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Washington v. Sessions

United States District Court, S.D. New York

February 26, 2018

MARVIN WASHINGTON, et al., Plaintiffs,
v.
JEFFERSON BEAUREGARD SESSIONS, III, et al., Defendants.

          OPINION AND ORDER GRANTING MOTION TO DISMISS

          ALVIN K. HELLERSTEIN, U.S.D.J.

         Plaintiffs Marvin Washington, Dean Bortell, Alexis Bortell, Jose Belen, Sebastien Cotte, Jagger Cotte, and the Cannabis Cultural Association, Inc. ("Plaintiffs") filed this action on July 24, 2017. Broadly stated, plaintiffs assert an as-applied constitutional challenge to the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., which classifies marijuana as a Schedule I drug-the highest level of drug classification. Plaintiffs attempt to demonstrate the CSA's constitutional infirmity in a number of ways, but the graveman of the complaint is that the current scheduling of marijuana violates due process because it lacks a rational basis.

         On September 8, 2017, plaintiffs moved the Court for an order to show cause why a temporary restraining order should not issue. The Court denied plaintiffs' motion that same day, and issued a summary order confirming that result on September 11, 2017. See Order Denying a Temporary Restraining Order, ECF 26. After initially indicating a willingness to proceed into discovery, the Court reconsidered and entered a briefing schedule advancing defendants' motion to dismiss the complaint, see Order, ECF 33, filed October 13, 2017 under Federal Rules 12(b)(1) and 12(b)(6). The Court held oral argument on February 14, 2018. For the reasons discussed in this opinion, the defendants' motion to dismiss the complaint is granted.

         Background

         In response to President Nixon's "war on drugs, " Congress passed the Comprehensive Drug Abuse and Control Act of 1970. Gonzales v. Raich, 545 U.S. 1, 10 (2005). "Title II of the Act, codified at 21 U.S.C. § 801 et seq., is the Controlled Substances Act ('CSA'), and it 'repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs."' United States v. Green, 222 F.Supp.3d 267, 271 (W.D.N.Y. 2016) (quoting Raich, 545 U.S. at 7, 12). Congress made a number of findings associated with the CSA, including that "[t]he illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." 21 U.S.C. § 802(2).

         "The Act covers a large number of substances, each of which is assigned to one of five schedules; this statutory classification determines the severity of possible criminal penalties as well as the type of controls imposed." United States v. Kiffer, 477 F.2d 349, 350 (2d Cir. 1973); see also 21 U.S.C. § 812(a). When the CSA was enacted, Congress classified marijuana as a Schedule I drug. "This preliminary classification was based, in part, on the recommendation of the Assistant Secretary of [the Department of Health, Education, and Welfare] that marihuana be retained within schedule I at least until the completion of certain studies now underway." Raich, 545 U.S. at 14 (internal quotation marks omitted). In order to fall within Schedule I, Congress determined that a drug must have: (1) "a high potential for abuse, " (2) "no currently accepted medical use in treatment in the United States, " and (3) "a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The chart below describes the CSA's various schedules and the findings required for each:

Statutory Factors

Examples

Schedule I

High potential for abuse, no currently accepted medical use in treatment, and a lack of accepted safety for use of the drug under medical supervision. See 21 U.S.C. § 812(b)(1).

Heroin, LSD, Marijuana

Schedule II

High potential for abuse, some currently accepted medical use in treatment, and abuse may lead to severe psychological or physical dependence. See 21 U.S.C. § 812(b)(2).

Morphine, Codeine, Amphetamine (Adderall ®), Methamphetamine (Desoxyn ®)

Schedule III

Potential for abuse less than substances in Schedules I and II, some currently accepted medical use in treatment, and abuse may lead to moderate or low physical dependence or high psychological dependence. See 21 U.S.C. § 812(b)(3).

Tylenol with Codeine ®, Ketamine, Anabolic Steroids

Schedule IV

Potential for abuse less than substances in Schedule III, some currently accepted medical use in treatment, and abuse may lead to limited physical or psychological dependence. See 21 U.S.C. § 812(b)(4).

Alprazolam (Xanax ®), Diazepam (Valium®)

Schedule V

Potential for abuse less than substances in Schedule IV, some currently accepted medical use in treatment, and abuse may lead to limited physical or physical dependence. See 21 U.S.C. § 812(b)(5).

Robitussin AC ®

         After placing marijuana in Schedule I, "Congress established a process for reclassification, vesting the Attorney General with the power to reclassify a drug 'on the record after opportunity for a hearing.'" Green, 222 F.Supp.3d at 271 (quoting 21 U.S.C. § 811(a)). Before beginning the reclassification process, the Attorney General must seek a scientific and medical evaluation from the Secretary of Health and Human Services ("HHS"), whose findings are binding on the Attorney General. Id. § 811(b). In the relevant implementing regulations, the Attorney General has delegated this reclassification authority to the Drug Enforcement Agency ("DEA"). See 28 C.F.R. § 0.100(b).

         The CSA also provides an avenue for interested parties to petition the DEA to reclassify drugs, consistent with the medical and scientific data provided by HHS. See 21 U.S.C. § 811 (a) (providing that the Attorney General may reclassify drugs after an on the record hearing "on the petition of any interested party"); see also 21 C.F.R. § 1308.43(a). If a petitioner receives an adverse ruling from the DEA, 21 U.S.C. § 877 provides for judicial review of the DEA's determination in the D.C. Circuit, or another appropriate Circuit:

All final determinations, findings, and conclusions of the Attorney General under this subchapter shall be final and conclusive decisions of the matters involved, except that any person aggrieved by a final decision of the Attorney General may obtain review of the decision in the United States Court of Appeals for the District of Columbia or for the circuit in which his principal place of business is located upon petition filed with the court and delivered to the Attorney General within thirty days after notice of the decision. Findings of fact by the Attorney General, if supported by substantial evidence, shall be conclusive.

         "Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug." Raich, 545 U.S. at 15. "As of 2005, the D.C. Circuit Court of Appeals had reviewed petitions to reschedule marijuana on five separate occasions over the course of 30 years, [and upheld] the DEA's determination in each instance." Green, 222 F.Supp.3d at 272. In 2011, the DEA denied a rescheduling petition, see Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 76 Fed. Reg. 40, 552 (July 8, 2011), and the D.C. Circuit upheld the DEA's determination in Americans for Safe Access v. Drug Enforcement Administration, 706 F.3d 438, 449 (D.C. Cir. 2013). The DEA denied another rescheduling petition as recently as 2016. See Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53, 767 (Aug. 12, 2016).[1]

         Discussion

         Defendants filed a motion to dismiss the complaint under Federal Rules 12(b)(1) and (b)(6). In ruling on a motion to dismiss, the court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001), as amended (Apr. 20, 2001). In order to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft, 556 U.S. at 678 (quoting Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

         A. Exhaustion and Plaintiffs' Rational Basis Claim

         Properly understood, plaintiffs have raised a collateral challenge to the administrative decision not to reclassify marijuana. As such, plaintiffs' claim premised on the factors found in Section 812 of the CSA is barred because plaintiffs failed to exhaust their administrative remedies. Even if the Court were to reach the merit of plaintiffs' rational basis claim, I hold that plaintiffs have failed to state a claim under Rule 12(b)(6).

         The parties first present a threshold question of statutory interpretation, the resolution of which illustrates that plaintiffs' claim is an administrative one, not one premised on the constitution. Plaintiffs contend that, in analyzing the rationality of the CSA, Congress should be bound by the factors set out in 21 U.S.C. § 812(b)(1), which include a finding that a drug has "no currently accepted medical use in treatment in the United States." Alternatively, defendants suggest that the Section 812 factors apply only to reclassification determinations by the Attorney General, as set forth in 21 U.S.C. § 811(a). Put differently, the question is whether the statutory factors outlined in Section 812(b)(1) are imputed into the constitutional analysis, thereby binding Congress to particular factors in conducting rational basis review.

         A fair reading of the statute reveals that the factors set out in Section 812 apply only to the Attorney General's reclassification proceedings-they do not bind Congress on rational basis review. As explained above, 21 U.S.C. § 811(a) vests the Attorney General with the authority, through his or her designated agent, to reclassify particular drugs if he or she: (1) "finds that such drug or other substance has a potential for abuse, and, " (2) "makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title." And 21 U.S.C. § 812(b) states that "[t]he findings required for each of the schedules are as follows, " and thereafter lists the three relevant factors, including, as relevant here, whether the drug has any currently accepted medical uses. Read in context with Section 811(a), it is clear that the factors listed in 21 U.S.C. § 812(b)(1) were intended to apply only to the executive officials in reclassification proceedings.

         More fundamentally, as a constitutional matter I am persuaded by the logic of the opinion of Judge Wolford of the Western District of New York in United States v. Green, who analyzed this question as follows:

It is difficult to conclude that marijuana is not currently being used for medical purposes-it is. There would be no rational basis to conclude otherwise. And if that were the central question in this case, Defendants' argument would have merit-but it is not the central question... . The issue is not whether it was rational for Congress or the DEA to conclude that there is no currently accepted medical use for marijuana-that would be the issue if a claim were brought in a circuit court challenging the DEA's administrative determination. Rather, the constitutional issue for equal ...

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