Scottsdale Research Vs DEA Ninth Circuit Court of Appeals Motion To Dismiss
Scottsdale Research Vs DEA Ninth Circuit Court of Appeals Motion To Dismiss
Petitioners,
v. No. 20-71433
Respondents.
action seeking judicial review of that decision. Because these petitioners have not
BACKGROUND
I. Legal Framework
controlled substances. The Act divides controlled substances into five schedules,
based on their potential for abuse, medical uses, and risk of physical or psychological
accepted medical use and a high risk for abuse, while schedule II-V substances have
accepted medical uses and decreasing risk of abuse and dependence. Id. Congress
initially designated scores of substances under the schedules, id. § 812(c), and
rulemaking, id. § 811(a). The Attorney General, in turn, delegated this authority to the
No. 91-513, title II § 202(c) (schedule I(c)), 84 Stat. 1242, 1249 (1970). Schedule I
substances have “a high potential for abuse,” have “no currently accepted medical use
in treatment in the United States,” and lack “accepted safety for use * * * under
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57 Fed. Reg. 10499, 10506 (Mar. 26, 1992). Under that rulemaking, the DEA
Administrator has required all five factors to be satisfied in order for a substance to
“be deemed to have a currently accepted medical use.” Americans for Safe Access v.
proceedings “may be initiated” by the Administrator “(1) on his own motion, (2) at
the request of the Secretary [of Health and Human Services], or (3) on the petition of
any interested party.” Id. § 811(a). “[B]efore initiating [rulemaking] proceedings,” the
Administrator gathers all “necessary data” and obtains a written “scientific and
medical evaluation” and a recommendation from the Secretary of Health and Human
judicial review in the D.C. Circuit or the circuit in which their principal place of
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business is located. 21 U.S.C. § 877. Thus, a person who petitions the DEA
denies that petition. Americans for Safe Access, 706 F.3d at 442.
handwritten petition “to remove or reschedule cannabis (marijuana) in all its forms”
under “21 U.S.C.[] 811, 812.” Dkt. 1-6, at 23.1 Zyszkiewicz and Bowers stated that
“[h]alf the states allow for medical use and the FDA allows CBD and THC
argument for rescheduling marijuana, and provided no medical evidence regarding its
use. DEA issued a letter declining to institute rulemaking in April 2020. Dkt. 1-6, at
25-28.
petition in this Court seeking “review of [DEA’s] final determination denying Stephen
several grounds for reversal, challenging (1) DEA’s construction of 21 U.S.C. § 812
and its use of a five-factor test to determine whether a substance has a currently
All citations to docket entries refer to docket entries in this case, Sisley v. U.S.
1
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accepted medical use, Dkt. 1-6, at 14-17; (2) DEA’s construction of 21 U.S.C. § 811,
and its determination that drugs without a currently accepted medical use are
governed by schedule I, Dkt. 1-6, at 17-18; (3) DEA’s conclusion that there is a lack
of accepted safety for use of marijuana under medical supervision, id. at 18-19; and (4)
DEA’s determination that marijuana does not qualify for rescheduling to schedules
DISCUSSION
exhausted their administrative remedies. Any of the petitioners may ask DEA to
did. In doing so, petitioners may raise the arguments they have raised to this Court,
and DEA would be able to consider those arguments in the first instance. Petitioners
may also submit any evidence regarding marijuana’s efficacy, safety, and use in
medical treatment, which DEA and HHS can evaluate. Id. § 811(b). But petitioners
“have made no attempt to exhaust that process” and “until they do so, they are not
entitled to the relief they seek in this lawsuit.” Agua Caliente Tribe of Cupeño Indians of
Pala Reservation v. Sweeney, 932 F.3d 1207, 1216, 1219 (9th Cir. 2019).
seeking judicial review “is well established in the jurisprudence of administrative law.”
Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). Administrative exhaustion “serves two
main purposes.” Id. at 89. First, by requiring plaintiffs to first present their claims to
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the agency, exhaustion provides agencies “an opportunity to correct its own mistakes
with respect to the programs it administers before it is haled into federal court, and it
more quickly and economically in proceedings before an agency.” Id. In this way, the
agency proceedings may grant plaintiffs the relief they seek, or otherwise “convince
the losing party not to pursue the matter in federal court.” Id. And even if plaintiffs
produce a useful record for subsequent judicial consideration.” Id. Thus, the “courts
should not topple over administrative decisions unless the administrative body not
only has erred, but has erred against objection made at the time appropriate under its
practice.” United Sates v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952); Woodford,
Consistent with these principles, this Court has held that plaintiffs must
exhaust the administrative remedies available before seeking judicial review. Thus, an
Indian tribe seeking federal recognition must first exhaust the Department of the
review. Agua Caliente Tribe, 932 F.3d at 1216-19. Similarly, aliens who are in removal
proceedings and seek an adjustment of status must first seek that relief “during their
pending removal proceedings,” and may not seek judicial review “[u]ntil they have
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Immigration Services, 627 F.3d 1313, 1316-17 (9th Cir. 2010). And parents who seek
damages because they believe their child should have received a different placement
under the Individuals with Disabilities Education Act may not pursue that action if
they “failed to exhaust” their administrative remedies. Paul G. by and through Steve G. v.
Monterey Peninsula Unified School Dist., 933 F.3d 1096, 1098 (9th Cir. 2019); id. at 1102.
not yet exhausted. Petitioners may petition the DEA Administrator to remove or
they may present evidence related to the health effects, medical use, safety, and
efficacy of marijuana as a treatment for disease or illness. See Americans for Safe Access,
706 F.3d at 450 (describing petition for rescheduling that cited “more than two
Admin., 930 F.2d 936, 938-39 (D.C. Cir. 1991). But petitioners have not yet sought
that relief or advanced those arguments. If they were to do so, DEA would be able to
consider any such claims and issue a decision that adequately addresses them and
(Aug. 12, 2016) (79-page decision based on analysis from DEA, HHS, and FDA to
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In similar circumstances, the Second Circuit has held that plaintiffs must first
exhaust their administrative remedies under the Controlled Substances Act before
seeking judicial review. Washington v. Barr, 925 F.3d 109, 115-18 (2d Cir. 2019). The
schedule I substance, “but did not first bring this challenge to” the DEA, which “has
provisions provided by 21 U.S.C. § 811, the court held that “[r]equiring would-be
plaintiffs to exhaust that process before turning to the courts is consonant with”
Congress’s purpose in passing the Controlled Substances Act. Id. at 116. That
rescheduling process could potentially obviate any need for judicial review, because
would aid in eventual judicial review.” Id. Accordingly, the Second Circuit held that
the plaintiffs must first exhaust their administrative remedies in a DEA rescheduling
2
The Washington court retained jurisdiction over the case while permitting the
plaintiffs to petition DEA to reschedule marijuana. 925 F.3d at 122. For the reasons
Judge Jacobs explained in his dissent, the correct course would have been to affirm
the district court’s dismissal of the suit for failure to exhaust administrative remedies.
Id. at 122-24 (Jacobs, J., dissenting). As this Court has explained, a plaintiff “may not
maintain [an] action after he failed to” exhaust administrative remedies. Paul G., 933
F.3d at 1102. The Second Circuit did ultimately affirm dismissal of the case when
plaintiffs refused to exhaust their administrative remedies. Order, Washington v. Barr,
No. 18-859 (2d Cir. Feb. 3, 2020) (affirming district court’s judgment and dismissing
case with prejudice).
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The same reasoning applies with full force here. Petitioners must first petition
DEA to consider rescheduling marijuana, where they may advance their arguments
concerning statutory interpretation (Dkt. 1-6, at 14-18), the safety of marijuana for
medical use (id. at 18-19), and DEA’s ability to place marijuana in schedules III, IV, or
V (id. at 19-20). These arguments were not presented in the one-page rescheduling
petition filed by Zyskiewicz and Bowers (see id. at 23), and the DEA Administrator has
not yet had an opportunity to consider them. As this Court has explained, the
has had an opportunity to rule on a claim before a plaintiff goes to court.” Paul G.,
933 F.3d at 1102 (affirming dismissal of complaint). That is because “a federal court
generally goes astray if it decides a question that has been delegated to an agency if
that agency has not first had a chance to address that question.” Smith v. Berryhill, 139
S. Ct. 1765, 1779 (2019). Accordingly, the Court should not address claims “where
the agency’s final decisionmaker has not had a chance to address the merits at all.” Id.
Allowing petitioners to bypass DEA and seek judicial intervention on their claims in
the first instance would “undermine the text and structure of the [Controlled
evaluate petitioners’ claims and their scientific evidence, and determine whether it
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DEA’s decision after this process is complete, they may seek judicial review under 21
U.S.C. § 877. But they may not do so now—before they have even attempted to
claims.
CONCLUSION
Respectfully submitted,
MARK B. STERN
/s/ Daniel Aguilar
DANIEL AGUILAR
(202) 514-5432
Attorneys, Appellate Staff
Civil Division, Room 7266
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
July 2020
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CERTIFICATE OF COMPLIANCE
I hereby certify that this motion complies with the requirements of Fed. R.
App. P. 27(d)(1)(E), 32(a)(5), and 32(a)(6) because it has been prepared in 14-point
Garamond, a proportionally spaced font. I further certify that this motion complies
with the page limitations of Circuit Rule 27-1(1)(d) because it is less than 20 pages.