Federal court dismisses case to move marijuana, but glimmers of hope

As first reported in Marijuana Moment, on August 30, 2021, the U.S. Court of Appeals for the Ninth District dismissed a petition by a team of cannabis researchers, scientists, and military veterans to require the Drug Enforcement Administration (DEA) to reassess marijuana status as List I substance under the Controlled Substances Act (CSA). The Ninth District noted that the petitioners had not exhausted administrative remedies to the DEA and must exhaust those remedies before seeking legal redress.

The case before the Ninth Ward, Sidley v DEA, revolved around a unilateral debt rescheduling motion filed by Stephen Zyskiewicz, who was not involved in the case. This is how the Ninth Circuit Panel summarized the decision (thanks to Marijuana Moment for the courageous embedding of the source documents):

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The Panel found that the petitioners had failed to exhaust their administrative remedies with the DEA. Although the CSA does not prescribe 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 decisions that required exhaustion under the CSA. The petitioners did not attempt to join Zyszkiewicz’s unilateral petition or intervene in relation to his petition to the DEA.

Furthermore, the petitioners did not raise the issue raised by Zyszkiewicz in his petition to the DEA, but instead made two different arguments. The Panel concluded that, in the circumstances of this case, the petitioners had not exhausted their administrative remedies and had given no convincing reasons to excuse their under-treatment.

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Basically, the Ninth Ward here is saying that there is an appropriate channel through which to challenge the DEA on a rescheduling, and the petitioners in this case did not follow that process. The court refused to intervene and therefore dismissed the lawsuit.

While this may seem like another blow to the chance of federal cannabis legalization in the near future, in this case there was at least one ray of hope.

In a concurring opinion, Judge Paul Watford noted that the petitioners had persuasively argued that marijuana did not deserve to be included in Appendix I of the CSA. Appendix I is reserved for substances that currently have no recognized medical use in treatment in the United States and includes marijuana, heroin, and meth. Watford wrote that “in an appropriate case, the Drug Enforcement Administration may be required to implement a reclassification process of marijuana, given the petitioners ‘strong arguments that the agency misinterpreted the Control Act by concluding that marijuana’ currently has no recognized medicinal ‘use in treatment in the United States.’ “

Daniel Shortt is a Seattle, Washington-based corporate and regulatory attorney who works extensively with entrepreneurs in the cannabis industry. You can reach him at info @gl-lg.com or (206) 430-1336.

This article originally appeared in the Green Light Law Group and was republished with permission.