|
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
CARL OLSEN,
Petitioner
-against-
DRUG ENFORCEMENT ADMINISTRATION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA
|
Lawrence Elliott Hirsch*
Allison Kubiak
Joel Ian Herzfeld
Lawrence Elliott Hirsch & Associates
Counselors At Law, P.C.
1700 Sansom Street
Suite 501
Philadelphia, Pennsylvania 19103
(215) 496-9530
LEH36@aol.com*Counsel
of Record |
QUESTIONS PRESENTED
1. Did the Drug Enforcement Administration improperly
reject Petitioners petition to have marijuana rescheduled from Schedule I to
Schedule II of the Controlled Substances Act of 1970, and whether that rejection was
arbitrary and capricious and contrary to law?
2. Did the Drug Enforcement Administration violate
Petitioners rights under the First Amendment to the United States Constitution to
petition the government for a redress of grievances, and thus his Fifth Amendment right to
due process, by summarily dismissing his petition to have marijuana rescheduled from
Schedule I to Schedule II of the Controlled Substances Act of 1970 without a proper
hearing?
3. Did the Drug Enforcement Administration violate
Petitioners Fifth Amendment procedural due process rights by summarily dismissing
his petition to have marijuana rescheduled from Schedule I to Schedule II of the
Controlled Substances Act of 1970 without a proper hearing?
4. Did the Drug Enforcement Administration violate
Petitioners right to privacy, interfering with sensitive medical decisions without
proper constitutional justification, by summarily dismissing his petition to have
marijuana rescheduled from Schedule I to Schedule II of the Controlled Substances Act of
1970 without a proper hearing?
5. Did the Drug Enforcement Administration violate
Petitioners right to equal protection of the laws, invalidly treating legal medical
Marinol patients differently from illegally smoked marijuana patients without a rational
basis, by summarily dismissing his petition to have marijuana rescheduled from Schedule I
to Schedule II of the Controlled Substances Act of 1970 without a proper hearing?
PARTIES TO THE PROCEEDING
The parties to the proceeding in the United States Court of Appeals for
the District of Columbia are those in the caption.
TABLE OF AUTHORITIES
SUPREME COURT
|
Page(s) |
Abie State Bank v. Bryan, 282 U.S. 765 (1931) |
22 |
Bates v. Little Rock, 361 U.S. 516 (1960) |
20 |
Batterton v. Francis, 432 U.S. 416 (1977) |
14 |
Bolling v. Sharpe, 347 U.S. 497 (1954) |
20 |
Bowers v. Hardwick, 478 U.S. 186 (1986) |
19 |
Brown v. Hartlage, 456 U.S. 45 (1982) |
16 |
Buckley v. Valeo, 424 U.S. 1 (1976) |
20 |
Carey v. Population Services Intl, 431 U.S. 678 (1977) |
19 |
Chevron U.S.A. Inc.v. Natural Resources
Defense Council, 467 U.S. 837 (1984) |
13, 15 |
City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432 (1985) |
21 |
Duncan v. Louisiana, 391 U.S. 145 (1968) |
16 |
Eisenstadt v. Baird, 405 U.S. 438 (1972) |
15 |
Florida Power & Light Co. v. International
Brd. Of Elec. Wkrs., 417 U.S. 790 (1974) |
8 |
Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985) |
21 |
International Brd. Of Elec. Wkrs v. NLRB,
487 F.2d 1143 ( D.C. Cir. 1973), affd sub nom. |
8 |
Madison School Dist. v. Wisconsin
Employment Comm., 429 U.S. 178 (1976) |
17 |
McDonald v. Board of Election
Commissioners, 394 U.S. 803 (1969) |
21 |
McDonald v. Smith, 472 U.S. 479 (1985) |
16, 17 |
McLaughlin, v. State of Florida, 379 U.S. 184 (1964) |
20 |
Moore v. City of East Cleveland, 431 U.S. 479 (1965) |
19 |
NLRB v. Brown, 380 U.S. 278 (1965) |
8 |
Palko v. Connecticut, 302 U.S. 319 (1937) |
19 |
Planned Parenthood v. Casey, 505 U.S. 833 (1992) |
16, 19, 20 |
Plyer v. Doe, 457 U.S. 202 (1982) |
21 |
Poe v. Ullman, 367 U.S. 496 (1961) |
20 |
Reno v. Flores, 507 U.S. 292 (1993) |
16, 19 |
San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) |
16 |
Schneider v. Sate of New Jersey,
Town of Irvington, 308 U.S. 147 (1939) |
16, 20 |
Sect'y of Agriculture v. United States,
347 U.S. 645(1954) |
15 |
Skidmore v. Swift, 323 U.S. 134,140 (1944) |
14 |
Southeastern Community College v. Davis,
442 U.S. 397(1979) |
9-10 |
Steelworkers v. Sadlowski, 457 U.S. 102 (1982) |
16 |
Teamsters v. Daniel, 336 U.S. 551 (1979) |
9 |
Vance v. Bradley, 440 U.S. 93 (1979) |
21 |
Whalen v. Roe, 429 U.S. 599 (1977) |
19 |
Weinberger v. Hynson, Westcott
and Dunning, Inc., 412 U.S. 609 (1973) |
12 |
APPEALS COURTS
|
Page(s) |
Alliance for Cannabis Therapudics v.
Drug Enforcement Administration,
930 F.2d 936 (D.C. Cir. 1991) |
Passim |
Alliance for Cannabis Therapudics v.
Drug Enforcement Administration,
15 F.3d 1131 (D.C. Cir. 1994) |
Passim |
Brookline v. Gorsuch, 667 F.2d 215 (1st Cir. 1981) |
10 |
Citizens for Allegan County, Inc. v.
FPC, 414 F.2d 1125 (D.C. Cir. 1969) |
12 |
Food Marketing Institute v. Interstate
Commerce Com., 587 F.2d 1285 (D.C. Cir. 1978) |
15 |
FORMULA v. Heckler, 779 F.2d 743 (D.C. Cir. 1985) |
14 |
Grinspoon, M.D. v. Drug Enforcement
Administration, 828 F.2d 881 (1st. Cir. 1987) |
11, 22 |
Municipal Light Boards v. FPC,
450 F.2d 1341 ( D.C. Cir. 1971), cert.
denied, 405 U.S. 989 (1972) |
12 |
National Organization for the Reform
Marijuana Laws v. Drug Enforcement
Agency, 559 F.2d 735 (D.C. Cir. 1977) |
Passim |
Olsen v. Drug Enforcement Administration,
878 F.2d 1458 (D.C. Cir. 1989), cert. denied,
495 U.S. 906 (1990) |
18 |
Olsen v. Drug Enforcement Administration,
776 F.2d 267 (llth Cir. 1985), cert. denied,
475 U.S. 1030 (1986) |
18 |
Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986) |
18 |
Quill v. Vaco, 80 F.3d 716 (2d Cir. 1996) |
16 |
San Filippo v. Bongiovanni,
30 F.3d 424 (3rd. Cir. 1994) |
17 |
St. Mary of Nazareth Hospital Center
v. Schweiker, 718 F.2d 459 (D.C. Cir.
1983), on remand, 587 F.Supp. 937 (D.D.C. 1984) |
11 |
United States v. Alexander, 673 F.2d 287
(9th Cir. 1982) |
12 |
United States v. Rush, 738 F.2d 497
(lst Cir. 1984), cert. denied, 470 U.S. 1004 (1985) |
18 |
United States v. Walton, 514 F.2d 201 (D.C. Cir. 1975) |
13, 21, 22 |
Wheatley v. Adlee, 407 F.2d 307 (D.C. Cir. 1968) |
8, 9, 11 |
LOWER COURTS
|
Page(s) |
Doe v. United States Civil Serv.
Com'n., 483 F.Supp. 539 (S.D.N.Y. 1980) |
20 |
National Organization Reform Marijuana Laws
v. Bell, 488 F.Supp. 123 (D.D.C. 1980) |
19, 21 |
Rivers v. Katz, 67 N.Y.2d 485 (1986) |
20 |
Schloendorff v. Society of New York Hosp.,
211 N.Y. 125 (1914) |
19 |
State v. Olsen, 315 N.W.2d 1 (Iowa 1982) |
18 |
CONSTITUTION, STATUTES, AND REGULATIONS
|
Page(s) |
U.S. Const.Amend. I |
16 |
U.S. Const.Amend. V |
Passim |
U.S. Const.Amend IX |
20 |
5 U.S.C. 706 |
Passim |
21 U.S.C. 811 |
Passim |
21 U.S.C. 812 |
Passim |
21 U.S.C. 877 |
8 |
21 C.F.R. 1307.03 |
7 |
21 C.F.R. 1308.44 |
3, 7, 11 |
28 C.F.R. 0.100(b) |
2 |
28 C.F.R. 0.104 |
2 |
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
CARL OLSEN,
Petitioner
-against-
DRUG ENFORCEMENT ADMINISTRATION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA
Petitioner herein respectfully prays that a writ of certiorari issue to
review the judgement of the United States Court of Appeals for the District of Columbia
entered on October 3, 1996.
OPINIONS BELOW
The decision of the United States Court of Appeals for the
District of Columbia is unreported, (94-1605 D.C. Cir. October 3, 1996). (1a) The
final order of the Drug Enforcement Administration is also unreported, (93-1109 D.C. Cir.
May, 16, 1994). (2a)
BASIS FOR
JURISDICTION
The final order of the court of appeals was entered on October 3,
1996. The court of appeals had jurisdiction over this matter pursuant to 21 U.S.C. § 877. This Court has jurisdiction to review
the judgement of the court of appeals pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
Pursuant to Rule 14(f) of the Supreme Court Rules, the citation of
relevant constitutional, statutory, and regulatory provisions involved are listed here,
while the pertinent text is set out in the appendix to this petition at pages 8-23.
First, Fifth, Ninth and Fourteenth Amendments to the United States
Constitution
5 U.S.C. 706
21 U.S.C. 811
21 U.S.C. 812
21 U.S.C. 877
21 C.F.R. 1307.03
21 C.F.R. 1308.11
21 C.F.R. 1308.12
21 C.F.R. 1308.44
28 C.F.R. 0.100(b)
28 C.F.R. 0.104
STATEMENT OF THE
CASE
I. STATUTORY AND REGULATORY BACKGROUND
In 1970 Congress passed the Controlled Substances Act, 21 U.S.C. 801 et
seq. ("C.S.A."). The C.S.A. classifies various substances into five
schedules. 21 U.S.C. 812. Restrictions upon use and access to a particular
drug vary based upon the drug's schedule status in the C.S.A. Id. Drugs
in Schedule I are subject to more severe restrictions than drugs in the other
schedules. See Alliance for Cannabis Therapeutics (hereinafter
"A.C.T.") v. Drug Enforcement Administration ( hereinafter "D.E.A."),
930 F.2d 936, 937(D.C. Cir. 1991). Congress placed marijuana in schedule I of the
C.S.A. 21 U.S.C. 812(c), schedule I(c)(10).
Although Congress made the initial scheduling decisions, the C.S.A.
specifically permits the Attorney General to add a substance to a schedule, transfer a
substance from one schedule to another or remove a substance from the schedules
entirely. 21 U.S.C. 811(a)(1).1
The Attorney General may only add or transfer a substance to a different
schedule if she "finds that such drug or other substance has a potential for
abuse" and makes findings that the drug or substance meets the requirements for the
new schedule. See 21 U.S.C. 811 (1)(a)and (b). Section 812(b) of
Article 21 of the United States Code sets out the findings required to place a substance
in a particular schedule. 21 U.S.C. 812(b). The Attorney General has delegated
the authority to reschedule controlled substances to the Administrator of the D.E.A.
28 C.F.R. 0.100(b). The Drug Enforcement Administrator (hereinafter
"Administrator") has further delegated this authority to the Deputy
Administrator of the D.E.A. 28 C.F.R. 0.104.
The C.S.A. provides that any interested party may petition to have a
substance added to, removed or transferred between the controlled substance
schedules. 21 U.S.C. 811 (a)(2). Any rules promulgated under this subsection are
subject to the rule making procedures of the administrative Procedures Act found in Title
5. 21 U.S.C. 811(a)(2); 5 U.S.C. 5(subchapter II). Pursuant to Title 5, a
reclassification rule promulgated under 811(a)(1) must be made on the record after
opportunity for hearing. National Organization For the Reform of Marijuana
Laws(hereinafter "NORML") v. D.E.A., 559 F.2d 735,738 n9(1977).The
administrator of the D.E.A. is obligated to respond to all petitions for the issuance,
amendment or repeal of rules pursuant to 21 U.S.C. 811 and by 21 C.F.R. 1308.44 (C) which
provides that within a reasonable time after the receipt of a petition, the administrator
shall notify the petitioner of his acceptance or nonacceptance of the petition, and if not
accepted reasons therefore. This obligation pertains whether or not the object of
the petition falls within the scope of 21 U.S.C. 811. 21 C.F.R. 1308.44(C).
Section 811(b) of Article 21 of the United States Code, titled
Evaluation of Drugs and Other Substances, clearly states that the Attorney General must,
after gathering all the necessary data, request from the Secretary a scientific and
medical evaluation, and his recommendations, as to whether such drug or other substance
should be so controlled. 21 U.S.C. 811 (b). These recommendations are binding
upon the Attorney General. Id. The clear mandate of the statute and
case precedent make it clear that the D.E.A. is not authorized to make scientific and
medical findings regarding the scheduling of substances without advice from the Secretary
of HEW(now H.H.S.) or their delegatee, FDA. NORML, 559 F.2d at 738. For
example, the D.E.A. must defer to H.H.S. for scientific and medical findings regarding the
structure of a drug. 21 U.S.C. 811(b)
The D.E.A.s stubborn refusal to exercise its authority to
reschedule marijuana has resulted in an arduous legal history of orders and remands.
See Alliance for Cannabis Therapeutics(hereinafter "A.C.T.") v. D.E.A.,
15 F.3d. 1131 (D.C. Cir. 1994); A.C.T., 930 F.2d at 937; NORML v. D.E.A.,559
F.2d 735 (D.C. Cir. 1977); NORML v. Ingersoll, 497 F.2d 654 (D.C. Cir. 1974).
These cases originated from one petition filed with the Bureau of
Narcotics and Dangerous Drugs (BNDD), predecessor to the D.E.A.. On May 18, 1972
NORML filed the petition seeking to have marijuana removed from the C.S.A. or in the
alternative transferred to schedule II. NORML, 497 F.2d at 655. As a
result of BNDDs refusal to accept the petition for filing, NORML sued. Id.
at 656. The Court of Appeals ordered the D.E.A. to accept the petition and respond
on the merits. Id. at 661. Thereafter, D.E.A. Administrator skirted the
statutorily mandated recommendation from the secretary of HEW, ignored the findings of
Administrative Law Judge Parker and denied the petition in all respects. 40 Fed.Reg.
44164, 44168 (1975); NORML, 559 F.2d at 742-43. The Court of Appeals again
remanded the petition back to the D.E.A. with an order to refer the petition to the
Secretary of HEW for medical and scientific findings and recommendations for
rescheduling. NORML, 559 F.2d at 757.
Forced to follow proper procedure, D.E.A. issued a notice of a hearing
on the rescheduling petition in 1986. See 51 Fed. Reg. 22,946 (1986).
Administrative Law Judge Young conducted extensive proceedings and found that marijuana
enjoyed a current accepted medical use and therefore could be placed in schedule II.
A.C.T., 930 F.2d at 938. Rejecting the evidence and disagreeing with Judge
Youngs conclusions, the D.E.A. Administrator reaffirmed his prior order stating that
marijuana should not be moved from schedule I because the marijuana plant has no currently
accepted medical use. See 54 Fed. Reg. 53,767, 53,784 (1989). In making
this determination, previous Administrator Lawn listed several criteria used for
determining accepted medical use, and declared that marijuana failed to meet them. See
57 Fed. Reg. at 10,507-10,508.
As the issue became more narrowly focused, A.C.T. became the lead
petitioner in the case. A.C.T., and other parties seeking rescheduling, advanced the
argument that pursuant to 21 U.S.C. 812(b)(2)(B), marijuana has an accepted medical use in
the United States and therefore should be rescheduled. See A.C.T., 930
F.2d at 939.
A.C.T. appealed the order for a second time. The Appeals Court remanded
the case yet again on the grounds that the criteria the Administrator used to determine
currently accepted medical use were impossible to satisfy. See A.C.T.,
930 F.2d at 940-941.
Reconsidering the issue yet again, the new Administrator explained that
the prior Administrator had not relied on two of the three impermissible criteria and
clarified the third criteria. 57 Fed. Reg. 10,507, 10,499 (1992); A.C.T. v.
D.E.A., 15 F.3d. 1131 (D.C. Cir. 1994). According to Administrator Bonner, the
two criteria not considered were the general availability of the substance and the use of
the substance by a substantial segment of medical practitioners. 57 Fed. Reg., at
10,499 (1992). He further argued that the recognition of clinical use in generally
accepted pharmacopeia rested on a determination by the previous administrator that
marijuana lacked a known, reproducible chemistry. A.C.T., 15 F.3d. at
1135. Thus, a new five part test for determining whether a drug had a currently
accepted medical use was created.2 57 Fed. Reg at 10,506. Based on these findings he upheld the
decision that marijuana plants should remain in schedule I. Id. The
Court of Appeals upheld the Order, finding that the D.E.A. had properly clarified its test
for accepted medical use. Id. at 10,499; See also A.C.T., 15
F.3d at 1137.
As the issue proceeded through the courts, tangential consideration was
given to the difference between synthetic THC and THC found naturally in marijuana.
54 Fed. Reg. at 53,774. In the Final Order on the petition, Administrator Bonner
adopted the findings of former Administrator Lawn who stated there is no difference in the
pharmacological effect between THC isolated from cannabis and the synthetically produced
THC which is now marketed in the United States. Id. Administrator
Lawns conclusion concurred with prior findings made by H.H.S. that the
pharmaceutical qualities of synthetic delta-9-THC are the same as those of delta-9-THC
itself. Id. Following isolation and characterization of delta-9-THC as
the major active component of marijuana by Mechoulam and colleagues, a technique for
producing synthetic material was developed. Plasse, T.;Gorter, R.; Krasnow, S.;
Lane, M.; Shepard, K.; Wadleigh, R. Recent Clinical Experience with Drionabinol.
Pharmacology Biochemistry & Behavior, Vol. 40, pp. 695-700; 1991 (Gaoni, Y.; Mechoulam
R.; neutral cannabinoids from hashish. J Am. Chem. Soc. 93; 217-224; 1971)
(Petrzilaka, T.; Haefliger,W.; Sikemier, C. Synthesis of Hashish Components. Part
4. Helv. Chim. Acta 52: 1102-1134; 1969). This process was used to create the
drug Marinol which is now at the heart of the present controversy. See Id.
By definition, a synthetic drug is the same as its natural occurring
twin. (24a). Dronabinol is only one substance, not two. Adding sesame oil and
encapsulating the finished recipe in soft gelatin capsules, while having significance to
the Food and Drug Administration (hereinafter "F.D.A.") for marketing purposes,
does not make Dronabinol into another drug for scheduling purposes. In 1986, Health
and Human Services (H.H.S.) recognized that synthetic delta-9-THC is the same as its
naturally occurring twin. 51 Fed. Reg. at 17,476.
II. THE CURRENT PROCEEDINGS
On July 21, 1992, noting several inconsistencies between the Order and
prior findings of fact and law, the petitioner sent a letter to then-Administrator Robert
C. Bonner in which he raised several questions about the Administrator's final
order. Specifically, petitioner asked why coca and opium poppy plants are scheduled
in Schedule II of the C.S.A., since both of these plants are subject to the same variances
in chemistry as the marijuana plant and neither are reproducible in standardized dosages.
(25a); See 57 Fed. Reg. 10,499.
On August 17, 1992, Administrator Bonner sent the petitioner a response
to his letter. In the response, the Administrator rejected the petitioner's attempt
to analogize marijuana plants to coca and opium plants. (26a). The Administrator
explained that when Congress placed coca leaves and opium plant materials in Schedule II,
it was aware that these plants had been recognized historically as the source for a
variety of accepted and useful medications. Id. The plants contain
medically active alkaloids that can be extracted and used to produce pharmaceutical
compounds capable of reproduction in standardized doses. Id. In
contrast, the Administrator pointed out that the recent attempts to reschedule marijuana
were not grounded on claims that medically useful compounds could be extracted from
marijuana, but rather that smoking marijuana itself produced medical benefits. Id.
Thus, the Administrator found the scheduling decisions to be reconcilable. Id.
Interpreting the Administrator's statements regarding the scheduling of
coca and opium poppy plants as general rules of statutory construction, the petitioner,
proceeding pro se, then filed a formal request for the rescheduling of marijuana pursuant
to 21 U.S.C. 811 and 21 C.F.R. 1307.03 in the form prescribed by 21 C.F.R.
1308.44(b). The petition was based on the grounds that Dronabinol,
delta-9-tetrahydrocannabinol (delta-9-THC), the principle psychoactive substance in the
marijuana plant, was rescheduled to schedule II of the C.S.A. in 1986, and, therefore,
because marijuana is the source of Dronabinol, it should have been moved into the same
schedule as Dronabinol.(27-28a) See Final Order of the Drug Enforcement
Administration, May 13, 1986: 51 Fed. Reg. 17,476 (placing Dronabinol in schedule II).
In an order dated May 16, 1992, Deputy Administrator Greene refused to
accept the petition for filing on the basis of his finding that Dronabinol is a wholly
synthetic substance and is not obtained from marijuana. Despite refusing to accept
the petition for filing, the administrator proceeded to reject the issues raised in the
petition on their merits. The Deputy Administrator responded to the petition stating
only the pharmaceutical product was transferred from schedule I to schedule II, i.e.,
Dronabinol in sesame oil and encapsulated in a soft gelatin capsule in a U.S. Food and
Drug Administration approved drug product. No rescheduling action was taken with
regard to (-) delta-9-trans-THC, i.e., Dronabinol, which remains in Schedule I of the
C.S.A.. The Deputy Administrator further explained under the C.S.A., the regulation
of chemicals and the plant material are distinct from each other. The classification
of delta-9-THC has no bearing on the classification of marijuana. Under the C.S.A., a
proposed change in the schedule of either a tetrahydrocannabinol or the plant marijuana
requires the Attorney General to proceed independently. See 21 U.S.C. 811.
Petitioner appealed the Deputy Administrators denial of the
petition to the Circuit Court of Appeals for the District of Columbia Circuit. Olsen
v. D.E.A., No. 93-1109 (D.C. Cir. Dec. 9, 1993). Familiar with Appellate Court
frustration toward the D.E.A. in such matters, the D.E.A. requested a remand for a formal
ruling on the petition. Order dated December 9, 1993. See Olsen v.
D.E.A., No. 93-1109 (D.C. Cir. Dec. 9, 1993).
Without seeking advice from the Secretary of Health and Human Services,
(hereinafter "H.H.S.") Deputy Administrator Stephen H. Greene issued a nine-page
Final Order denying the petition. (2-8a) In the Final Order Mr. Greene rejected the
petitioner's analogy, finding that marijuana can only be moved from schedule I if there is
a finding that marijuana has a "currently accepted medical use in treatment in the
United States." (6a) The order acknowledged that (-)delta-9-trans-THC isomer, the
principal psychoactive ingredient in marijuana, is also the ingredient in a pharmaceutical
product that has proven to be a safe and effective anti-emetic for patients receiving
cancer chemotherapy. Id. Even so, only a very specific synthetic
Dronabinol product was rescheduled to schedule II --"Dronabinol" (synthetic) in
sesame oil and encapsulated in a soft gelatin capsule" in a drug product approved by
the Food and Drug Administration (hereinafter "F.D.A."). (5-7a)
According to his interpretation of the statute, Administrator Greene
further stated that the regulation of plants and chemicals under the C.S.A. is distinct
and that the C.S.A. requires the independent evaluation of each individual controlled
substance. Thus he concluded, because marijuana plants have no currently accepted
medical use in treatment, the rescheduling of one pharmaceutical product did not require
D.E.A. to transfer marijuana plants or any other substance to schedule II. (6-7a)
Pursuant to 21 U.S.C. 877, the petitioner appealed the Final Order to
the Circuit Court of Appeals. On October 6, 1996 the court affirmed the
D.E.A.s denial of Mr. Olsens petition without opinion.(1a)
REASONS
FOR GRANTING THE PETITION
I. |
Judicial Review of Administrative Process |
Under the Controlled Substances Act, decisions made by the Drug
Enforcement Administrator, with regard to scheduling rules made pursuant 21 U.S.C. §
811(a), are subject to review pursuant to 21 U.S.C. § 877 and 5 U.S.C. §706. While
it is true that the courts role in reviewing administrative decisions is limited,
the doctrine of deference to agency rulings clearly has limits. NLRB v. Brown,
380 U.S. 278, 291 (1965); Wheatley v. Adlee, 407 F.2d 307, 310 (D.C. Cir. 1968).
Courts should only defer to administrative experience where an agency acts within its
discretionary powers, under the law. International Brd. Of Elec. Wkrs v. NLRB,
487 F.2d 1143, 1170-71 ( D.C. Cir. 1973), affd sub nom., Florida Power
& Light Co. v. International Brd. Of Elec. Wkrs., 417 U.S. 790 (1974).
However, such discretion must not be given in support of actions taken
outside of the law. Id. at 1171. Court must determine what
administrative action falls within the law, for no agency is a law unto itself. See
Id.; Brown, 380 U.S. at 291 (Courts must be vigilant to ensure that the
agencys procedures and underlying standards are in accord with the law).
An administrative decision must be set aside if it either rests on
factual premises which are not based on substantial evidence or if the underlying
standards on which the decision is based is not in accord with the law. Wheatley,
407 F.2d at 310. This is especially true where the improper administrative decision
is inconsistent with statutory mandate or where it frustrates the Congressional policy
underlying a statute. Id. Where an administrator exercises discretion
in violation of the law, the court owes no deference to the decision and may set it
aside. NORML v. D.E.A., 559 F.2d at 754.
A. |
Certiorari should be granted to consider
whether the Final Order should be set aside because the decision was made without the
procedure required by law. |
The Final Order of Deputy Administrator Green should be held unlawful
and set aside because Deputy Administrator Green exceeded the scope of his authority under
Section 201(a)of the C.S.A. when he denied Petitioner Olsens rescheduling petition
without first obtaining a medical and scientific evaluation and recommendation from the
Secretary of Health Education and Welfare (hereinafter "H.E.W."). 21
U.S.C. § 811(a); 5 U.S.C. § 706(d); NORML, 559 F.2d at 738. The
D.E.A.s rescheduling power is subject to the limitations proscribed by the
Administrative Procedures Act (hereinafter A.P.A.) 21 U.S.C. 811(b); 5 U.S.C. §
706. Under the A.P.A. an agency action taken in excess of proscribed statutory
authority can be set aside and held unlawful. 5 U.S.C. § 706.
While a reviewing court should grant some deference to an agencys
interpretation of the statute under which it operates, this deference is constrained by an
obligation to honor the clear meaning of a statute as revealed by the language, purpose
and history of the statute. See, Teamsters v. Daniel, 336 U.S. 551,556
n.20 (1979); Southeastern Community College v. Davis, 442 U.S. 397,411(1979): Brookline
v. Gorsuch, 667 F.2d 215, 219 (1st Cir. 1981). 21 U.S.C. § 811(b), clearly
requires the Administrator, prior to the commencement of reclassification rule making
proceedings under subsection section (a), to request from the Secretary a scientific and
medical evaluation, along with the Secretarys recommendations as to whether such
drug or other substance should be so controlled or removed as a controlled
substance. 21 U.S.C. § 811(b); NORML, 559 F.2d at 754. Pursuant to
section 201(b), the Secretarys recommendations shall be binding on the Administrator
as to such scientific and medical matters. 21 U.S.C. § 811(b). If the secretary
recommends that a drug or other substance not be controlled then the Administrator shall
not control the drug or other substance. 21 U.S.C. § 811(b). Both D.E.A. and
H.E.W. have interpreted this section to bar the D.E.A. from exceeding the level of control
recommended by H.E.W. NORML, 559 F.2d at 738 n.11.
In addition to ignoring the clear language of the statute, D.E.A.s
denial of the petition without seeking the advice of H.E.W went against established case
precedent and Congressional policy. Id. at 745. In previous
rescheduling cases, the courts have repeatedly held that D.E.A. is required to seek the
input of H.E.W. before making scheduling determinations. Id.3 In
reaching this conclusion, courts have reviewed the statutory history and record of the
C.S.A. and found that Congress strongly disfavored placing too much control into the
Attorney Generals hands. NORML, 559 F.2d at 744-48. As the
Congressional record demonstrates, Congress sought to have the D.E.A. use H.E.W.s
vast scientific and medical resources to make scheduling decisions rather than relying the
Administrators personal opinions. See NORML, 559 F.2d at
746. Statements found in the Senate report made regarding the C.S.A. show the
commonly held belief, by members of both houses, that the D.E.A. is simply not qualified
to make such important medical and scientific decisions.4 See Id. at n.47.
Just as in 1977, the failure of the Deputy Administrator to follow the spirit and the
letter of the law in handling Mr. Olsens petition amounts to the destruction of the
balance of power created by a deliberate and conscientious exercise of the legislative
process. See, Id. at 746; Wheatley, 407 F.2d at 310.
The D.E.A.s refusal to follow proper rule making procedure is
suspect, in consideration of the reclassification of synthetic THC to schedule II. See
51 Fed. Reg. 17476. The D.E.A. does not have authority to impose schedule I controls
on a drug which has been approved for medical use by the Food and Drug Administration
(hereinafter "F.D.A.") Grinspoon, M.D. v. D.E.A., 828 F.2d 881,890 (1st.
Cir. 1987) c.f., 1984 U.S. Cong. & Admin. News 540, 543. The failure of
Deputy Administrator Green to seek advice, as required under the C.S.A., from the
Secretary of Health and Human Services may be due to the fact that the F.D.A. has granted
a new drug application for Marinol, a prescription drug product containing THC. 51
Fed. Reg. 17476. Health and Human services has previously notified D.E.A. that
should F.D.A. approve THC for a new drug application, marijuana should be rescheduled to
schedule II. 50 Fed. Reg. 42186. Since the F.D.A. has approved THC for a new
drug application, D.E.A. is required to follow the Secretary of Healths
recommendation. 21 U.S.C. §811.
B. |
The court should grant certiorari to
consider whether the D.E.A.s statutory interpretation is inconsistent with the law
and whether based upon its misinterpretation, it exceeded its statutory authority. |
This court is not required to defer to agency statutory construction
where that construction is inconsistent with the letter of the law. See St.
Mary of Nazareth Hospital Center v. Schweiker, 718 F.2d 459 (D.C. Cir. 1983) , on
remand, 587 F.Supp. 937 (D.D.C. 1984). Claiming to have authority pursuant to 21
C.F.R. 1308.44(c), Deputy Administrator Green denied the petition based upon his findings
that the grounds upon which petitioner relied were not sufficient to justify the
initiation of rescheduling proceedings.5 (7a) Other courts have previously warned the D.E.A. that the outright
rejection of a rescheduling petition is a preemptory action, soundly used only in the
clear case of a filing either patently deficient in form or a substantive nullity. NORML,
497 F.2d at 659; Municipal Light Boards v. FPC, 450 F.2d 1341,1345 ( D.C. Cir.
1971), cert. denied, 405 U.S. 989 (1972). The court further cautioned
that the use of the preemptory challenge should not be used to dispose of a matter on the
merits. Municipal Light Boards, 450 F.2d at 1346. In very limited
cases, a rejection of a petition on the merits may be taken without invoking formal rule
making proceedings when issues of law are decisive and can be decided without taking
testimony or hearing the views of others involved. Weinberger v. Hynson, Westcott
and Dunning, Inc., 412 U.S. 609,621 (1973); Citizens for Allegan County, Inc. v.
FPC, 414 F.2d 1125, 1129 (D.C. Cir. 1969). The Administrators technical
arguments in the Final Order prove that this was not a clear cut case involving decisive
issues of law. (2-7a); See Id. Because the petition involved technical
scientific and legal questions, the administrator acted without authority in denying the
petition on the merits. See 21 U.S.C. § 811 (b); NORML, 559 F.2d at
741.
The Administrator also exceeded the scope of his statutory authority
when he ignored the evidence presented by Mr. Olsen. 21 U.S.C. § 811(a); Weinberg,
412 U.S. at 620; United States v. Alexander, 673 F.2d 287 (9th Cir. 1982); NORML,
559 F.2d at 741. Due to the evidence that a D.E.A. scheduling decision was possibly
in conflict with an H.E.W. recommendation, the D.E.A. was required to consult with and
follow H.E.W.s recommendations regarding the merits of the petition. (2-9a) See
also 21 U.S.C. § 811(b); 50 Fed. Reg. 42186; NORML, 497 F.2d at 659.6
Completely ignoring this evidence, the D.E.A. denied the petition on the grounds that Mr.
Olsen presented no new medical, scientific or other information. (5-7a)7 The
failure to consider this new evidence was beyond the scope of the Administrators
authority. 21 U.S.C. § 811(a).
C. |
The Court should grant certiorari to
consider whether the Administrators findings were contrary to the law. |
The D.E.A.s finding that the rescheduling of synthetic Dronabinol
encapsulated in sesame oil has no bearing on the rescheduling of marijuana contradicts
case precedent and therefore is incorrect as a matter of law. See 40 Fed.
Reg. 44167,44168 (1974); NORML, 559 F.2d at 742,757. The chemical
delta-9-tetrahydrocannabinol (THC) is the principal psychoactive substance in cannabis
materials and is the reason the marijuana plant is subject to control under the CSA.
40 Fed. Reg. 44166 (1975); United States v. Walton, 514 F.2d 201, 202-04 (D.C. Cir.
1975). In prior cases, D.E.A. was required to consider the scheduling of
"synthetic THC" along with its consideration of rescheduling marijuana. NORML,
559 F.2d at 757. The court found that the D.E.A. was estopped from arguing that
NORML was required to file a separate petition to reschedule synthetic THC because D.E.A.
did not contend it had been prejudiced when synthetic THC was discussed at rescheduling
hearings. Id. Furthermore, the court found that the D.E.A. had failed
to argue that the differences between the synthetic THC and natural marijuana were too
great to warrant consolidated consideration. Id. Based upon this
precedent, the D.E.A. cannot now properly argue that synthetic THC and the THC found in
marijuana are not related. See Respondents Brief (38-40a). This
finding should be set aside on the grounds that it contradicts prior case law. 5
U.S.C. §706.
D. |
The Court should grant certiorari to
consider whether the D.E.A.s denial of the rescheduling petition was made
arbitrarily and capriciously. |
Under the Administrative Procedures Act, an administrative decision made
arbitrarily or capriciously may be set aside. 5 U.S.C. §706(a); Chevron U.S.A.
Inc.v. Natural Resources Defense Council, 467 U.S. 837, 843-44 (1984). The
D.E.A.s unjustified change of position with respect to synthetic versus natural THC
reveals the arbitrary and capricious manner in which Mr. Olsens petition was
denied. 5 U.S.C. §706(a). See Batterton v. Francis, 432 U.S.
416,425 n.9 (1977); Skidmore v. Swift, 323 U.S. 134,140 (1944). Under the
arbitrary and capricious standard, the D.E.A. is required to expressly justify any
departure from earlier regulatory approaches. See, FORMULA v. Heckler,
779 F.2d 743,760 (D.C. Cir. 1985); 771 F.2d 233,242 (D.C. Cir 1983). Furthermore, the
D.E.A. is required to provide a reasoned justification for the departure or the decision
will be found arbitrary and capricious. Heckler, 779 F.2d at 760.
Throughout the history of the rescheduling cases the D.E.A. has
repeatedly changed position on important issues without justifying such departures. Id.;
NORML, 559 F.2d at 746; NORML, 497 F.2d at 659. Previously, D.E.A.
Administrator Bonner explained that schedule II drugs were defined as scientifically
established chemical compounds capable of reproduction in standardized dosages, one of the
factors to be determined in considering whether a substance had a currently accepted
medical use. (26a); See also 57 Fed. Reg. 10499,10505. (1992). In
response to Mr. Olsens inquiry based on the aforementioned definition, Administrator
Bonner differentiated the schedule II placement of coca and opium from the schedule I
placement of the marijuana on the grounds that the coca and opium plants were the basis
for useful medications and that neither of the plants were used in their plant form as
medicine. (26a) In both cases, medically useful alkaloids are extracted from the
plant materials after which a pharmaceutical compound capable of reproduction in
standardized doses are produced. Id. Unlike medications derived from
opium and coca plants, he argued, the petition to reschedule marijuana did not involve the
scheduling of any medically useful compound to be extracted from the plant material.
Id.
Despite the previous Administrators arguments to the contrary,
Deputy Administrator Green, in his Final Order, admitted that marijuana is in fact the
source of a medically useful compound, Dronabinol. See Final Order
(5a). In order to avoid an obvious contradiction, Deputy Administrator Green
successfully distracted the court by turning the argument to the issue of whether or not
Dronabinol itself was a schedule I drug. (5-6a) He argued that Dronabinol was
scheduled in schedule II only when in sesame oil and encapsulated in soft gelatin
capsules. Administrator Green found that the rescheduling of synthetic Dronabinol in
a pharmaceutical compound had no effect on the scheduling of marijuana. (7a) On this
basis, he found the petition failed to raise any issue that justified the initiation of
rescheduling proceedings. Id.
The unjustified findings by the Administrator contradict case law and
prior D.E.A. conclusions and therefore were arbitrary and capricious. 5 U.S.C.
§706(a); Chevron, 467 U.S. at 843-44. The Administrators finding that
the rescheduling of THC in sesame oil had no effect on the rescheduling of marijuana
contradicts D.E.A.s prior finding that H.E.W. recommends moving THC to schedule II
should it become the source of an approved new drug application. 50 Fed. Reg.
42186. Furthermore, during prior rescheduling hearings the D.E.A. agreed that
synthetic THC, which D.E.A. claims is the main substance in Dronabinol, did not need to be
controlled under the C.S.A. 40 Fed. Reg. 44164, 44168 (1975). During further
proceedings, the Administrator took special note that synthetic THC was in schedule
I. 51 Fed. Reg. 17477. Indicative of D.E.A.s own confusion in this area,
when answering the question whether marijuana has an accepted medical use, the
Administrator measured the benefits of synthetic THC use against the negative effects of
marijuana use. 57 Fed. Reg. 10500.
Inconsistent application of administrative precedent requires the agency
to carefully spell out the basis of its decision when departing from prior norms. See,
Sect'y of Agriculture v. United States, 347 U.S. 645,652-53(1954); Food
Marketing Institute v. Interstate Commerce Com., 587 F.2d 1285,1290 (D.C. Cir.
1978). Furthermore, when reviewing an agency decision under 5 U.S.C. §706(2)(A) the
court may accord a greater degree of scrutiny where an agency has been inconsistent.
Id. In this case the D.E.A. has not provided any reasons for the
inconsistency, therefore the decision should be set aside as being arbitrary and
capricious. Chevron, 467 U.S. at 843.
II. |
This Court should grant certiorari to
consider if, by denying Mr. Olsens First Amendment right to petition the government
for a redress of grievances, the Deputy Administrators actions violated the Due
Process Clause of the Fifth Amendment. |
The Supreme Court has identified many constitutional rights as
fundamental, and therefore these rights are entitled to heightened judicial
protection. See Eisenstadt v. Baird, 405 U.S. 438 (1972). These
include the fundamental guarantees of the Bill of Rights, such as the freedom of
association, the right to petition the government for a redress of grievances, and the
right to procedural fairness in regards to claims for governmental deprivations of life,
liberty or property. Planned Parenthood v. Casey, 11 S.Ct. 2791, 2805, 505
U.S. 833 (1992); Duncan v. Louisiana, 391 U.S. 145, 147-148 (1968); Quill v.
Vaco, 80 F.3d 716 (2d Cir. 1996). Through its arbitrary, capricious, and summary
denial of Mr. Olsens rescheduling petition, the D.E.A. has violated his fundamental
right to fair process and his First Amendment right to petition the government for
redress. McDonald v. Smith, 472 U.S.479, 482 (1985). Furthermore, by
denying these rights to Mr. Olsen, who represents the class of interested citizens that
Congress sought to include in the schedule decision making process, the D.E.A.s
ruling violates the equal protection guarantees of the Fifth Amendment and the right to
personal autonomy. C.f., Massachusetts Board of Retirement v. Murgia,
427 U.S. 307, 312 (1975); Doe v. United States Civil Serv. Com'n., 483 F.Supp. 539,
562-574 (S.D.N.Y. 1980).
The First Amendment guarantees all citizens the right to petition the
government for a redress of grievances. U.S. Const., Amend. I. This right is a
fundamental concept of liberty. McDonald, 472 U.S. at 482. When the
government, through its action denies a citizen of such a fundamental right, it may do so
only if the action is narrowly tailored to serve a compelling government interest. See
Reno v. Flores, 507 U.S. 292 (1993); Brown v. Hartlage, 456 U.S. 45, 53-4
(1982); Steelworkers v. Sadlowski, 457 U.S. 102, 111 (1982); Murgia, 427
U.S. at 312. The burden of proof in such a case is upon the government. Id.
Fundamental rights are those explicit or implicitly derived from the constitution
itself. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,
33-34 (1973).
The outright rejection of Mr. Olsens rescheduling petition,
without considering the evidence presented and without following statutorily mandated
procedure denied the petitioner his First Amendment right to petition the
government. Steelworkers, 457 U.S. at 111. The actions taken by the
D.E.A. were not narrowly tailored and do not serve any compelling government
interest. See Id. Administrative economy does not justify a
complete refusal of the procedural process mandated by Congress. See Schneider
v. State, 308 U.S. 147,164 (1939). The administrator was required to seek
medical and scientific advice from the secretary of H.H.S. 21 U.S.C. §811. If, as
respondents previously argued, Mr. Olsens petition was denied on the grounds that it
was procedurally defective, the Deputy Administrator should not have made scientific
observations in his Final Order denying Mr. Olsens petition. NORML, 559
F.2d at 757. The D.E.A.s desire to prevent additional hearings and
reconsideration of the rescheduling of marijuana is not a compelling government interest
which justifies the D.E.A.s violation of Mr. Olsens First Amendment
rights. See Id.
While the right to petition does not require that everyone should have a
direct voice in all actions taken by our government, this court has recognized that where,
as here, a government body has either by its own decision or under statutory command
determined to open its decision making process to public view and participation, the right
to petition for redress is fundamental. Madison School Dist. v. Wisconsin
Employment Comm., 429 U.S. 178, 179 (1976); San Filippo v. Bongiovanni, 30 F.3d
424,442 (3rd. Cir. 1994). Congress has mandated that public participation in the
process by which drugs and other substances are controlled and scheduled is of paramount
importance. See NORML, 559 F.2d at 757. Congress has expressly
stated that interested citizens have a right to petition the D.E.A. for rescheduling of a
drug. Id. By denying the petitioner his right to meaningfully present a
petition, the D.E.A. has denied him of this fundamentally important First Amendment
right. See Madison, 429 U.S. at 179. By depriving Mr. Olsen and
others this right, the D.E.A. has violated the critical function of enabling a self
governing people to both inform the government and to check abuses of government
power. McDonald, 472 U.S. at 485.
III. |
This Court should grant certiorari to
consider if the denial of Mr. Olsens petition, without regard to the statutory
process mandated by Congress, denied Mr. Olsens right to procedural due process. |
The Due Process clause guarantees that where the government deprives a
citizen of a fundamental right, the citizen is guaranteed a fair procedure by which they
may seek redress. Bongiovanni, 30 F.3d at 442. Where an agency, such as
the D.E.A., significantly burdens a citizens fundamental rights, it must at least
assure accuracy and avoid arbitrariness. Id. Generally, the minimum
process due in such a case is notice and the opportunity for hearing. Doe,
483 F.Supp. at 572.
The arbitrary and capricious manner with which the Deputy Administrator
denied Mr. Olsens petition, denied Mr. Olsen of his constitutional right to
procedural due process. See Id. The illogical and unreasonable manner
in which Mr. Olsens petition was denied deprived him of his right present new
evidence. 21 U.S.C. §811(a). The Congressional purpose of the statute under
which Mr. Olsen was permitted to petition would be destroyed if the D.E.A. is allowed to
summarily dismiss each petition without meaningful consideration of the evidence
presented. NORML, 559 F.2d at 757.
Indicative of its history of contempt towards challenges to marijuana
regulation, the D.E.A. has been quick to point out that petitioner has "frequently
litigated issues related to the legal treatment of marijuana." See
Respondents Breif (33a); See e.g., Olsen v. Drug Enforcement Admin.,
878 F.2d 1458, 1461-1465 (D.C.Cir. 1989), cert. denied, 495 U.S. 906 (1990);
Olsen v. Iowa, 808 F.2d 652, 653 (8th Cir. 1986); United States v. Rush, 738
F.2d 497, 511-513 (lst Cir. 1984), cert. denied, 470 U.S. 1004 (1985); State v.
Olsen, 315 N.W.2d 1, 7-9 (Iowa 1982); Olsen v. Drug Enforcement Admin., 776
F.2d 267, 268 (llth Cir. 1985), cert. denied, 475 U.S. 1030 (1986).
Judicial review pursuant to the Administrative Procedures Act
encompasses a courts evaluation of the constitutionality of an agencys
conduct. Doe, 483 F.Supp. at 572. The Congress, in its wisdom, set up a
provision whereby any interested party could petition for rescheduling based upon changed
circumstances or new evidence. 21 U.S.C. §811(a). The scheduling of synthetic
THC in schedule II and the evidence presented by petitioner, that H.E.W. views marijuana
and synthetic THC to be one and the same, is exactly the type of new evidence which the
administrator is required to consider. NORML, 559 F.2d at 754. While
the D.E.A. may feel that petitioner is committing a wrongful act by exercising his
constitutional right to petition the government, he is in fact assisting the government by
employing the mechanism Congress expressly provided: rescheduling based upon the careful
consideration of new evidence as it arises. Id.
IV. |
This Court should grant certiorari to
consider if the D.E.A.s denial of Mr. Olsens petition constitutes an invasion
of privacy in that the D.E.A. is interfering with sensitive medical decisions without
proper constitutional justification. |
The right to make personal medical decisions has been held fundamental
to a citizens liberties under the substantive component of the Due Process Clause of
the Fifth Amendment. Casey, 112 S.Ct. at 2805. This clause assures the
citizenry that any deprivation of life liberty or property by a government entity will be
attended by the appropriate legal processes. Bowers v. Hardwick, 478 U.S.
186, 192 (1986). This Court has found that the Due Process clause of the Fifth Amendment
has substantive content, subsuming rights that are, to a great extent, immune from
government regulation or proscription. Id. at 191. These cases have
recognized implied rights that have little or no textual support in the constitutional
language. Id. The rights which qualify for heightened judicial
protection include fundamental liberties so implicit in the concept of ordered liberty
that neither liberty nor justice would exist if they were sacrificed. Palko v.
Connecticut, 302 U.S. 319, 325-24 (1937). Fundamental liberties have also been
described as those that are deeply rooted in this nations history and tradition. Moore
v. City of East Cleveland, 431 U.S. 479,506 (1965)(White,J., concurring). The
government may not infringe upon a fundamental liberty unless the infringement is narrowly
tailored to serve a compelling government interest. See Reno, 507 U.S.
292.
The right to privacy has been found to encompass personal decisions
relating to marriage, family, and education. See Carey v. Population
Services Intl, 431 U.S. 678, 684-85 (1977). While the constitution does
not include any explicit mention of the right to privacy, this right has been judicially
recognized. Carey, 431 U.S. at 684. In previous decisions, courts have
found that smoking marijuana was not a fundamental right because it did not involve any
important values inherent in questions involving marriage, procreation or child
rearing. See, NORML v. Bell, 488 F.Supp. 123, 133 (D.D.C. 1980).
While smoking marijuana itself may not be a fundamental right, the right to choose
appropriate medication involves the right of every human being of sound mind and adult
years to determine what should or should not be done with their own body. Casey,112
S.Ct. at 2807; Whalen v. Roe, 429 U.S. 599,600 (1977); Schloendorff v. Society
of New York Hosp., 211 N.Y. 125, 129 (1914). In the context of the medical use
of marijuana, privacy rights are implicated.
In our system of a free government, where notions of individual autonomy
and free choice are cherished, it is the individual who must have the final say in respect
to decisions regarding his medical treatment in order to insure that the greatest possible
protection is accorded his autonomy and freedom from unwanted interference with the
furtherance of his own desires. Rivers v. Katz, 67 N.Y.2d
485,493(1986). This court has repeatedly recognized that the Constitution places
limits on government interference with a persons most basic decisions about bodily
integrity. See e.g., Casey, 431 U.S at 684; Roe v. Wade
410 U.S. 113,152 (1973).
By foreclosing the rescheduling process, the D.E.A.s decision
amounts to government intrusion in matters involving the most intimate and personal
choices a patient may make in a lifetime, choices central to personal dignity and autonomy
and which are central to the liberty protected by the Fifth Amendment. U.S. Const.
Amend IX; Casey 211 S.Ct. at 2807.
Because fundamental personal liberty interests are involved, they may
not be abridged by the government simply on a showing that a regulatory statute has some
rational relationship to the effectuation of a proper government purpose. Poe v.
Ullman, 367 U.S. at 543. Where there is a significant encroachment upon personal
liberty, the government may prevail only upon showing a subordinate interest which is
compelling. Bates v. City of Little Rock, 361 U.S. 516, 524 (1960). The
law must be shown to be necessary and not merely rationally related to the accomplishment
of a permissible government policy. McLaughlin, v. State of Florida, 379 U.S.
184,196 (1964 ) ; See e.g., Schneider, 308 U.S. at 161. Because
the D.E.A. is unable to show any compelling purpose which is served by differentiating
between the THC found in a plant and the same exact THC encapsulated in sesame oil and
gelatin, the order refusing to reschedule marijuana to schedule II should be struck down
because it unnecessarily infringes on medical THC users privacy rights. Casey,
112 S.Ct. at 2805.
The Due Process clause of the Fifth Amendment requires that federal
legislation satisfy the same standards of equal protection of the law that are guaranteed
by the Fourteenth Amendment. See Buckley v. Valeo, 424 U.S. 1, 93
(1976). Equal protection analysis in the Fifth Amendment area is the same as that
under the Fourteenth Amendment. Bolling v. Sharpe, 347 U.S. 497,450
(1954). It has long been recognized that when the government treats two classes of
citizens differently under the law, the government must demonstrate that such dissimilar
treatment is at least rationally related to a legitimate government purpose. City
of Cleburne v. Cleburne Living Ctr., Inc. 473 U.S. 432, 440 (1985); Hooper v.
Bernalillo County Assessor, 472 U.S. 612 (1985); Plyer v. Doe, 457 U.S. 202,
216 (1982).
The arbitrary distinction drawn by D.E.A. between a legal user of
synthetic THC and an illegal user of natural THC is not rationally related to any
legitimate government purpose. NORML, 488 F.Supp. 134. The distinctions
drawn by the D.E.A. with respect to the THC found in schedule I and the same THC found in
schedule II must bear some rational relation to controlling psychotropic substances.
Hooper, 472 U.S. at 618. The synthetic THC found in schedule II is
structurally the same as the THC found naturally in marijuana. See, 51 Fed.
Reg. 17,476. The only difference between the THC in schedule I and the THC in
schedule II is that the substance in schedule II is encapsulated in gelatin and sesame
oil. This distinction should be set aside as violative of the Equal Protection
Clause because it is based on reasons totally unrelated to the pursuit of controlling
substances. See 51 Fed. Reg. at 17,476; Hooper, 472 U.S. at 619-20; NORML,
488 F.Supp. at 134. McDonald v. Board of Election Commissioners, 394 U.S.
803,809 (1969).
This Court has held that where, as here, the legislative facts on which
a classification is based could not reasonably be conceived to be true by the governmental
decision maker the classification cannot be said to be rationally related to a legitimate
government purpose. Vance v. Bradley, 440 U.S. 93, 111 (1979). The
D.E.A. cannot reasonably believe distinguishing between a substance coated in gelatin and
sesame oil and one that is not, will prevent the abuse of the substance. See
51 Fed. Reg. 17476. Furthermore, both the courts and the D.E.A. have previously
found that THC is the only reason the marijuana plant is controlled in schedule I. Walton,
514 F.2d at 204 n.12. As the Appeals Court noted in 1991, one of the very purposes
in placing a drug in schedule I is to raise significant barriers to prevent doctors from
obtaining the drugs too easily. A.C.T., 930 F.2d at 940. Now that the
same substance which D.E.A. sought to prevent doctors from obtaining is a legally
prescribable substance, in schedule II, the purpose no longer exists. 21
U.S.C.§811(a). To doggedly refuse to reschedule the marijuana plant to schedule II
is a decision not rationally related to controlling THC and does not serve the purpose of
drug abuse prevention. See Walton, 514 F.2d at 204.
Where a decision is predicated upon a particular state of facts, it can
also be challenged by showing the Court that those facts are no longer true. See
Abie State Bank v. Bryan, 282 U.S. 765 (1931). In a prior decisions, courts
have noted that Congresss original placement of marijuana in schedule I was premised
upon the fact that H.E.W. recommended it be placed there. Bell, 488 F.Supp.
134. The letter from H.E.W. suggesting that synthetic marijuana, which H.E.W. has
placed in schedule II, is no different than the natural THC found in schedule I, coupled
with the D.E.A.s own recognition that both synthetic THC and natural THC are
the same substance, should demonstrate to this court that the facts upon which marijuana
was placed in schedule I have ceased to exist. (24a)
As previously noted, a drug must meet five criteria to remain in
schedule I. 21 U.S.C. §811(a). The most contested of these criteria is the
requirement that the substance does not have an accepted medical use. A.C.T,
930 F.2d at 936. Like the coca and opium plants, the marijuana plant is now
recognized as the source of a compound which is utilized as the basis of a useful
medication. 51 Fed. Reg. 17476. The THC isomer, which has been judicially
recognized as the ingredient which originally caused marijuana to be placed in schedule I,
is now the source of a prescription drug. Id. F.D.A. approval of a drug
is sufficient to establish the existence of an accepted medical use. A.C.T. v.
D.E.A., 930 F.2d 936 (1991); Grinspoon , 828 F.2d at 891-92. Furthermore,
the F.D.A.s study and testing of this substance, in order to give it the status of a
new drug application, certainly satisfies the five criteria the D.E.A. must follow in
determining accepted medical use. Id. All of these factual changes
demonstrate that the D.E.A. based its decision not to reschedule marijuana, or even to
hold hearings to consider new evidence, on moot and outdated information. See
Bell 488 F.Supp. at 135-136. Therefore, the decision is no longer
rational. Id.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should
be granted.
Respectfully submitted,
Lawrence Elliott Hirsch*
Allison Kubiak
Joel Ian Herzfeld
Lawrence Elliott Hirsch & Associates
Counselors At Law, P.C.
1700 Sansom Street
Suite 501
Philadelphia, Pennsylvania 19103
(215) 496-9530
LEH36@aol.com
*Counsel of Record
December __, 1996
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