Working to Reform Marijuana Laws Legal Brief Bank GETTMAN V. DEA - GOVERNMENT RESPONSE The Rescheduling of Marijuana Under Federal Law Government’s Reply Brief FOR ORAL ARGUMENT MARCH 19, 2002 No. 01-1182 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT JON GETTMAN AND HIGH TIMES MAGAZINE, Petitioners v. DRUG ENFORCEMENT ADMINISTRATION, Respondent PETITION FOR REVIEW OF A FINAL DETERMINATION OF THE DRUG ENFORCEMENT ADMINISTRATION DENYING A PETITION TO INITIATE RULEMAKING PROCEEDINGS BRIEF FOR THE RESPONDENT MICHAEL CHERTOFF Assistant Attorney General ROSE A. BRICENO Trial Attorney Narcotic and Dangerous Drug Section U.S. Department of Justice 10th and Constitution Ave., N.W. Criminal Division Bond Building Washington, D.C. 20530 (202) 616-5580 The National Organization for the Reform of Marijuana Laws (www.norml.org) 1 6/24/2003 Working to Reform Marijuana Laws DANIEL DORMONT Senior Attorney Drug Enforcement Administration Washington, D.C. 20537 (202) 307-8010 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici: The parties to the administrative proceedings and in this Court are the petitioners, Jon Gettman and High Times Magazine, and the respondent, the Drug Enforcement Administration. B. Ruling Under Review: The ruling under review is a March20, 2001 letter issued by Donnie R. Marshall, then-Administrator, Drug Enforcement Administration, denying a petition to initiate rulemaking proceedings.The letter was reproduced in the Federal Register.66 Fed. Reg. 20,038 (April 18, 2001). C. Related Cases: The undersigned is not aware of any related cases. [signed] Daniel Dormont Attorney. TABLE OF CONTENTS (Page) CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES (ii) JURISDICTIONAL STATEMENT (1) STATEMENT OF THE ISSUES (1) STATEMENT OF THE CASE (2) I. STATUTORY AND REGULATORY FRAMEWORK (2) II. PROCEEDINGS BELOW (5) SUMMARY OF THE ARGUMENT (6) ARGUMENT (9) I. STANDARDS OF REVIEW (9) The National Organization for the Reform of Marijuana Laws (www.norml.org) 2 6/24/2003 Working to Reform Marijuana Laws II. THE SCHEDULING OF MARIJUANA IS NO MORE OR LESS TENTATIVE THAN THAT OF ANY OTHER CONTROLLE SUBSTANCE (12) III. THE ADMINISTRATOR PROPERLY CONDUCTED THE EIGHT-FACTOR ANALYSIS SET FORTH IN 21 U.S.C. 811(c} (14) IV. THE ADMINISTRATOR’S DETERMINATION THAT MARIJUANA HAS A HIGH POTENTIAL FOR ABUSE WAS MADE IN ACCORDANCE WITH THE CSA AND IS SUPPORTED BY SUBSTANTIAL EVIDENCE (17) V. THE ADMINISTRATOR'S DETERMINATION THAT MARIJUANA HAS NO CURRENTLY ACCEPTED MEDICAL USE IN TREATMENT IN THE UNITED STATES IS SUPPORTED BY SUBSTANTIAL EVIDENCE (23) VI. UNDER THE CSA, A SCHEDULE I CONTROLLED SUBSTANCE THAT CONT1NUES TO HAVE NO CURRENTLY ACCEPTED MEDICAL USE IN TREATMENT IN THE UNITED STATES, AND A POTENTIAL FOR ABUSE SUFFICIENT TO WARRANT CONTROL, MUST REMAIN IN SCHEDULE I (27) VII. UNDER THE CSA RESCHEDULING PROVISIONS, RULEMAKING PROCE_DINGS, AND HEARINGS THEREON, ARE NOT INITIATED UNLESS THE ADMINISTRATOR DETERMINES THAT THERE IS SUBSTANTIAL EVIDENCE TO WARRANT RESCHEDULING OF A CONTROLLED SUBSTANCE (36) TABLE OF CONTENTS (continued) (Page) CONCLUSION (39) CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases: (Pages) Alliance for Cannabis Therapeutics V." Drug Enforcement Administration, 15 F.3d 1131 (D.C. Cir. 1994) (13, 24, 26) American Horse Protection Association, Inc. v. Lyng, 812 F.2d 1 (D.C. Cir. 1987) (11) American Textile Manufacturers Institute, Inc. v. Donovan, 452 U. S. 11 90 (1981) (10) Cellnet Communication, Inc. v. Federal Communications Commission, 965 F. 2d 1106 (D. C. Cir. 1992) (11, 38) Chevron U.S.A Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)(10, 17, 29, 35, 38) The National Organization for the Reform of Marijuana Laws (www.norml.org) 3 6/24/2003 Working to Reform Marijuana Laws Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402(1971) (9) Consolo v. Federal Maritime commission, 383 U. S. 607 (1966) (10) Grinspoon v. Drug Enforcement Administration, 828 F.2d 881 (1st Gir. 1987) (24) National Customs Brokers & Forwarders Association or America, Inc. v. United States, 883 F.2d 93 (D.C. Cir.1989) (10, 11, 38) National Organization ,for the Reform of Marijuana Laws v. Drug Enforcement Administration, 559 F.2d 735 (D.C. Cir. 1977) (33-35, 37-38) National Organization for the Reform of Marijuana Laws v. Ingersoll, 497 F.2d 654 (D.C. Cir. 1974) (34) Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 121 S. Ct. 1711 (2001) (13, 21, 26, 29) United States v.' Cannabis Cultivators Club, 5 F.Supp.2d 1086 (N.D. Cal. 1998) (13) United States v. Everett, 700 F.2d 900 (3d Cir. 1983) (17) United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973) cert. denied, 414 U.S. 831 (1973) (12) TABLES OF AUTHORITIES (continued) Cases: (Paqes) United States v. Moore, 423 U.S. 122 (1975) (16) Universal Camera Corp_ v. National Labor Relations, Board, 340 U. S. 474 (1951) (10) Weinberger v. Hynson, 412 U.S. 609 (1973) (26) WorldCom, Inc. v. Federal Communications Commission, 238 F.3d 449 (D_C. Cir. 2001) (10) WWHT, Inc. v. Federal Communications Commission, 656 F.2d 807 (D.C. Cir. 1981) (11 ,38) Drug Enforcement Administration Final Orders: 66 Fed. Reg. 20,038 (April 18,2001) (notice of denial of petition to initiate rulemaking proceedings to reschedule marijuana) (ii, passim) 64 Fed. Reg. 35,928 (July 2, 1999) (final rule, transferring Marinol® , from schedule II to schedule III) (20) The National Organization for the Reform of Marijuana Laws (www.norml.org) 4 6/24/2003 Working to Reform Marijuana Laws 57 Fed. Reg. 10,499 (March 26, 1992) (final order concluding that marijuana has no currently accepted medical use and denying petition to reschedule marijuana) (13, passim) Statutes: 5 U.S.C. 553 …..(page 37) 5 U.S.C. 706 (2)…..(page 10) 21 U.S.C. 801(2)…..(page 31-32) 21 U.S.C. 802 (5)…..(page 2, 36) 21 U.S.C. 802 (6)…..(page 22) 21 U.S.C. 811…..(page 1, passim) 21 U.S.C. 812 …..(page 1, passim) 21 U.S.C. 823(f)…..(page 27,31) 21 U.S.C. 826…..(page 15) TABLE OF AUTHORITIES (continued) Statutes: 21 U.S.C. 828…..(page 15) 21 U.S.C. 829…..(page 28,29,31) 21 U.S.C. 841(a)(1)…..(page 31) 21 U.S.C. 871(a)…..(page 1) 21 U.S.C. 877…..(page 1,9) Pub. L. No. 105-277, Div. F., 112 Stat 2681 (1988)…..(page 25,33) Legislative Materials: H.R. Rep. No. 1444, 91st Cong., 2d Sess. Pt. 1 (1970), reprinted in 1970 U.S.C.C.A.N. 456…..(page 14-16, 19, 31) Regulations: The National Organization for the Reform of Marijuana Laws (www.norml.org) 5 6/24/2003 Working to Reform Marijuana Laws 21 C.F.R. 314.126 (page 26) 21 C.F.R.. 1308.11 to 1308.15 (page 3) 21 C.F.R. 1308.11(d)(27) (page 20) 21 C.F.R. 1308.43 (page 1,3,4) 21 C.F.R. 1308.44 page 4) 21 C.F.R. 1308.45 (page 4) 28 C.F.R. O.lOO(b) (page 1,3) Miscellaneous: 58 Fed. Reg. 35,460 (July 1, 1993) (delegation of authority within Department of Health and Human Services (page 3) 50 Fed. Reg. 9518 (March a, 1985) (memorandum of understanding within Department of Health and Human Services)(page 3) Brief for the Respondents in Oakland Cannabis Buyers' Cooperative, 2001 WL 173541 (Feb. 20, 2001) (page 13) JURISDICTIONAL STATEMENT In the proceedings below, the Administrator of the Drug Enforcement Administration (DEA) had jurisdiction over the petition to initiate rulemaking proceedings pursuant to 21 D.S.C. 811, 812, and 871(a), 28 C.F.R. O.100(b), and 21 C.F.R. 1308.43. The Administrator denied the petition by letter dated March 20, 2001. Appendix ("A") 416-421. The Administrator published notice of the denial of the petition in the Federal Register on April 18, 2001. 66 Fed. Reg. 20,038. Jon Gettman and High Times Magazine (petitioners) filed a timely petition for review on April 19, 2001. This Court has jurisdiction pursuant to 21 U.S.C. 877. STATEMENT OF THE ISSUES In challenging DEA's denial of their petition to initiate rulemaking proceedings to reschedule marijuana, petitioners raise the following issues: 1. Whether DEA and the Department of Health and Human Services (HHS) properly considered the eight statutory factors in 21 U.S.C. 811(0) that must be considered when evaluating a petition to reschedule a controlled substance. 2. Whether DEA's determination - that, based on the HHS scientific and medical evaluation and The National Organization for the Reform of Marijuana Laws (www.norml.org) 6 6/24/2003 Working to Reform Marijuana Laws all other relevant data, there is no substantial evidence that marijuana should be removed from schedule I - is supported by substantial evidence. 3. Whether the Controlled Substances Act (CSA) permits DEA to transfer a schedule I controlled substance to schedules III, IV, or V where DEA and HHS have determined that the drug continues to have "no currently accepted medical use in treatment in the United States" within the meaning. of the CSA. 4. Whether the CSA requires PEA to conduct a hearing whenever a person submits a petition to DEA to initiate rulemaking proceedings to reschedule a controlled substance. STATEMENT OF THE CASE I. STATUTORY AND REGULATORY FRAMEWORK When Congress enacted the CSA in 1970, it set forth the initial schedules of controlled substances in 21 U.S._. 812(c). To allow for advances in scientific understanding and changing patterns of abuse, Congress established procedures to add a drug or other substance to the schedules (control), to remove a drug or other substance from the schedules (decontrol), or to transfer a drug or other substance between schedules (reschedule).