Well, Suzanne Sisley (now) is over. As we reported last year, Sisley et al. v. The United States Drug Enforcement Administration, etc., Case No. 20-71433, is an appeal case filed by a group of scientists and veterans who sued DEA in May 2020. They, like many others, believe that the DEA’s legal basis for classifying marijuana as a Schedule I drug is unconstitutional — raising questions about the DEA’s reliance on scheduling standards, which are not only arbitrary but also allegedly against Misunderstanding of federal law.
Interestingly, last summer, the Ninth Circuit Court of Appeals issued an order dismissing the DEA’s motion to dismiss the petitioner’s lawsuit on the grounds that administrative remedies have not been exhausted. In short, the exhaustion of remedies principle requires seeking and “exhausting” administrative or other non-judicial avenues before entering the court system. Based on this principle, the court regularly dismissed these petitions and left the issue to the DEA, which has continued its long-standing practice of largely ignoring any and all petitions to rearrange cannabis for decades. At the time, the Ninth Circuit tended to review Sisley’s arguments, a fact that was a sign of progress.
After many delays and supplementary briefings, the oral debate was held on June 10, 2021. This week, the court issued an opinion, dismissing the lawsuit-waiting-Sisley failed to exhaust administrative remedies. The opinion pointed out:
“Article 811(a) obliges the Minister of Justice to arrange, reschedule, or remove drugs or other substances from the arrangement by making rules. As we mentioned above, such litigation “can be initiated by the Attorney General (1),” 2) Initiated at the request of the Minister of Justice. [HHS] Secretary, or (3) At the petition of any interested party. “21 USC § 811(a) (emphasis added). Therefore, Congress specifically authorizes individuals to petition the DEA (rather than directly to the court) to arrange, reschedule, or remove a substance.”
It is not clear what Sisley will do next. They have several options, including submitting their own DEA application and restarting the process, applying for a retrial, or appealing to the US Supreme Court; but this is the end of the anti-climax of a promising case. The glimmer of hope for the industry comes from the consensual opinion of Judge Paul Watford, which suggests that Sisley may win if the merits are considered:
“I agree that the petitioner in this case failed to exhaust his administrative remedies, and therefore agree to the court’s dismissal of his review petition. I also wrote to point out that, in appropriate circumstances, taking into account the petitioner’s arguments, the agency mistakenly Explaining the control regulations, it was concluded that marijuana “has no medical use currently accepted in the United States.” “
This is certainly not the victory we hope for, but we will keep an eye on any developments that further demonstrate the need to change sooner or later.