In a 28-page decision, the US Court of Appeals for the District of Columbia Circuit has denied petitioners request to overturn the July 2011 denial by the Drug Enforcement Administration to initiate proceedings to reschedule marijuana under federal law.
In October 2002, the Coalition to Reschedule Cannabis, a coalition of reform organizations including NORML, ASA, Patients Out of Time and High Times, among others, petitioned the DEA to reschedule marijuana as a Schedule III, IV, or V drug. Following years of administrative delay, on July 8, 2011, the DEA denied the petition, finding that “[t]here is no currently accepted medical use for marijuana in the United States,” and that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.”
Petitioners then sought review in the federal Court of Appeals, alleging the decision by the DEA was arbitrary and capricious when it concluded that marijuana lacks a “currently accepted medical use” and has a “high potential for abuse.” They ask this court to remand the case to the DEA for reconsideration of its decision.
Written by Senior Circuit Judge Edwards, the decision ruled “On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a ‘currently accepted medical use.’ The DEA’s regulations, which we approved in Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), define ‘currently accepted medical use’ to require, inter alia, ‘adequate and well-controlled studies proving efficacy.’ Id. at1135. We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist.
“In its scientific and medical evaluation,” the court held, “DHHS concluded that marijuana lacks a currently accepted medical use in the United States. In reaching this conclusion, DHHS applied the DEA’s established five-prong test, which requires a known and reproducible drug chemistry, adequate safety studies, adequate and well-controlled studies demonstrating efficacy, acceptance of the drug by qualified experts, and widely available scientific evidence.”
“We will not disturb the decision of an agency that has ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’”
In this case, we need only look at one factor, the existence of “adequate and well-controlled studies proving efficacy,” to resolve Petitioners’ claim.
At bottom, the parties’ dispute in this case turns on the agency’s interpretation of its own regulations. Petitioners construe “adequate and well-controlled studies” to mean peer-reviewed, published studies suggesting marijuana’s medical efficacy. The DEA, in contrast, interprets that factor to require something more scientifically rigorous.
In making this assessment, we must “remind ourselves that our role in the Congressional scheme is not to give an independent judgment of our own, but rather to determine whether the expert agency entrusted with regulatory responsibility has taken an irrational or arbitrary view of the evidence assembled before it.
The DEA’s construction of its regulation is eminently reasonable. Therefore, we are obliged to defer to the agency’s interpretation of “adequate and well-controlled studies.” Judged against the DEA’s standard, we find nothing in the record that could move us to conclude that the agency failed to prove by substantial evidence that such studies confirming marijuana’s medical efficacy do not exist.”
Petitioners are considering their legal options at this time.
When the court clerk finally called our case, the judge almost immediately called the attorneys to a bench conference, where he quickly indicated he would not have the time to hold this evidentiary hearing, but that he would refer the case to another judge in another courtroom, and we would have our evidentiary hearing that very day.
Attorney Matt Feinberg; law student Brendan Hickey; Co-Defendant Rick Cusick; Lester Grinspoon, M.D.; Co-Defendant Keith Stroup; Professor Charles Nesson; and Keith Saunders, Ph.D.
We had actually filed a motion to dismiss the case, based on our allegation that the marijuana laws are unconstitutional, and we had requested a full evidentiary hearing where we could call a number of witnesses to make our case. We had expected that the 30-page affidavit from Lester Grinspoon, M.D., would be sufficient to convince a judge to schedule an evidentiary hearing in 30 or 45 days. We were certainly not anticipating holding a hearing that very day, nor would we expect the government would be ready to hold such a hearing without some time to prepare their case.
On Saturday, September 15, 2007, NORML Founder Keith Stroup and High Times associate publisher Rick Cusick were arrested for smoking a joint at the 18th annual Boston Freedom Rally on the Boston Common. This is an event held each year to protest the continued arrest of responsible cannabis consumers in that state, and depending on the weather, it attracts from 15,000 to 50,000 supporters to the Common.
Keith and Rick have candidly acknowledged that they were sharing a joint, but they have pled not guilty and announced their intentions to challenge the constitutionality of the Massachusetts marijuana laws, and to argue for a jury instruction informing the jurors of their common law power to refuse to convict an individual, if they do not believe the offense should be a criminal matter. This long-held power of jurors is generally called jury nullification.
More after the jump… (more…)