ASA in the News

By Jack Queen for Law360

Law360 (September 8, 2020, 9:08 PM EDT) -- A trio of drug reform groups have urged the U.S. Supreme Court to take up a former NFL player's bid to decriminalize marijuana, saying a federal appeals court wrongly swept the lawsuit to a doomed administrative process within the Drug Enforcement Administration.

In an amicus brief Friday, Americans for Safe Access said the Second Circuit upended the principle that only courts can interpret constitutional claims by ruling that a group of patients challenging cannabis' status as a Schedule I controlled substance must first petition the DEA for rescheduling.

The group argued this "radical new approach" would relegate the patients, led by Super Bowl champion Marvin Washington, to a "long, frustrating, ill-fated and futile process."

"One rescheduling petition for cannabis took 22 years to resolve, with the petitioners bouncing back and forth between agency and judicial fora," it said. "Petitioners here risk the same fate of agency dilatoriness."

The DEA also lacks the capacity to resolve the petitioners' claims that depriving them of medical cannabis infringes their constitutional rights, according to the brief. The agency's "ossified" position on the dangers of cannabis further shows that an administrative appeal would be pointless, the group argued.

In another amicus brief Friday, the Minority Cannabis Business Association and Minorities for Medical Marijuana Inc. joined the petitioners' argument that the DEA's classification is so irrational it violates the Constitution. But they also said the designation must fall because it was "based on an invidious discriminatory purpose."

The groups cited evidence gleaned from the Nixon tapes, which they said showed the "driving force" behind the Controlled Substances Act and marijuana's listing on Schedule I — reserved for dangerous drugs with no medical purpose — was to "suppress and discriminate" against Black people and leftists.

The brief also cites a 2017 affidavit by political operative and former Nixon administration official Roger Stone, who said criminalization of cannabis "represents a regrettable and unfortunate period in American history which, I trust, contemporary society will, at some point, endeavor to correct — perhaps now."

The groups said the DEA is incapable of evenhandedness in considering a rescheduling petition, arguing that "anti-cannabis bias is pervasive throughout the administrative body." The brief cites reports that the agency's former chief, Philip Rosenberg, said medical cannabis was a "joke" in 2012.

Attorneys for the Minority Cannabis Business Association and Minorities for Medical Marijuana, Joseph E. Collins and William Bogot of Fox Rothschild LLP, told Law360 in a joint statement Tuesday that their clients are hopeful the justices will take up the case.

"The MCBA and MFMM are hopeful that the court will grant review and address the discriminatory intent underlying the classification of cannabis as a Schedule I drug under the Controlled Substances Act: to enable the Nixon administration to target and prosecute people of color and anti-war activists," they said.

Washington and his fellow petitioners, including medical marijuana activist and epilepsy patient Alexis Bortell, asked the Supreme Court to take up the case in July. They argued that prohibition of marijuana unconstitutionally blocks their access to lifesaving medication and flies in the face of the government's own admissions that the drug is safe.

The group framed its suit as a larger challenge to the "incomprehensible hodgepodge of laws, rules and regulations" that surround the billion-dollar cannabis industry due to inconsistencies in state and federal law.

The case, however, largely hinges on whether the patients must first try and fail to convince the DEA to reclassify cannabis. The Second Circuit determined they must, tossing the appeal in April after the patients declined to go that route.

The group originally sued the DEA in 2017, claiming the agency erroneously placed marijuana on Schedule I. A district court tossed the case the next year, finding the patients hadn't exhausted their administrative remedies with the DEA.

In their petition, the patients said that finding was flawed because the DEA is only capable of moving marijuana to Schedule II, a move that could actually harm patient access by subjecting cannabis to stricter regulation. The patients want marijuana out of the Controlled Substances Act entirely, something they said the DEA is powerless to do.

"It is well established that aggrieved parties cannot be required to submit to an administrative review process by an agency that lacks the power to grant the relief requested," they said.

Counsel for the parties did not immediately respond to requests for comment Tuesday. Americans for Safe Access is represented by Andrew Kim, Brett M. Schuman, Jennifer B. Fisher and Nicholas M. Costanza of Goodwin Procter LLP.

The Minority Cannabis Business Association and Minorities for Medical Marijuana are represented by William Bogot, Joseph Collins and Alexandra Sobol of Fox Rothschild LLP.

The DEA and federal government are represented by Samuel Dolinger and Benjamin H. Torrance of the U.S. Attorney's Office for the Southern District of New York.

The case is Washington v. Barr, case number 20-148, in the U.S. Supreme Court.