US Court Rules Against Reclassification of Marijuana

Wednesday, January 23, 2013

US Court Rules Against Reclassification of Marijuana

The U.S. Court of Appeals ruled in favor of the DEA who claimed medical marijuana studies have not been “scientifically rigorous”, Americans For Safe Access vowed to appeal.

Activist Post

The United States Court of Appeals for the D.C. Circuit issued a ruling today in the medical marijuana reclassification case, Americans for Safe Access v. Drug Enforcement Administration. In a 2-1 decision, the Court granted standing in the case — the right to bring a claim against the federal government — but denied the legal challenge on the merits, agreeing with the government’s assertion that “adequate and well-controlled studies” on the medical efficacy of marijuana do not exist.

“To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise,” said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), the country’s leading medical marijuana advocacy organization, which appealed the denial of the rescheduling petition in January of last year. “The Court has unfortunately agreed with the Obama Administration’s unreasonably raised bar on what qualifies as an ‘adequate and well-controlled’ study, thereby continuing their game of ‘Gotcha.'”

ASA intends to seek En Banc review by the full D.C. Circuit and,necessary, the organization will appeal to the U.S. Supreme Court. ASA intends to argue that the Obama Administration has acted arbitrarily and capriciously by using continually changing standards of “medical efficacy” in order to maintain marijuana as a Schedule I substance, a dangerous drug with no medical value. The government now contends that Stage II and III clinical trials are necessary to show efficacy, while ASA has consistently argued that the more than 200 peer-reviewed studies cited in the legal briefs adequately meet this standard.

In 2002, the Coalition for Rescheduling Cannabis, made up of several individuals and organizations including ASA, filed a petition to reclassify marijuana for medical use. That petition was denied in July 2011, after ASA sued the Obama Administration for unreasonable delaying the answer. The appeal to the D.C. Circuit was the first time in nearly 20 years that a federal court has reviewed the issue of whether adequate scientific evidence exists to reclassify marijuana.

“The Obama Administration’s legal efforts will keep marijuana out of reach for millions of qualified patients who would benefit from its use,” continued Elford. “It’s time for President Obama to change his harmful policy with regard to medical marijuana and treat this as a public health issue, something entirely within the capability and authority of the executive office.”

Patient advocates claim that marijuana is treated unlike any other controlled substance and that politics have dominated over medical science on this issue. Advocates point to a research approval process for marijuana, controlled by the National Institute on Drug Abuse (NIDA), which is unique, overly rigorous, and hinders meaningful therapeutic research. ASA argues in its appeal brief that the DEA has no “license to apply different criteria to marijuana than to other drugs, ignore critical scientific data, misrepresent social science research, or rely upon unsubstantiated assumptions, as the DEA has done in this case.”

ASA will continue to put pressure on the Obama Administration, but will also be lobbying Members of Congress to reclassify marijuana for medical use. A new comprehensive public health bill on medical marijuana is expected to be introduced soon in Congress, and ASA is holding a national conference in February to support its passage. (Source)

Read the full ruling below:

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13submissions on standing to fulfill the obligation of the court todetermine whether the requirements of Article III have beenmet. Circuit Rule 28(a)(7) does not preclude this, nor does thelaw of the circuit. The reason is clear. Circuit Rule 28(a)(7)says only
that “[w]
the appellant’s or petitioner’
s standingis not apparent from the administrative record, the brief mustinclude arguments and evidence establishing the claim of
D.C. C
. R. 28(a)(7). This language is hardly freefrom ambiguity
because what may be “apparent from theadministrative record” to one reasonable person
may seemless clear to another. And some parties may be unsurewhether to explore every conceivable avenue of standing inthe first instance in light of the admonition in
Sierra Club
cautioning advocates
to submit only “a
recitation of
the basis [for standing].” 292 F.3d at 901 (emphasis added)
see also

Am. Library Ass’
, 401 F.3d at 494 (noting that a
“gotcha” construction of Circuit Rule 28(a)(7) and

“is inconsistent with our precedent and would have the
undesirable effect of causing parties to include long jurisdictional statements in practically all opening briefs forfear that the court might find their standing less than self-
So it is hardly surprising that it sometimes happens,as it did in this case, that a party advances plausiblearguments and offers concrete evidence in support of standingin its opening brief, reasonably assuming that nothing more isnecessary, and the members of the panel still have questions.In such circumstances, as our case law shows, the court actswith prudence in applying Circuit Rule 28(a)(7) and indetermining whether supplemental submissions are necessary.That is what was done in this case.2.
The Elements of Standing in this Case

Petitioners’ strongest theory of standing is that Krawitz,
a veteran of the United States Air Force, is harmed by the

DEA’s cont
inued classification of marijuana as a Schedule Idrug because it deprives him of services that he is entitled toreceive free of charge from the VA. The record indicates that,as a condition of his pain management treatment, Krawitz wasasked by VA offici
als to sign a “Contract for ControlledSubstance Prescription” that would prohibit him from,
inter alia
, using medical marijuana.
Supp. Krawitz Aff. ¶ 7;
Krawitz Aff. Ex.1. Krawitz claims that, because herefused to sign this contract, he is now required to seek paintreatment outside the VA system.
Supp. Krawitz Aff. ¶¶8-10. Petitioners also contend that Krawitz suffers injurybecause a separate VA policy forces him to pay for a non-VAphysician in Oregon to obtain the referral forms required to
participate in that state’s medical marijuana program.
See id.
¶¶ 11-15. Petitioners argue that both of these injuries are
caused by the DEA’s continued decision to classify marijuana
as a Schedule I drug and would be redressed by a favorabledecision from this court. In response, the Government arguesthat Petitioners cannot prove redressability because theirconclusion that rescheduling will result in any relief from theVA is too speculative.The first element of the

irreducible constitutionalminimum of standing

is injury in fact, meaning

an invasionof a legally protected interest which is (a) concrete andparticularized, and (b) actual or imminent, not conjectural orhypothetical

Defenders of Wildlife
, 504 U.S. at 560(citations omitted) (internal quotation marks omitted).Petitioners clearly establish injury in fact here andRespondents do not seriously question it. As a veteran,Krawitz is entitled to free medical care from the VA system.This care normally includes the

[c]ompletion of forms . . . byhealthcare professionals based on an examination orknowledge of the veteran

s condition
38 C.F.R.§ 17.38(a)(1)(xv) (2012). This policy is implemented by VHA

15Directive 2008-071, which states that

clinicians must honorall requests by patients for completion of non-VHA medicalforms
Supp. Krawitz Aff. Ex. 2. However, pursuant to VHADirective 2011-004:

It is VHA policy to prohibit VAproviders from completing forms seeking recommendationsor opinions regarding a Veteran

s participation in a Statemarijuana program
Supp. Krawitz Aff. Ex. 1. Thus, toparticipate in Oregon

s medical marijuana program, Krawitzconsults with a non-VA physician in Oregon at an annual costof approximately $140.00.
Supp. Krawitz Aff. ¶ 15. Inbeing forced to pay out-of-pocket for care that he couldotherwise receive freely from the VA system, Krawitz clearlysuffers an




injury to his

legallyprotected interest

Defenders of Wildlife
, 504 U.S. at 560;

, 682 F.3d at 83 (holding that

procedural violationsthat threaten an individual

s ability to obtain Medicaidcoverage of prescription medications

constitute injury infact).Beyond injury in fact, we must determine whether
Krawitz’s injuries
have been caused by the DEA

s decision tocontinue listing marijuana as a Schedule I drug and whetherthere is a

substantial probability

that the relief requestedwould redress the injury.


l Wrestling Coaches Ass

,366 F.3d at 944. The modest complexity of these questionsarises from the fact that the agency action challenged byPetitioners

the DEA

s continued classification of marijuana as a Schedule I drug

is not the direct cause of Krawitz

s injury. Rather, his injury is caused by the actions of the VA system, which has decided as a matter of policy not toassist patients in obtaining substances illegal under federallaw. This court has addressed standing under analogouscircumstances in at least four previous decisions. In thosecases, we looked for whether

the record presented substantialevidence of a causal relationship between the government

16policy and the third-party conduct, leaving little doubt as tocausation and the likelihood of redress

at 941. In two of those decisions, we found standing. In the other two, wedenied standing. This case more strongly resembles theformer two.In
Block v. Meese
, 793 F.2d 1303, 1308 (D.C. Cir. 1986),the plaintiff

s company owned exclusive distribution rights toa film that the Justice Department classified as

The plaintiff alleged injury to his economicinterests because the classification deterred potentialcustomers.
To support this assertion, the plaintiff submitted declarations and affidavits from potential customerswho were dissuaded from purchasing the film because of itsstatus as


We held that there was sufficientfactual evidence on the record to establish that the harm was

attributable to the classification.

Tozzi v. U.S. Department of Health and HumanServices
, 271 F.3d 301 (D.C. Cir. 2001), a manufacturer of PVC plastic challenged a decision by the Secretary of Healthand Human Services to list dioxin, a chemical releasedthrough the incineration of PVC plastic, as a


carcinogen. Though this triggered no new federal regulation,the manufacturer sued on the theory that the classification hadprompted state and local entities to regulate to the detrimentof the manufacturer.
at 309. Looking carefully at therecord, we found several reasons to conclude that thegovernment action was

at least a substantial factormotivating the third parties


at 308. We notedthat Congress intended the Secretary

s determination

toserve as the federal government

s authoritative statement onthe current state of knowledge regarding the carcinogenicityof various chemicals

at 309 (citing H.R. R

. 95-1192, at 28 (1978) (describing the Secretary

s list as a


comprehensive document


all known orsuspected carcinogenic agents

)). We also noted that theSecretary

s list of carcinogens

is widely disseminated andhighly influential,

and we pointed to several localgovernment restrictions on the use of PVC plastic thatexplicitly cited the Secretary

s determination that dioxin is a


We also found it significant that theterm



inherently pejorative and damaging,

noting that this increased the probability of an economicallyharmful third party response.
In at least two other cases, we have denied standing whena non-party

s conduct was the most direct cause of the allegedinjury. In
National Wrestling Coaches Ass
, 366 F.3d at 933,

several membership organizations that represent[ed] theinterests of collegiate men

s wrestling coaches, athletes, andalumni

challenged the government

s Title IX enforcementpolicy, alleging that it had caused several schools to canceltheir men

s wrestling programs. We denied standing,reasoning that the plaintiffs

offer[ed] nothing but speculationto substantiate their claim that a favorable decision from thiscourt [would] redress their injuries by altering these schools

independent decisions

at 937. And in
Renal Physicians Ass

n v. U.S. Department of Health & Human Services
, 489F.3d 1267 (D.C. Cir. 2007), a medical association challengeda government regulation that allegedly depressed theircompensation for in-house patient referrals. Once again, thiscourt denied standing, concluding it was




that rescinding the regulation would increase the rateof compensation.
at 1277.Turning to the facts of this case, the causation element issatisfied because Krawitz

s injury is fairly traceable to theGovernment

s decision to continue listing marijuana as aSchedule I drug. As with the statute in
, Congress made

18clear when it passed the CSA that the agency

s schedulingdecisions should serve as the federal government


authoritative statement

on the legitimacy of particularnarcotics and dangerous drugs. 271 F.3d at 309. The HouseReport for the CSA explains that Congress had alreadyenacted

more than 50 pieces of legislation

relating to theregulation of dangerous drugs. H.R. R

. 91-1444,
reprinted in
1970 U.S.C.C.A.N. 4566, 4571. Congressintended the CSA and its scheduling program to

collect[] andconform[] these diverse laws in one piece of legislation

Furthermore, the Government

s classification of marijuanaunder Schedule I is

inherently pejorative

, 271 F.3d at309. Under the terms of the Act, a Schedule I drug

has a highpotential for abuse,

has no currently accepted medical use,

and has

a lack of accepted safety for use
21 U.S.C.§ 812(b)(1). When the DEA classified marijuana as aSchedule I drug, pursuant to its delegated authority under theCSA, it announced an authoritative value judgment that surelywas meant to affect the policies of third-party federalagencies.Unsurprisingly,
the VA has heeded the DEA’s
judgmentregarding marijuana, thus making the question of causationrelatively easy in this case. The record before the court clearlyshows that the VA

s refusal to complete Krawitz

s medicalmarijuana forms is traceable to the DEA

s continued decisionto classify marijuana as Schedule I. VHA Directive 2011-004,which prohibits VA providers from completing state medicalmarijuana forms, cites three times to marijuana

s Schedule Istatus.
Supp. Krawitz Aff. Ex. 1. Indeed, compliance withthe CSA is the only justification the Directive cites for thispolicy.
See id.

[VA] providers must comply with all Federallaws, including the Controlled Substances Act. Marijuana isclassified as a Schedule I drug under the ControlledSubstances Act
). In light of this evidence, the Government,



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