Rescheduling Cannabis May Still Happen After The DEA Runs Into Issues In Court
A petition in regards to the DEA reconsidering rescheduling cannabis has been dismissed by a federal appeals court. If successful this would have helped push the DEA to reconsider marijuana’s scheduling under the Controlled Substances Act. Yet during court one judge spoke up on the matter saying that the DEA may have found itself in a submissive position. This correlates with the agency having to reschedule cannabis based on a misunderstanding of the medical benefit of cannabis.
Recently a ruling has been filed by the U.S. Court of Appeals for the Ninth Circuit. What they came to understand is scientists and military veterans looking to the rescheduling review had failed. This happened because there was a failure to deplete administrative remedies. So, therefore, this led to the case being dropped without considering all the benefits and advantages.
Cannabis researcher Sue Sisley, as well as Lorenzo Sullivan and Gary Hess back in 2020, filed a lawsuit. To which they underwent series of verbal arguments in June. This debate focused on the DEA’s 2020 non-approval of a marijuana rescheduling petition. In its acknowledgment, the DEA argued that cannabis has no true medical usefulness.
Attorneys for the group appealed that decision, urging the court to order DEA to launch a formal rulemaking system. This process would involve expert testimony and public comment. They stated that the DEA’s case on the dismissal of past rescheduling petitions has been more than unconstitutional. As well it has stopped crucial research being done in regards to marijuana’s medical potential.
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However, in the new ruling, the three-judge panel held that “petitioners failed to exhaust their administrative remedies with the DEA.” And while “the CSA does not, in terms, require exhaustion of administrative remedies, the panel agreed with [an earlier court ruling] that the text and structure of the CSA show that Congress sought to favor administrative decision-making that required exhaustion under the CSA,” the opinion says.
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“Petitioners seek to bypass the normal administrative process by seeking review of the DEA’s response to [Stephen 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.”
The Ninth Circuit judges did deny a DEA argument that the plaintiffs lacked standing. Which was going off the fact that they were appealing a rescheduling request. This particular request initially was filed separately. The person who made the filling was someone who wasn’t party to the latest suit and only suffered a “generalized grievance,” however.
“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,” the panel found.
Pushing into the future, lawyers for the plaintiffs have plenty of alternatives to consider. That includes requesting for a panel rehearing or even an appeal to the U.S. Supreme Court. The petitioners originally filed their lawsuit, Sisley v. DEA, against the federal agency in May of 2021. This contended that DEA’s argument for keeping a Schedule I status for cannabis. Meaning it would violate the Constitution on numerous grounds. The agency tried to dismiss the case, but the Ninth Circuit rejected that request in August.
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Daniel Aguilar, who is a lawyer for the Justice Department represented the federal government at the verbal discussion in June. Mr. Aguilar affirmed that the court should drop the case. As well as allow the group to file its own individual DEA rescheduling petition. Judges Paul Watford agreed with the latest ruling. However, he did distinctly state a concurring opinion.
He said 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 currently accepted medical use in treatment in the United States.’”
Sisley, the lawsuit’s lead plaintiff is a DEA-licensed researcher. With a particular interest in examining the therapeutic possibilities of veterans using marijuana. She’s attempted to become a federally authorized marijuana manufacturer. This was done so that her facility can provide higher quality products for investigations. SRI has already met the feds in court due to earlier marijuana decisions, with results to show for it.
The institute famously forced DEA to publish an update on the status of their application processing. Furthermore, they then got the Justice Department to hand over a “secret” memo. This memo was one that the DEA allegedly used to excuse a setback in deciding those proposals. In May, Sisley and SRI obtained preliminary approval from DEA. This approval is to be one of the first new federally-authorized cultivators of cannabis for research.
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