If the DEA Does Not Quickly Reexamine Marijuana’s Classification Under the Controlled Substance Act, the Second Circuit Might

Robert Kline

McDermott Will & Emery

“Plaintiffs claim that marijuana has extended their lives, cured seizures and made pain manageable. If true, these are no small things.” So wrote Judge Calabresi on behalf of the United States Court of Appeals for the Second Circuit (Second Circuit) in Washington, et al. v. Barr, et al.

In Washington, a coalition of plaintiffs launched a broad attack on marijuana’s status as a Schedule I drug under the Controlled Substances Act (CSA). The plaintiffs include the parents of infants Alexis Bortell and Jagger Cotte. According to the plaintiffs’ allegations, Alexis Bortell suffers from chronic, intractable seizures, and Jagger Cotte suffers from Leigh’s disease, a progressive neurometabolic disorder characterized by necrotizing (dead or dying tissue) lesions on the brain. After exhausting traditional treatment options, the children found relief with medical marijuana.

The plaintiffs also include Jose Belen, an Iraq war veteran who suffers from post-traumatic stress disorder. He pursued conventional therapies without success and then tried medical marijuana, which allows him to manage his symptoms, including suicidal ideations. However, because marijuana remains a Schedule I drug under the CSA, Mr. Belen cannot take full advantage of his veteran’s benefits, and the children cannot take their medicine onto federal land nor into states where marijuana is illegal.

The plaintiffs argued that new facts concerning the acceptance of medical marijuana treatment and the federal government’s involvement in medical marijuana research require a reexamination of marijuana’s status under the CSA. The defendants, including United States Attorney General Bill Barr and Acting Administrator for the Drug Enforcement Administration (DEA), Uttam Dhillon, moved to dismiss the plaintiffs’ complaint. The trial court granted the defendants’ motion and dismissed the plaintiffs’ complaint with prejudice, finding that the plaintiffs had failed to exhaust their administrative remedies before they sought relief from the court.

The exhaustion doctrine holds that federal courts should not resolve a dispute if the plaintiff could potentially get relief from a proceeding before an administrative agency. Based on that doctrine, the trial court concluded that the plaintiffs, before they had a right to go to court, had to ask the DEA to reexamine marijuana’s status under the CSA. The plaintiffs appealed the trial court’s decision.

On appeal, the Second Circuit largely agreed with the trial court. Although the CSA does not expressly require the exhaustion of administrative remedies, the Second Circuit concluded that the plaintiffs had to exhaust administrative remedies because such a requirement is consistent with congressional intent. According to the Second Circuit, “[t]he text of the CSA shows that Congress sought to favor administrative decision making.” For example, 21 U.S.C. § 811(a) directs the Attorney General to categorize drugs under the Act by rules “made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed” by the Administrative Procedures Act, 5 U.S.C. § 551 et seq. The Second Circuit also looked to 21 U.S.C. § 811(b), which establishes the Attorney General’s duty to defer to the Secretary of Health and Human Services on certain medical and scientific matters. After considering those provisions of the CSA, the Second Circuit concluded that it would undermine the text and structure of the CSA if it did not require exhaustion “in the ordinary case.”

The exhaustion requirement, however, is not absolute. For example, courts can waive the requirement if a plaintiff shows that it would be futile for her to attempt to exhaust her administrative remedies. In this particular case, the plaintiffs did not allege facts that show it would have been futile for them to exhaust their administrative remedies. They did not allege, for example, facts sufficient to show that the relevant decision maker—the Secretary of Health and Human Services—is biased against them, and they did not plausibly allege that the administrative process would be incapable of granting adequate relief; indeed, the DEA has the power to reschedule or even deschedule marijuana, so the DEA could give plaintiffs the exact relief they seek.

Importantly, courts can waive the exhaustion requirement when pursuing agency review would subject plaintiffs to “undue prejudice.” For example, if a plaintiff alleges facts that demonstrate “an unreasonable or indefinite timeframe for administrative action,” the court may allow the plaintiff to proceed in court before completely exhausting administrative remedies. In this case, the Second Circuit found that “[d]espite the apparently dire situation of some of the Plaintiffs,” they did not yet meet the undue prejudice requirement, primarily because they have not been prevented from obtaining the medical marijuana that they require. The Second Circuit therefore concluded that under the present set of facts, the plaintiffs must exhaust their administrative remedies.

In an unusual move, however, the Second Circuit did not completely shut the doors of the court on the plaintiffs. In response to information that shows the average delay in deciding petitions to reclassify drugs under the CSA is approximately nine years, the Second Circuit found that “[s]uch long delays cast doubt on the appropriateness of requiring exhaustion.” The Second Circuit therefore retained jurisdiction of the case based on its concern that the DEA might not act quickly enough to provide the plaintiffs with relief.

In six months, the Second Circuit will affirm the District Court’s judgment dismissing the case, unless the plaintiffs seek DEA review within that time and inform the Second Circuit that they have done so. On the other hand, if the plaintiffs seek agency review within six months, and “the agency fails to act with alacrity,” the Plaintiffs may return directly to the Second Circuit. “[U]nder the unusual health-related circumstances of this case, what has counted as appropriate speed in the past may not count as appropriate speed here.” The implication is clear: the Second Circuit retained jurisdiction to make the DEA act quickly.