Last year the Southern District Court of New York threw out a lawsuit challenging the constitutionality of the Schedule I classification of cannabis on the grounds that the plaintiffs had not exhausted the administrative remedies – a petition process through the Drug Enforcement Agency – before filing their suit. However, yesterday a federal appeals court decided that, while they agree with the lower court’s assessment, they will keep the case open so that it can take action against the Drug Enforcement Administration if it fails to change the legal status of cannabis in a reasonable amount of time, Marijuana Moment reports.
“It is conceivable that, in response to a petition from Plaintiffs along the lines advanced before us now, the DEA would reschedule marijuana, rendering the current case moot. And if the DEA did not, the administrative process would generate a comprehensive record that would aid in eventual judicial review.” – U.S. Circuit Court Judge Guido Calabresi, in the majority opinion for the U.S. Court of Appeals for the Second Circuit
In the opinion, Calabresi said the panel was “troubled” by DEA’s “history of dilatory proceedings.”
“Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch,” the opinion says.
The judges called the case “unusual” because the plaintiffs – who are predominately medical cannabis patients – “plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to their health.”
“Taking the facts as alleged, and, accordingly, taking the supposed benefits some Plaintiffs have experienced from marijuana as true as well, we—like the District Court below—are struck by the transformative effects this drug has assertedly had on some Plaintiffs’ lives,” Calabresi said. “As a result, we are troubled by the uncertainty under which Plaintiffs must currently live.”
Michael Hiller of Hiller, PC, the lead counsel for the plaintiffs, said via Twitter that it’s “the first time in history that a lawsuit challenging the constitutionality of the [Controlled Substances Act] has survived dismissal.”
Joseph A. Bondy, an attorney who has worked pro bono on the case, told Marijuana Moment that he and his team will be working to draft a petition for DEA to take action on cannabis scheduling and, while the court didn’t give DEA a timeline for acting, Bondy said 180 days seemed reasonable. Previously, petitions of similar nature have taken an average of nine years to go through the process, and none have been successful.
If DEA fails to comply, Bondy indicated the court could take action including “compelling them to act” or issuing a writ of mandamus – which would sanction the agency.
The court wrote that while it does not “intend to retain jurisdiction indefinitely,” the plaintiffs may return to the court for relief.
“To be clear, we repeat that this case remains in our purview only to the extent that the agency does not respond to Plaintiffs with adequate, if deliberate, speed,” the opinion states. “In other words, we retain jurisdiction exclusively for the purpose of inducing the agency to act promptly.”
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