Veterans Ask Ninth Circuit to Make Feds Rethink Position on Marijuana

A medical researcher and a group of veterans are challenging the federal government’s position that marijuana has no accepted medical benefit, despite it being legal for medicinal purposes in 36 states.

In this Aug. 15, 2019 file photo, marijuana grows at an indoor cannabis farm in Gardena, Calif. (AP Photo/Richard Vogel)

(CN) — In a case that could make the federal government reconsider how it classifies marijuana, a lawyer urged a Ninth Circuit panel Thursday to make the U.S. Drug Enforcement Administration reassess its 49-year-old position that cannabis has no accepted medical use.

“It’s a relic of a bygone era,” attorney Shane Pennington told a three-judge Ninth Circuit panel.

Pennington represents Dr. Suzanne Sisley, an Arizona-based medical marijuana researcher, and three veterans who claim they suffer ongoing harm from the federal government’s refusal to reclassify cannabis as a drug with medicinal benefits. Their Ninth Circuit petition highlights research Sisley has conducted using marijuana to treat veterans who suffer from post-traumatic stress disorder.

Despite the fact that medical marijuana is legal in 36 states, the DEA has classified cannabis as a Schedule I drug — the most restrictive category — since 1972. Congress empowered the DEA to decide how drugs should be classified in the Controlled Substances Act of 1970. That was around the same time former President Richard Nixon declared a “war on drugs.”

The petitioners argue a five-factor test the DEA established in 1992 to determine if a drug has any medical benefit is arbitrary, leads to absurd results and contradicts the will of Congress.

But most of the Ninth Circuit hearing Thursday focused not on the wisdom of the DEA’s decision or its criteria for categorizing drugs. Rather, it focused on whether the petitioners have standing to bring their challenge in federal court.

That’s because Sisley and the veterans are challenging the denial of a petition they never filed. The one-page, handwritten petition asking the DEA to reclassify marijuana was filed by Stephen Zyszkiewicz and Jeramy Bowers in January 2020. The DEA denied the petition four months later. Zyszkiewicz and Bowers have two separate lawsuits pending over the denial in the District of Columbia.

“This is a really odd case,” Circuit Judge Willaim Fletcher, a Bill Clinton appointee, told lawyers challenging the DEA’s decision. “You appealed the denial of somebody else’s petition. I’ve never seen a case like this.”

But it’s not unprecedented, according to Matthew Zorn, another lawyer representing Sisley and the veterans.

To support his position, Zorn cited the seminal 2007 Supreme Court case, Massachusetts v. EPA, which forced the federal agency to start regulating greenhouse gas emissions to combat climate change. In that case, Massachusetts was challenging the denial of a petition filed by someone else.

“None of the judges at the D.C. Circuit or on the Supreme Court thought anything about it, that Massachusetts was filing a petition for review on another party’s petition,” Zorn said.

Drawing a distinction, Justice Department lawyer Daniel Aguilar told the panel that Massachusetts had standing in that case only because the Supreme Court found it deserved “special solicitude” as a “sovereign state.”

Responding to a question posed by Circuit Judge Daniel Collins, a Donald Trump appointee, Aguilar acknowledged the Massachusetts v. EPA court never squarely addressed the question of whether a party can challenge the denial of a petition it did not file. But he insisted that no case law exists to support that notion.

Fletcher indicated that he agrees with that position.

“It doesn’t strike me as reasonable to allow somebody to come in this way without themselves having filed a petition, to piggyback on the denial of such an odd and abbreviated petition,” Fletcher said. “It just doesn’t fit with the way the administrative process is supposed to work.”

But the judge also pressed Aguilar as to why Massachusetts was allowed to file a suit like that if it’s not allowed.

“I’m trying to figure out still your differentiation between this case and the Massachusetts case,” Fletcher said. “Are you saying the petitioners here, the people in front of us now, they lack Article III standing? Is that the argument? Because I think they have Article III standing. The veterans actually would like to use this free of the constraints from having this be a Schedule I drug.”

U.S. Circuit Judge Paul Watford, a Barack Obama appointee, suggested that allowing people to challenge decisions on petitions they didn’t file could lead to a flood of litigation. Potentially tens of millions of people allegedly harmed by the DEA’s decision could file their own challenges to the petition denial in separate circuit courts across the country, Watford said.

Aguilar insisted that a claim of harm based on the denial of someone’s else petition cannot give rise to a “particularized or concrete injury.”

If the petitioners in this case want the DEA to change its position on marijuana, they need to file their own DEA petition, Aguilar said.

“There’s nothing impeding petitioners here from filing a petition with the DEA, laying out their arguments so that DEA could consider that in the first instance,” he said.

Zorn told the panel that this is a “pure legal issue” that is “ripe for decision,” and requiring his clients to go through the lengthy process of filing their own petition would cause undue delay.

“We want this done now,” Zorn said. “My clients are suffering injuries from the failure to engage in rulemaking, from the failure to apply this statute according to the plain and ordinary reading.”

After 33 minutes of debate, the panel took the arguments under submission.

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