Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., Nos. 92-1168

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore MIKVA, Chief Judge, and BUCKLEY and GINSBURG; BUCKLEY
Citation15 F.3d 1131
Parties, 62 USLW 2563 ALLIANCE FOR CANNABIS THERAPEUTICS, Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent, Physicians Association for AIDS Care and the Lymphoma Foundation of America, Intervenors. DRUG POLICY FOUNDATION and the National Organization for the Reform of Marijuana Laws, Petitioners, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent.
Decision Date18 February 1994
Docket Number92-1179,Nos. 92-1168

Page 1131

15 F.3d 1131
304 U.S.App.D.C. 400, 62 USLW 2563
ALLIANCE FOR CANNABIS THERAPEUTICS, Petitioner,
v.
DRUG ENFORCEMENT ADMINISTRATION, Respondent,
Physicians Association for AIDS Care and the Lymphoma
Foundation of America, Intervenors.
DRUG POLICY FOUNDATION and the National Organization for the
Reform of Marijuana Laws, Petitioners,
v.
DRUG ENFORCEMENT ADMINISTRATION, Respondent.
Nos. 92-1168, 92-1179.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 1, 1993.
Decided Feb. 18, 1994.

Page 1132

[304 U.S.App.D.C. 401] Petitions for Review of an Order of the Drug Enforcement Administration.

Steven K. Davidson, Washington, DC, argued the cause for petitioners. With him on the briefs were Amy W. Lustig, Washington, DC, and Kevin B. Zeese, Alexandria, VA. Thomas C. Collier, Jr., Washington, DC, entered an appearance for petitioner Alliance for Cannabis Therapeutics and intervenors in No. 92-1168.

Lena D. Mitchell, Attorney, U.S. Dept. of Justice, Washington, DC, argued the cause for respondent. With her on the brief was John C. Keeney, Acting Asst. Atty. Gen. Eumi L. Choi, Washington, DC, entered an appearance for respondent.

Steven K. Davidson and Amy W. Lustig, Washington, DC, were also on the brief for intervenors.

Before MIKVA, Chief Judge, and BUCKLEY and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

The Alliance for Cannabis Therapeutics, the Drug Policy Foundation, and the National Organization for the Reform of Marijuana

Page 1133

[304 U.S.App.D.C. 402] Laws petition for review of a final order of the Administrator of the Drug Enforcement Administration declining to reschedule marijuana from Schedule I to Schedule II of the Controlled Substances Act. Rescheduling to Schedule II would permit doctors to prescribe marijuana for therapeutic purposes. Petitioners' central claim is that the Administrator's order rests on an unreasonable interpretation of the statute. Because our previous disposition of this matter in Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936 (D.C.Cir.1991) ("ACT ") constitutes the law of the case, we decline to reconsider this claim. We also find that the Administrator satisfied ACT 's mandate on remand and that petitioners' other claims lack merit.

I. BACKGROUND

A. Statutory Scheme

The Controlled Substances Act ("CSA") places hazardous drugs in five categories, or schedules, which impose varying restrictions on access to the drugs. See 21 U.S.C. Sec. 812 (1988). Marijuana is assigned by statute to Schedule I, the most restrictive of these. See id. Schedule I drugs may be obtained and used lawfully only by doctors who submit a detailed research protocol for approval by the Food and Drug Administration and who agree to abide by strict recordkeeping and storage rules. See 21 C.F.R. Secs. 1301.33, 1301.42.

The CSA allows the Attorney General to reschedule a drug if he finds that it does not meet the criteria for the schedule to which it has been assigned. 21 U.S.C. Sec. 811(a). The Attorney General has delegated this authority to the Administrator. See 28 C.F.R. Sec. 0.100(b). In rescheduling a drug, the Administrator must consider, inter alia, "[s]cientific evidence of [the drug's] pharmacological effect, if known," and "[t]he state of current scientific knowledge regarding the drug or other substance." 21 U.S.C. Sec. 811(c)(2), (3).

A drug is placed in Schedule I if (1) it "has a high potential for abuse," (2) it has "no currently accepted medical use in treatment in the United States," and (3) "[t]here is a lack of accepted safety for use of the drug ... under medical supervision." 21 U.S.C. Sec. 812(b)(1) (1988) (emphasis added). The Schedule II criteria are somewhat different: (1) the drug "has a high potential for abuse," (2) it "has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions," and (3) "[a]buse of the drug ... may lead to severe psychological or physical dependence." 21 U.S.C. Sec. 812(b)(2) (1988) (emphasis added). Petitioners' central claim is that the Administrator misinterpreted the language italicized above.

B. Procedural History

This is the latest chapter in petitioners' efforts to move marijuana into a less restrictive CSA schedule. They claim that marijuana is misclassified because it has been shown to serve various medicinal purposes. Specifically, they contend that marijuana alleviates some side effects of chemotherapy in cancer patients, aids in the treatment of glaucoma, an eye disease, and reduces muscle spasticity in patients suffering from multiple sclerosis and other maladies of the central nervous system. In support of these contentions, they introduced affidavits and testimony of a number of patients and practicing physicians who insist that, in their experience, marijuana has proven safe and effective.

The petition to reschedule marijuana was first filed in 1972 and has been before this court on four prior occasions--National Org. for the Reform of Marijuana Laws v. Ingersoll, 497 F.2d 654 (D.C.Cir.1974); National Org. for the Reform of Marijuana Laws v. Drug Enforcement Admin., 559 F.2d 735 (D.C.Cir.1977); National Org. for the Reform of Marijuana Laws v. Drug Enforcement Admin. & Dep't of Health Education & Welfare, No. 79-1660 (D.C.Cir. Oct. 16, 1980); and most recently, ACT, 930 F.2d 936 (D.C.Cir.1991). ACT is the only part of this history we need recount.

In ACT, the Alliance for Cannabis Therapeutics ("Alliance") and the National Organization for the Reform of Marijuana Laws ("NORML") argued that the Administrator's refusal to reschedule marijuana rested on an unreasonable interpretation of the statutory phrase, "currently accepted medical use."

Page 1134

[304 U.S.App.D.C. 403] 930 F.2d at 939; see 21 U.S.C. Secs. 812(b)(1)(B), (2)(B). In a scheduling proceeding involving another drug, the Administrator determined that "[t]he characteristics of a drug or other substance with an accepted medical use" include:

(1) scientifically determined and accepted knowledge of its chemistry;

(2) the toxicology and pharmacology of the substance in animals;

(3) establishment of its effectiveness in humans through scientifically designed clinical trials;

(4) general availability of the substance and information regarding the substance and its use;

(5) recognition of its clinical use in generally accepted pharmacopeia, medical references, journals or textbooks;

(6) specific indications for the treatment of recognized disorders;

(7) recognition of the use of the substance by organizations or associations of physicians; and

(8) recognition and use of the substance by a substantial segment of the medical practitioners in the United States.

53 Fed.Reg. 5,156, 5,157-58 (Feb. 22, 1988).

Applying these criteria to the petition to reschedule marijuana, the Administrator found on December 29, 1989, that marijuana had no currently accepted medical use and thus had to remain in Schedule I. 54 Fed.Reg. 53,767, 53,768 (1989). The eight-factor test had been published in the Federal Register on February 22, 1988, 17 days after the close of the evidence but before the oral arguments to the administrative law judge in the marijuana rescheduling proceedings.

On reviewing the Administrator's decision, we found the eight-factor test for determining whether a drug had a "currently accepted medical use" to be "in the main acceptable." ACT, 930 F.2d at 937. We noted the ambiguity of the phrase and the dearth of legislative history on point and deferred to the Administrator's interpretation as...

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  • U.S. v. Cannabis Cultivators Club, No. C 98-0085 CRB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 13, 1998
    ...Agency until 1992, and a final decision on appeal until 1994. See Alliance for Cannabis Therapeutics v. Drug Enforcement Administrator, 15 F.3d 1131 (D.C.Cir.1994). Needless to say, it hardly seems reasonable to require an AIDS, glaucoma, or cancer patient to wait twenty years if the patien......
  • Am. for Safe Access v. Drug Enforcement Admin., No. 11–1265.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 11, 2013
    ...CSA, requires a “currently accepted medical use.” The DEA's regulations, which we approved in Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C.Cir.1994), define “currently accepted medical use” to require, inter alia, “adequate [706 F.3d 441]and well-controlled studies proving e......
  • Gonzales v. Raich, No. 03-1454.
    • United States
    • United States Supreme Court
    • June 6, 2005
    ...over the course of 30 years, ultimately upholding the Administrator's final order. See Alliance for Cannabis Therapeutics v. DEA, 15 F. 3d 1131, 1133 (1994). 24. United States v. Lopez, 514 U. S. 549, 552-558 (1995); id., at 568-574 (KENNEDY, J., concurring); id., at 604-607 (SOUTER, J., di......
  • Kuromiya v. United States, CIVIL ACTION NO. 98-3439 (E.D. Pa. 3/10/1999), CIVIL ACTION NO. 98-3439.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 10, 1999
    ...to H.R.Rep. No. 91-1444, 91st Cong., 21st Sess. 12, 1970 U.S.Code Cong. & Ad.News 4566); Alliance for Cannabis Therapeutics v. D.E.A., 15 F.3d 1131, 1137 (D.C.Cir. 1994) (refusing to overturn findings of administrator who rejected rescheduling petition because of conflicting evidence regard......
  • Request a trial to view additional results
38 cases
  • U.S. v. Cannabis Cultivators Club, No. C 98-0085 CRB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 13, 1998
    ...Agency until 1992, and a final decision on appeal until 1994. See Alliance for Cannabis Therapeutics v. Drug Enforcement Administrator, 15 F.3d 1131 (D.C.Cir.1994). Needless to say, it hardly seems reasonable to require an AIDS, glaucoma, or cancer patient to wait twenty years if the patien......
  • Am. for Safe Access v. Drug Enforcement Admin., No. 11–1265.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 11, 2013
    ...CSA, requires a “currently accepted medical use.” The DEA's regulations, which we approved in Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C.Cir.1994), define “currently accepted medical use” to require, inter alia, “adequate [706 F.3d 441]and well-controlled studies proving e......
  • Gonzales v. Raich, No. 03-1454.
    • United States
    • United States Supreme Court
    • June 6, 2005
    ...over the course of 30 years, ultimately upholding the Administrator's final order. See Alliance for Cannabis Therapeutics v. DEA, 15 F. 3d 1131, 1133 (1994). 24. United States v. Lopez, 514 U. S. 549, 552-558 (1995); id., at 568-574 (KENNEDY, J., concurring); id., at 604-607 (SOUTER, J., di......
  • Kuromiya v. United States, CIVIL ACTION NO. 98-3439 (E.D. Pa. 3/10/1999), CIVIL ACTION NO. 98-3439.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 10, 1999
    ...to H.R.Rep. No. 91-1444, 91st Cong., 21st Sess. 12, 1970 U.S.Code Cong. & Ad.News 4566); Alliance for Cannabis Therapeutics v. D.E.A., 15 F.3d 1131, 1137 (D.C.Cir. 1994) (refusing to overturn findings of administrator who rejected rescheduling petition because of conflicting evidence regard......
  • Request a trial to view additional results
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