(CN) – A California woman who was evicted from federally subsidized housing for using medical cannabis saw her legal challenge dismissed Thursday, with a judge finding she must first go through the difficult task of petitioning the Drug Enforcement Administration to lift restrictions on the drug.
Emma Nation and her teenage daughter was evicted from her subsidized housing development in July 2018 after using medical cannabis in edible form. Nation sued the federal government, challenging the U.S. Department of Housing and Urban Development’s zero-tolerance policy on the use of controlled substances, including medical cannabis.
Nation brought her lawsuit on the heels of the Food and Drug Administration’s approval of a cannabis-derived medication in June 2018.
In her initial complaint, Nation said a maintenance worker entered her bedroom without permission and found a small bag of medical cannabis, which was reported to the local housing authority that supplies Nation’s rent subsidy. She was then evicted from her home in Arcata, located in the heart of Northern California’s famed “Emerald Triangle” marijuana-growing zone.
Despite medical and recreational cannabis use being legal in California, cannabis remains a Schedule 1 drug under the federal Controlled Substances Act – meaning that in the eyes of the feds, there is no accepted medical use.
Nation’s challenge noted there is now an accepted medical use due to the FDA’s approval of Epidiolex, a cannabis-based treatment for epilepsy. Epidiolex is now available by prescription in the United States.
But on Thursday, U.S. District Judge Haywood Gilliam dismissed Nation’s lawsuit. Gilliam found Nation has not exhausted all her administrative claims, namely petitioning the DEA under the Controlled Substances Act.
While Nation may appeal to the courts if the DEA declines her petition, Gilliam said at this point the courts lack jurisdiction because her legal theories are squarely within the Controlled Substances Act’s exhaustion requirement.
Gilliam also rejected Nation’s 10th Amendment claim that federal laws on cannabis amount to unconstitutional commandeering of states, since the U.S. Supreme Court has upheld the Controlled Substances Act’s reach.
The judge dismissed Nation’s lawsuit with prejudice, finding any effort to amend would be futile.
Nation’s attorney, Frederic Fletcher called the process of petitioning the DEA a “brick wall” for his client.
“She would be tangled up in years of regulatory bureaucracy,” said Fletcher in a phone interview.
“The order doesn’t surprise us. We intend to exhaust all appeals,” said Fletcher. He says an appeal will challenge the entire scheduling of cannabis, not just specific HUD regulations.
HUD did not respond to a request for comment by press time.