, denying
`the request. Petitioners in this case are Dr. Suzanne Sisley,
`Scottsdale Research Institute, LLC, Battlefield Foundation,
`and three veterans, who filed in this court a petition for
`review of the DEA’s response.
`
`The panel held that petitioners had Article III standing.
`The panel rejected the government’s contention that
`petitioners lacked standing because they only asserted a
`generalized grievance. Rather, petitioners contended that
`they suffered direct and particularized harms due to the
`misclassification of cannabis.
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`SISLEY V. USDEA
`
`3
`
`The panel held that petitioners failed to exhaust their
`administrative remedies with the DEA. Although the CSA
`does not, in terms, require exhaustion of administrative
`remedies, the panel agreed with the Second Circuit that the
`text and structure of the CSA show that Congress sought to
`favor administrative decisionmaking that required exhaustion
`under
`the CSA.
` Petitioners did not seek
`to
`join
`Zyszkiewicz’s one-page petition or seek to intervene with
`respect to his petition to the DEA. In addition, petitioners did
`not raise the issue that Zyszkiewicz raised in his petition to
`the DEA, but instead raised two different arguments. The
`panel concluded that under the circumstances of this case
`petitioners had not exhausted their administrative remedies
`and had given no convincing reasons to excuse their failure
`to exhaust.
`
`Judge Watford concurred. He wrote separately to note
`that in an appropriate case, the DEA may be obliged to
`initiate a reclassification proceeding for marijuana given the
`strength of petitioners’ argument
`that
`the agency
`misinterpreted the CSA by concluding that marijuana has no
`currently accepted medical use in the United States.
`
`Judge Collins concurred in Parts I, II(B), and III of the
`majority opinion. He did not join Part II(A), which
`concluded that petitioners had Article III standing to
`challenge the denial of Zyszkiewicz’s handwritten petition to
`the DEA. Given that petitioners’ failure to exhaust
`administrative remedies was dispositive here, there was no
`need to address petitioners’ Article III standing.
`
`
`
`4
`
`SISLEY V. USDEA
`
`COUNSEL
`
`Matthew Zorn (argued), Yetter Coleman LLP, Houston,
`Texas; Shane Pennington (argued), Vicente Sederberg LLP,
`New York, New York; for Petitioners.
`
`Daniel Aguilar (argued) and Mark B. Stern, Appellate Staff,
`Civil Division, United States Department of Justice,
`Washington, D.C., for Respondents.
`
`Erica W. Harris, Susman Godfrey LLP, Houston, Texas, for
`Amicus Curiae Iraq and Afghanistan Veterans of America.
`
`Lisa L. Pittman, Coats Rose P.C., Austin, Texas, for Amici
`Curiae Rice University’s Baker Institute of Public Policy,
`Drug Policy Program, Dr. Kevin Boehnke, and Dr. Daniel
`Clauw.
`
`John McKay and Christopher Morley, Davis Wright
`Tremaine LLP, Seattle, Washington; Giancarlo Urey, Nicole
`S. Phillis, and Heather F. Canner, Davis Wright Tremaine
`LLP, Los Angeles, California; for Amici Curiae Lori Walker
`PhD, Stephen Defelice MD, Lyle E. Craker PhD, Daniela
`Vergara PhD, Christopher J. Hudalla PhD, Rachna Patel MD,
`Wendy and Tom Turner, and Maureen Leehey MD.
`
`
`
`SISLEY V. USDEA
`
`OPINION
`
`5
`
`W. FLETCHER, Circuit Judge:
`
`Stephen Zyszkiewicz, joined by Jeramy Bowers, filed a
`one-page, handwritten petition to the United States Drug
`Enforcement Administration
`(“DEA”) seeking
`the
`rescheduling of marijuana in all of its forms under the
`Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq.
`The DEA wrote a
`letter
`in response, stating
`that
`Zyszkiewicz’s letter was not in the proper format for a
`petition but that it welcomed the opportunity to respond to his
`concerns. The DEA’s letter gave reasons for having denied
`an earlier rescheduling petition filed by Governors Lincoln
`Chafee of Rhode Island and Christine Gregoire of
`Washington State. Zyszkiewicz treated the DEA’s answer as
`a denial of his petition and unsuccessfully sought judicial
`review.
`
`Dr. Suzanne Sisley, Scottsdale Research Institute, LLC
`(“SRI”), Battlefield Foundation (the non-profit research arm
`of SRI), and three veterans (collectively, “Petitioners”) seek
`judicial review of the DEA’s response to Zyszkiewicz’s
`petition.
` Petitioners did not seek
`to
`intervene
`in
`Zyszkiewicz’s petition before the DEA, nor have they filed a
`petition of their own before the DEA. The arguments
`Petitioners now seek to raise were not made in Zyszkiewicz’s
`petition.
`
`The government challenges Petitioners’ standing and
`argues that Petitioners failed to exhaust their claims before
`the DEA. We hold that Petitioners satisfy Article III’s
`standing requirements, but that they have failed to exhaust
`their administrative remedies under the CSA. We therefore
`
`
`
`SISLEY V. USDEA
`
`o not reach the merits of Petitioners’ arguments. We
`dismiss their petition for review.
`
`6 d
`
`I. Background
`
`A. The Controlled Substances Act
`
`The Controlled Substances Act of 1970 places federally
`regulated substances into one of five schedules depending on
`the substance’s “potential for abuse,” “medical use,” “safety,”
`and likelihood of physical or psychological “dependence.”
`See 21 U.S.C. § 812(b). Schedule I is the most restrictive
`schedule. Marijuana is currently a Schedule I substance. To
`merit scheduling in Schedule I, a substance must have “a high
`potential for abuse,” “no currently accepted medical use in
`treatment in the United States,” and “a lack of accepted safety
`for use . . . under medical supervision.” Id. § 812(b)(1)(A),
`(B), (C). Schedule II requires, inter alia, that a substance
`have “a currently accepted medical use in treatment in the
`United States or a currently accepted medical use with severe
`restrictions.” Id. § 812(b)(2)(B). Schedules III through V
`each require, inter alia, “a currently accepted medical use in
`treatment in the United States.” Id. § 812(b)(3)–(5).
`
`The CSA authorizes the Attorney General through
`rulemaking proceedings to reclassify drugs by assigning them
`to less restrictive schedules, or to remove them from control
`entirely. 21 U.S.C. § 811(a). The Attorney General may
`initiate rulemaking proceedings “(1) on his own motion, (2) at
`the request of the [Department of Health and Human Services
`(“HHS”)] Secretary, or (3) on the petition of any interested
`party.” Id. The Attorney General has delegated this authority
`to the DEA Administrator.
`
`
`
`SISLEY V. USDEA
`
`7
`
`Before initiating proceedings to control, reschedule, or
`remove a substance from control, the Attorney General must
`request (1) “a scientific and medical evaluation” and (2) a
`scheduling recommendation from the HHS Secretary. Id.
`§ 811(b). “If control is required by United States obligations
`under international treaties, conventions, or protocols in
`effect on October 27, 1970, the Attorney General shall issue
`an order controlling such drug under the schedule he deems
`most appropriate to carry out such obligations, without regard
`to the findings required by subsection (a) of [section 811] or
`section 812(b) of this title and without regard to the
`procedures prescribed by subsections (a) and (b) of [section
`811].” Id. § 811(d)(1).
`
`“[A]ny person aggrieved by a final decision of the Attorney
`General [under this subchapter] may obtain review of the
`decision in the United States Court of Appeals for the District
`of Columbia or for the circuit in which his principal place of
`business is located upon petition filed with the court and
`delivered to the Attorney General within thirty days after
`notice of the decision.” Id. § 877.
`
`B. Zyszkiewicz’s Petition to the DEA
`
`Stephen Zyszkiewicz, a prisoner in Soledad State Prison
`in California, joined by Jeramy Bowers, a “medical cannabis
`epilepsy patient,” submitted a one-page, handwritten petition
`to the DEA, dated January 3, 2020, seeking to reschedule
`marijuana or to remove it from the schedules. Zyszkiewicz
`stated in his petition that he was in prison after a conviction
`for selling cannabis. Zyszkiewicz’s petition read, in relevant
`part:
`
`
`
`8
`
`SISLEY V. USDEA
`
`I hereby petition the US AG, DOJ, ONDCP,
`DEA and Congress to remove or reschedule
`cannabis (marijuana) in all its forms . . . .
`
`Petitioner finds the current situation of
`cannabis in Schedule I completely untenable.
`Half the states allow for medical use and the
`FDA allows CBD and THC pharmaceuticals
`as well as IND Compassionate Use.
`
`Under the Constitution and 21 USCS 811, 812
`the continued war on drugs (cannabis) must
`be corrected by removing or rescheduling
`cannabis.
`
`The DEA responded by letter to Zyszkiewicz’s petition on
`April 22, 2020. The letter stated:
`
`. . . Although your letter is not in the proper
`format of a petition as outlined in Section 811
`of
`the Federal Criminal Code, DEA
`appreciates the opportunity to address your
`concerns.
`
`On August 12, 2016, the Federal Register
`addressed similar concerns from a petition
`submitted on November 30, 2011, from the
`Honorable Lincoln D. Chafee and
`the
`Honorable Christine O. Gregoire. The above
`[governors] petitioned DEA
`to
`initiate
`rulemaking proceedings under
`the
`rescheduling provisions of
`the
`[CSA].
`Specifically, they petitioned DEA to have
`marijuana and “related items” removed from
`
`
`
`SISLEY V. USDEA
`
`9
`
`schedule I of the CSA and rescheduled as
`medical cannabis in schedule II. They
`requested that DEA remove marijuana and
`related items from schedule I based on their
`assertion that: (1) Cannabis has accepted
`medical use in the United States; (2) Cannabis
`is safe for use under medical supervision;
`(3) Cannabis for medical purposes has a
`relatively low potential for abuse, especially
`in comparison with other schedule II drugs.
`
`In accordance with the CSA rescheduling
`provisions, after gathering the necessary data,
`DEA requested a scientific and medical
`evaluation and scheduling recommendation
`from [HHS]. HHS concluded that marijuana
`has a high potential for abuse, has no accepted
`medical use in the United States, and lacks an
`acceptable level of safety for use even under
`medical supervision.
` Therefore, HHS
`recommended
`that marijuana remain
`in
`schedule I. The scientific and medical
`evaluation and scheduling recommendation
`that HHS submitted to DEA is enclosed with
`this letter.
`
`Based on HHS’s evaluation and all other
`relevant data, DEA has concluded that there is
`no substantial evidence that marijuana should
`be removed from schedule I. A document
`prepared by DEA addressing these materials
`in detail is also enclosed. In short, marijuana
`continues to meet the criteria for schedule I
`control under the CSA.
`
`
`
`10
`
`SISLEY V. USDEA
`
`In sum, DEA recognizes the possibility that
`drugs containing marijuana or its derivatives
`might, in the future, be proven to be safe and
`effective
`for
`the
`treatment of certain
`conditions and thus approved [] by the United
`States Food and Drug Administration for
`marketing. Until then, we will continue to
`identify opportunities to assist researchers in
`this area while never losing sight of the need
`to protect the public.
`
`Zyszkiewicz petitioned for mandamus in the District
`Court for the District of Columbia. The district court denied
`mandamus, and the D.C. Circuit affirmed. See Zyszkiewicz
`v. Barr, No. CV 20-1599, 2020 WL 3572908 (D.D.C. June
`30, 2020), aff’d, 831 F. App’x. 519 (D.C. Cir. 2020).
`Zyszkiewicz also petitioned for review directly to the D.C.
`Circuit, which denied the petition as untimely. Order,
`Zyszkiewicz v. Barr, No. 20-1308 (D.C. Cir. Jan. 25, 2021).
`Petitioners did not seek to join or to intervene in either of
`Zyszkiewicz’s judicial petitions.
`
`C. The Present Petition
`
`On May 21, 2020, Petitioners filed in this court a petition
`for review of the DEA’s response to Zyszkiewicz’s petition.
`Petitioners argue (1) that the DEA’s interpretation of “no
`currently accepted medical use” under 21 U.S.C.
`§ 812(b)(1)(B) with respect to cannabis is arbitrary and
`capricious or otherwise contrary to law; and (2) that
`21 U.S.C. § 811(d)(1) constitutes an unconstitutional
`delegation of legislative power. Neither of these arguments
`was made in Zyszkiewicz’s petition.
`
`
`
`SISLEY V. USDEA
`
`11
`
`The government moved to dismiss for failure to exhaust
`administrative remedies. A motions panel of this court
`denied the government’s motion without prejudice to
`presenting the argument in its brief to the merits panel.
`
`II. Discussion
`
`The government makes two preliminary arguments:
`(1) that Petitioners lack standing under Article III and (2) that
`Petitioners have failed to exhaust their administrative
`remedies under the CSA. We conclude that Petitioners have
`Article III standing, but that they have failed to exhaust their
`administrative remedies. We therefore dismiss the petition
`without reaching the merits.
`
`A. Article III Standing
`
`Article III standing requires that a plaintiff demonstrate
`(1) an “injury in fact,” (2) “a causal connection between the
`injury and the conduct complained of,” and (3) a likelihood
`“that the injury will be redressed by a favorable decision.”
`Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)
`(quotations omitted). “An injury in fact is an invasion of a
`legally protected interest that is concrete and particularized
`and actual or imminent, not conjectural or hypothetical.”
`Novak v. United States, 795 F.3d 1012, 1018 (9th Cir. 2015)
`(quotation marks and alteration omitted) (citing Lujan,
`504 U.S. at 560). “Because a generalized grievance is not a
`particularized injury, a suit alleging only generalized
`grievances fails for lack of standing.” Id. “The fact that a
`harm is widely shared does not necessarily render it a
`generalized grievance.” Ecological Rts. Found. v. Pac. Gas
`& Elec. Co., 874 F.3d 1083, 1093 (9th Cir. 2017) (alteration
`omitted) (quoting Novak, 795 F.3d at 1018). “Rather, a
`
`
`
`12
`
`SISLEY V. USDEA
`
`grievance too ‘generalized’ for standing purposes is one
`characterized by its ‘abstract and indefinite nature—for
`example, harm to the common concern for obedience to
`law.’” Id. (quoting Novak, 795 F.3d at 1018).
`
`The government argues that Petitioners lack Article III
`standing because they assert only a generalized grievance.
`Characterizing Petitioners’ challenge as based on an asserted
`interest in the Executive Branch following the law, the
`government argues that Petitioners lack standing because that
`interest is common to all who may wish to reschedule
`controlled substances. The government may be right that
`such an interest is too generalized to warrant Article III
`standing, but Petitioners do not assert only a generalized
`harm.
` Rather, they contend they suffer direct and
`particularized harms due to the misclassification of cannabis.
`Dr. Sisley and her associated institutions contend that the
`misclassification impedes their research efforts, and the
`veterans contend that it forecloses their access to medical
`treatment with cannabis through the Department of Veterans
`Affairs. The government also argues Petitioners’ claims rest
`“on the legal rights or interests of third parties.” While it is
`undoubtedly true that the interests of third parties would be
`affected by a rescheduling of cannabis, this fact does not
`diminish Petitioners’ direct and particularized interest in
`rescheduling. See Americans for Safe Access v. DEA,
`706 F.3d 438, 445–49 (D.C. Cir. 2013).
`
`We therefore conclude that Petitioners have Article III
`standing.
`
`
`
`SISLEY V. USDEA
`
`B. Failure to Exhaust
`
`13
`
`“The doctrine of exhaustion of administrative remedies is
`well established in the jurisprudence of administrative law.”
`Woodford v. Ngo, 548 U.S. 81, 88 (2006) (quoting McKart v.
`United States, 395 U.S. 185, 193 (1969)); see Myers v.
`Bethlehem Shipbuilding Corp., 303 U.S. 41, 50–51 (1938).
`“[P]roper exhaustion of administrative remedies . . . means
`using all steps that the agency holds out, and doing so
`properly (so that the agency addresses the issues on the
`merits).” Woodford, 548 U.S. at 90 (quotations and emphasis
`omitted). “As a general rule . . . courts should not topple over
`administrative decisions unless the administrative body not
`only has erred, but has erred against objection made at the
`time appropriate under its practice.” Id. (alteration adopted
`and emphasis omitted) (quoting United States v. L.A. Tucker
`Truck Lines, Inc., 344 U.S. 33, 37 (1952)).
`
`Where Congress has not clearly required exhaustion,
`courts may impose it as an act of “sound judicial discretion.”
`McCarthy v. Madigan, 503 U.S. 140, 144 (1992). Our
`discretion requires “appropriate deference to Congress’ power
`to prescribe the basic procedural scheme under which a claim
`may be heard in a federal court.” Id. Any “fashioning of
`exhaustion principles” must be made “in a manner consistent
`with congressional intent and any applicable statutory
`scheme.” Id.
`
`The CSA does not, in terms, require exhaustion of
`administrative remedies. However, we agree with the Second
`Circuit that the text and structure of the CSA “show[] that
`Congress sought to favor administrative decisionmaking” and
`that requiring exhaustion under the CSA “is consistent with
`
`
`
`14
`
`SISLEY V. USDEA
`
`congressional intent.” Washington v. Barr, 925 F.3d 109,
`116, 118 (2d Cir. 2019). As stated by the Second Circuit:
`
`The exhaustion requirement under the CSA is
`. . . prudential, not jurisdictional. It is not
`mandated by the statute. Rather, it is a
`judicially-created administrative rule, applied
`by courts in their discretion.
`
`Id. at 119.
`
`the Attorney General with
`tasks
`Section 811(a)
`scheduling, rescheduling, or removing from the schedules
`drugs or other substances by rulemaking. As we noted above,
`such proceedings “may be initiated by the Attorney General
`(1) on his own motion, (2) at the request of the [HHS]
`Secretary, or (3) on the petition of any interested party.”
`21 U.S.C. § 811(a) (emphasis added). Congress thus
`expressly authorized individuals to petition the DEA—not the
`courts directly—to schedule, reschedule, or remove a
`substance. The CSA prescribes steps for the Attorney
`General to follow before initiating proceedings, § 811(b), and
`details factors to consider in so doing, § 811(c). In § 877, the
`CSA provides for judicial review of final agency action, not
`judicial decisionmaking in the first instance. To require
`interested individuals to petition the DEA before seeking
`judicial review is consistent with—indeed almost demanded
`by—this carefully established statutory process. See United
`States v. Cal. Care Corp., 709 F.2d 1241, 1248–49 (9th Cir.
`1983) (requiring exhaustion where to do otherwise “would
`encourage the deliberate bypass of the administrative
`scheme”).
`
`
`
`SISLEY V. USDEA
`
`15
`
`In the case before us, Petitioners ask us either to conclude
`that their administrative remedies have been exhausted by
`Zyszkiewicz’s one-page petition or to excuse their failure to
`exhaust. The government has not argued to us that the DEA’s
`response to Zyszkiewicz’s petition was not a denial of the
`petition, or that its response was not final agency action
`within the meaning of the Administrative Procedure Act
`(“APA”). See 5 U.S.C. § 704. In light of the government’s
`failure to make such arguments, we are willing to assume for
`present purposes that the DEA’s response to Zyszkiewicz’s
`petition was a denial of that petition and was final agency
`action under the APA, even though the DEA characterized its
`action as only an “opportunity to address [Zyszkiewicz’s]
`concerns” rather than as a denial of the petition.
`
`Petitioners did not seek to join Zyszkiewicz’s one-page
`petition or seek to intervene with respect to his petition to the
`DEA. Zyszkiewicz advanced only one argument in his
`petition to the DEA. Petitioners ignore that argument;
`instead, they advance two different arguments. Petitioners
`were asked during oral argument before our court why they
`did not file their own petition with the DEA and then seek
`review if the DEA denied their petition. They responded that
`that process would take too long, even though Zyszkiewicz’s
`petition was filed in January 2020, and the DEA responded to
`that petition in April 2020. Oral Argument at 31:54–33:19,
`Sisley v. DEA, No. 20-71433 (9th Cir. June 10, 2021).
`
`Recognizing that administrative exhaustion under the
`CSA is judge-made law, “applied by courts in their
`discretion,” Washington, 925 F.3d at 119, we hold, under the
`circumstances of this case, that Petitioners have not exhausted
`
`
`
`16
`
`SISLEY V. USDEA
`
`their administrative remedies and have given no convincing
`reason to excuse their failure to exhaust. We are well aware
`that reclassification of cannabis is a matter of ongoing active
`debate. However, this is not an appropriate case in which to
`consider that issue.
`
`III. Conclusion
`
`Petitioners seek to bypass the normal administrative
`process by seeking review of the DEA’s response to
`Zyszkiewicz’s petition and then seeking to make arguments
`never advanced by Zyszkiewicz.
` Nothing prevents
`Petitioners from filing a petition of their own before the DEA,
`raising the arguments they seek to raise before us now.
`Because Petitioners have
`failed
`to exhaust
`their
`administrative remedies with the DEA, their petition for
`judicial review is
`
`DISMISSED.
`
`WATFORD, Circuit Judge, concurring:
`
`I agree that the petitioners in this case failed to exhaust
`their administrative remedies and therefore join the court’s
`opinion dismissing their petition for review. I write
`separately to note that, in an appropriate case, the Drug
`Enforcement Administration may well be obliged to initiate
`a reclassification proceeding for marijuana, given the strength
`of petitioners’ arguments that the agency has misinterpreted
`the controlling statute by concluding that marijuana “has no
`
`
`
`SISLEY V. USDEA
`
`17
`
`currently accepted medical use in treatment in the United
`States.” 21 U.S.C. § 812(b)(1)(B).
`
`COLLINS, Circuit Judge, concurring in part:
`
`I concur in Parts I, II(B), and III of the majority opinion,
`which provide fully sufficient grounds for dismissing the
`petition in this case. I do not join Part II(A), which concludes
`that Petitioners have Article III standing to challenge the
`denial of Zyszkiewicz’s handwritten petition to the U.S. Drug
`Enforcement Administration (“DEA”). I am skeptical that
`the particular injuries that Petitioners assert are “fairly
`traceable” to that decision of the DEA, see Lujan v.
`Defenders of Wildlife, 504 U.S. 555, 560 (1992) (simplified),
`but I do not think that it is necessary to decide the point.
`Because exhaustion of administrative remedies “does not
`entail any assumption by the court of substantive ‘law-
`declaring power,’” it raises the sort of threshold, non-merits
`issue that we may resolve first, without having to address
`subject matter jurisdiction. See Sinochem Int’l Co. v. Malay.
`Int’l Shipping Corp., 549 U.S. 422, 433 (2007) (citation
`omitted); see also id. at 431 (noting that “a federal court has
`leeway ‘to choose among threshold grounds for denying
`audience to a case on the merits’” (citation omitted)).1 And
`
`1 See also Sarei v. Rio Tinto, PLC, 550 F.3d 822, 824 & n.1 (9th Cir.
`2008) (en banc) (plurality) (concluding that, under Sinochem, it was
`appropriate to direct the district court to consider whether to require
`exhaustion of local remedies in a suit under the Alien Tort Statute,
`28 U.S.C. § 1350, despite the presence of unresolved jurisdictional
`issues); id. at 833–37 (Bea, J., concurring) (agreeing with the plurality’s
`remand to consider exhaustion, while differing as to the source of the
`exhaustion requirement); id. at 840 & n.1 (Kleinfeld, J., concurring)
`
`
`
`18
`
`SISLEY V. USDEA
`
`given that Petitioners’ failure to exhaust administrative
`remedies is dispositive here, we have no need to address
`Petitioners’ Article III standing, and I do not do so.2
`
`(agreeing that, under Sinochem, a remand to consider exhaustion was
`appropriate, despite jurisdictional issues); id. at 837–38 (Ikuta, J.,
`dissenting) (agreeing that, under Sinochem, “there is no mandatory
`sequencing of non-merits grounds for disposing of a case,” but concluding
`that, under the circumstances of that case, the jurisdictional issue should
`be resolved first and was dispositive); Valenzuela v. Silversmith, 699 F.3d
`1199, 1205 (10th Cir. 2012) (whether appellant “failed to exhaust tribal
`court remedies is . . . a threshold, nonmerits issue” that may be decided
`without resolving subject matter jurisdiction).
`
`2 I likewise express no view whatsoever on the merits of the claims.
`
`
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