The Fight Continues: An Update from the Second Circuit

June 06, 2019 | Sean Khalepari

In July 2017, four medical cannabis patients joined other advocates in filing a lawsuit against the federal government in the U.S. District Court for the Second District of New York. The plaintiffs in the case (originally Washington v. Sessions, now Washington v. Barr) sought a declaration that the placement of cannabis in Schedule I of the Controlled Substances Act was unconstitutional because it violates the Due Process Clause of the Fifth Amendment, protections guaranteed by the First Amendment, and the fundamental right to travel.

The judge expressed sympathy to the plaintiffs and pointedly noted that his dismissal of the case was not a ruling on the merits of their claims regarding the medical efficacy of cannabis, but he upheld the constitutionality of cannabis’ scheduling status and ruled that the plaintiffs were required to exhaust administrative options, including petitioning the U.S. Drug Enforcement Administration (DEA) to reschedule cannabis, before filing suit. The plaintiffs appealed his decision.

On May 30, 2019, the U.S. Court of Appeals for the Second Circuit issued their ruling, which could have important implications for medical cannabis patients. In a 2-1 decision, the court concurred with the District Court judge’s decision that the plaintiffs should have exhausted administrative remedies before suing but determined that this situation was unique given the life-or-death stakes for some of the plaintiffs and the troubling fact that the average DEA petition review process takes nine years - if the DEA even agrees to undertake the process, which is not guaranteed. Therefore, instead of dismissing the case, the court has given the plaintiffs 180 days to file a petition and will be ensuring that the DEA reviews it promptly. In the majority opinion, Judge Guido Calabresi wrote “[W]e are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings. Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.”

Put plainly, the Second Circuit does not look kindly upon the DEA’s practice of foot-dragging when it comes to acting on rescheduling petitions and is prepared to take matters into its own hands if the DEA does not demonstrate to the court’s satisfaction that it is moving appropriately quickly on the petition to be submitted by the plaintiffs. The judges in the majority noted that “under the unusual health-related circumstances of this case, what has counted as appropriate speed in the past may not count as appropriate speed here” and that the plaintiffs “should not be required to live indefinitely with uncertainty about their access to allegedly life-saving medication or live in fear that pursuing such medical treatment may subject them or their loved ones to devastating consequences.”

If the DEA doesn’t act on the forthcoming petition, or doesn’t do so quickly enough to satisfy the judges, the court has options for resolution, including compelling the administration to act through a writ of mandamus or exempting the plaintiffs from first seeking administrative relief and hearing the case on its merits. The court did not set a deadline by which the DEA must respond to the petition, but the plaintiffs can turn to the court for relief if they seek administrative review and the DEA “fails to act with alacrity.” Additionally, if the DEA were to conduct the review in a timely manner but decline to reschedule cannabis as a result, the administrative process “would generate a comprehensive record that would aid in eventual judicial review.”

While it cannot be taken for granted that the court would side with the plaintiffs were it to hear the case on its merits, the judges in the majority wrote “Taking the facts as alleged, and, accordingly, taking the supposed benefits some Plaintiffs have experienced from marijuana as true as well, we - like the District Court below - are struck by the transformative effects this drug has assertedly had on some Plaintiffs’ lives. As a result, we are troubled by the uncertainty under which Plaintiffs must currently live.” Encouragingly, the judges noted that the growing and evolving body of knowledge around cannabis calls into question whether the existing regulatory regime continues to advance the goals of the Controlled Substances Act, adding that “It is possible that the current law, though rational once, is now heading towards irrationality; it may even conceivably be that it has gotten there already.”



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