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9th Circuit rejects bid to make feds rethink stance on marijuana

Despite complaints that its classification of marijuana impedes research and denies treatment to veterans, the 9th Circuit Court of Appeals on Monday refused to make the federal government reconsider its 49-year-old position that cannabis is a dangerous drug with no accepted medical use.

Dr. Suzanne Sisley, an Arizona-based medical marijuana researcher, and three veterans who claim to suffer ongoing harm from cannabis' status as a Schedule I drug filed a petition with the 9th Circuit in May 2020. They asked the appeals court to force the U.S. Drug Enforcement Administration (DEA) to rethink its decades-old stance on marijuana. The petitioners cited research Sisley has conducted using pot to treat veterans for post-traumatic stress disorder.

In arguments before a three-judge 9th Circuit panel in June, Sisley's attorney called the DEA's position "a relic of a bygone era" at a time when medical marijuana has been legalized in 36 states.

In a 16-page opinion Monday, a three-judge panel rejected the petition on technical grounds, finding Sisley and her co-petitioners failed to exhaust other avenues of relief that they could have pursued before coming to court.

"We are well aware that reclassification of cannabis is a matter of ongoing active debate," U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, wrote for the panel. "However, this is not an appropriate case in which to consider that issue."

Sisley and her co-petitioners had sought review of the DEA's April 2020 denial of a one-page, handwritten petition submitted by Stephen Zyszkiewicz, a California state prisoner, and Jeramy Bowers, a medical marijuana patient. Zyszkiewicz challenged the denial in a separate lawsuit in the District of Columbia. A federal judge dismissed that suit in June 2020, and the D.C. Circuit affirmed the dismissal this past January.

In the case before the 9th Circuit, government lawyers insisted that because Sisley and her co-petitioners had no involvement in Zyszkiewicz's petition, they could not establish standing to challenge the petition denial in federal court. A majority of the three-judge 9th Circuit panel rejected that argument Monday.

Fletcher and his colleague U.S. Circuit Judge Paul Watford, a Barack Obama appointee, found the petitioners have standing to challenge the DEA's decision because they adequately specified "direct and particularized harms" suffered as a result of the agency's action.

Sisley argued the designation of cannabis as Schedule 1 drug, the most restricted category, impedes her research on the drug's medical benefits. Her veteran co-petitioners said it also prevents them from obtaining cannabis as a covered medical treatment through the Department of Veterans Affairs.

The government contended that Sisley and her co-petitioners were impermissibly trying to assert the rights of absent third parties — namely the original petition authors Zyszkiewicz and Bowers — but the panel's majority found that argument unavailing.

"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," Fletcher wrote.

In a partly concurring opinion, U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, disagreed with his colleagues on the issue of standing. While he agreed the petitioners failed to exhaust administrative remedies, Collins said he would have rendered no finding on their standing to challenge the DEA's decision. Collins wrote that he is "skeptical" that the harms Sisley and her co-petitioners claim to have suffered were "fairly traceable" to the DEA's denial of Zyszkiewicz's petition.

Sisley and her co-petitioners had argued that the law does not require them to exhaust administrative remedies. They cited the U.S. Supreme Court's 1993 decision in Darby v. Cisneros, which established that exhaustion of such remedies is not mandatory unless Congress specifically writes those requirements into the statute.

But the panel found other reasons supported imposing those requirements. The panel adopted the same logic the Second Circuit used in its 2019 opinion, Washington v. Barr, which concluded that Congress intended for drug scheduling decisions to go through an administrative process, even though that requirement wasn't specifically written in the Controlled Substances Act of 1970.

"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 congressional intent,'" Fletcher wrote, quoting passages from the Second Circuit's decision in Washington.

In a concurring opinion, Judge Watford said that while he agrees the petitioners in this case should have pursued other remedies before seeking judicial review, he suggested the DEA's position on cannabis may be on shaky ground the next time a truly ripe challenge comes before the court.

"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 currently accepted medical use in treatment in the United States," Watford wrote.

Michael Zorn, an attorney for Sisley and her co-petitioners, declined to comment on the 9th Circuit's decision Monday, but he wrote in an email that his clients were considering their next steps.

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Representatives of the Justice Department and DEA did not immediately return emails requesting comment Monday.

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In a concurring opinion, Judge Watford said that while he agrees the petitioners in this case should have pursued other remedies before seeking judicial review, he suggested the DEA’s position on cannabis may be on shaky ground the next time a truly ripe challenge comes before the court.