DEA Asks Ninth Circuit to Nix Marijuana Legalization Case

On Monday, the U.S. Drug Enforcement Administration (DEA) responded to a lawsuit challenging its refusal to change marijuana’s status as a schedule I substance under the Controlled Substance Act (CSA). The agency chiefly claims that the Ninth Circuit lacks jurisdiction over the dispute because the petitioners did not themselves make the request to the DEA.

As previously reported, the petitioners, an Arizona-based research firm and several individuals, challenge a final decision rendered by the DEA denying the aforementioned petition to de-list marijuana. The petitioners argue that the DEA’s refusal was arbitrary and capricious, in violation of the Administrative Procedure Act (APA). They also argue that the law on which the DEA relied to list marijuana as a schedule I drug violated a constitutional Separation of Powers provision.

The DEA first explains that because two individuals, non-parties to the instant suit, filed the petition to delist marijuana earlier this year, the opportunity to seek judicial review of the DEA’s denial is theirs and theirs alone. The petitioners cannot seek review of a petition they did not file, and cannot assert third-party standing, the DEA contends.

In the same vein, the respondent argues that the petitioners have not exhausted their administrative remedies because they have not petitioned for rulemaking with the DEA. Next, should the court bypass its first two arguments, the DEA asserts that the petitioners’ claims fail on the merits.

The DEA claims that its denial was a proper, reasonable decision under a precedential doctrine known as Chevron deference. In addition, the agency avers that the petitioners’ constitutional argument is not substantiated. The agency claims that because its “denial of rulemaking refused to alter Congress’s placement of marijuana on schedule I, there is no way that DEA impermissible [sic] exercised Congress’s legislative power.”

The responsive filing also contains a statement of related cases explaining that one of the two individuals who asked the DEA to reschedule marijuana in January, has filed two separate lawsuits in federal courts in the District of Columbia seeking review of the DEA’s decision there. Relatedly, and according to Marijuana Moment, a federal law to legalize marijuana is moving closer to a full vote by the House of Representatives. The news outlet reported that it could happen as soon as Thursday, Dec. 3.

The petitioners are represented by Yetter Coleman LLP.