Washington v. Barr

925 F.3d 109
Court of Appeals for the Second Circuit·Decided May 30, 2019·No. Docket 18-859-cv; August Term, 2018·Published·Cited by 51 cases

Opinions

Judge JACOBS dissents in a separate opinion.

GUIDO CALABRESI, Circuit Judge:

*113This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government's classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq .See, e.g. , Krumm v. Drug Enforcement Admin. , 739 F. App'x 655 (D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin. , 706 F.3d 438 (D.C. Cir. 2013) ; Alliance for Cannabis Therapeutics v. Drug Enforcement Admin. , 15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life-or-death threat to their health. We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)'s history of dilatory proceedings. Accordingly, while we concur with the District Court's ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.

STANDARD OF REVIEW

The trial court granted Defendants' motion under Federal Rules of Civil Procedure 12(b)(1) and (6) to dismiss Plaintiffs' case. We therefore review its decision de novo , accepting as true all of the complaint's well-pleaded facts. See d'Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd. , 886 F.3d 216, 222 (2d Cir. 2018) ; Harris v. Mills , 572 F.3d 66, 71 (2d Cir. 2009).

BACKGROUND

A. Parties

As this case reaches us at the motion to dismiss stage, we must treat the well-pleaded facts alleged in Plaintiffs' complaint as true. According to their pleadings, Plaintiffs are several individuals and a membership organization with an interest in the regulation of marijuana. They assert that the classification of cannabis as a Schedule I substance under the CSA harms them in one or more ways.

Marvin Washington is an African-American businessman working in the medical marijuana space. He would like to expand his business into whole-plant cannabis products and take advantage of the federal Minority Business Enterprise Program, but, he alleges, he is impeded from so doing by the drug's scheduling.

Alexis Bortell and Jagger Cotte are children with dreadful medical problems. Bortell suffers from chronic and intractable *114seizures; Cotte from Leigh's disease. They allege that they exhausted traditional treatment options before finding success medicating with cannabis. They claim that marijuana has saved their lives. Because of its Schedule I classification, however, they cannot bring their life-saving medicine with them when they travel onto federal lands or into states where marijuana is illegal. For Bortell, these travel limitations also mean that she cannot take full advantage of the veteran's benefits to which she is entitled through her father. In addition, both Bortell and Cotte live in constant fear that their parents might be subject to arrest and prosecution for their involvement in their children's medical treatment.

Jose Belen is a veteran of the war in Iraq and suffers from post-traumatic stress disorder. After his honorable discharge, he became suicidal and was adjudged 70% disabled. He alleges that he pursued conventional therapies unsuccessfully. In despair, he turned to medical marijuana. This, he claims, has allowed him to manage his symptoms. He further asserts, like Bortell, that marijuana's Schedule I classification restricts his ability to travel and to take full advantage of his veteran's benefits.

The Cannabis Cultural Association, Inc. (CCA) is a not-for-profit organization dedicated to assisting people of color develop a presence in the cannabis industry. CCA is particularly focused on the way past convictions for possession, cultivation, distribution, and use of marijuana have disproportionately affected people of color and prevented minorities from participating in the new state-legal marijuana industry.

Defendants are the United States, the Attorney General, the Department of Justice, the Acting Administrator of the DEA, and the DEA itself. They are responsible for implementing the CSA and, more particularly, for updating the classification of controlled substances. See 21 U.S.C. § 811(a) ; 28 C.F.R. § 0.100(b).

B. Proceedings below

Plaintiffs initiated the instant suit in the Southern District of New York in July 2017 and filed the amended complaint now at issue on September 6, 2017. Plaintiffs raised numerous arguments for re- or descheduling marijuana, including, as relevant to this appeal, (a) that the classification of marijuana as a Schedule I drug exceeded Congress's powers under the Commerce Clause and was without a rational basis, (b) that the classification was arbitrary and capricious, (c) that marijuana's inclusion in the CSA was racially animated and is an act of viewpoint discrimination, and (d) that the law, as applied to Plaintiffs, violates variously their (or, in CCA's case, its members') First, Fifth, and Ninth Amendment rights, including, inter alia , substantive due process and the fundamental right to travel.

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Washington v. Barr, 925 F.3d 109 (2d Cir. 2019).

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