Ex-NFL player Marvin Washington and a group of medical marijuana patients told the Second Circuit that they will attempt to get their marijuana de-scheduling lawsuit against the Drug Enforcement Administration (DEA) into the U.S. Supreme Court.
In 2017, the patients sued the DEA, arguing that marijuana was improperly classified as a Schedule I controlled substance. Schedule I drugs, which include heroin and LSD, are treated by the DEA as having a high potential for abuse and no clinical value. The patients alleged that the DEA’s scheduling of marijuana violated the Commerce Clause and the First, Fifth, and Fourteenth Amendments to the United States Constitution.
The case was dismissed by a New York federal district court in 2018, but it was later revived by the Second Circuit in May 2019. There, a circuit panel instructed the patients to petition the DEA to have them reclassify cannabis, giving them six months to do so. In addition, the panel acknowledged both medical benefits of cannabis and the risk of prosecution that patients face.
Following the Second Circuit decision, Washington and the patients argued that they needed 18 additional months to file their petitions with the DEA. This was because the patients wanted to secure a declaratory judgment in a separate action that the DEA could fully declassify marijuana. Specifically, they feared that the DEA, upon being petitioned, would reschedule marijuana as a Schedule II drug, a decision that would place numerous federal regulations on the drug that would make it more difficult and expensive to obtain. The patients supported their argument with past DEA decisions, in which the agency stated that it only has the authority to reschedule cannabis to Schedule II.
As we reported two weeks ago, the Second Circuit rejected the patients’ argument, refusing to give them more time to petition the DEA. With the six-month deadline passing in November 2019, dismissal of the entire lawsuit appeared to be imminent.
Now, Washington and the patients wrote a letter to the Second Circuit, telling the court that they have no choice but to file a petition for a writ of certiorari with the U.S. Supreme Court. The patients claim that the Second Circuit’s order will worsen the situation, reiterating their argument that a Schedule II designation would expose patients to more stringent federal regulations. In their letter, the patients said that Schedule II classification would “exacerbate the conditions afflicting our clients; would instantly throw thousands of cannabis businesses out of business; and would disrupt the lives of tens of thousands, if not millions, of Americans who rely upon cannabis daily to sustain their health, wellness, and lives.”
The odds for success for Washington and the patients at the Supreme Court appear to be very low. The Supreme Court almost always has discretion in determining whether to grant a petition for a writ of certiorari. On average, only about 1 percent of cert petitions are granted by the court. Even on the small chance that cert is granted, the patients would then have to argue and win their case on the merits. We will continue to monitor this situation.