Gettman v. Drug Enforcement Admin., 01-1182.
| Decision Date | 24 May 2002 |
| Docket Number | No. 01-1182.,01-1182. |
| Citation | 290 F.3d 430 |
| Parties | Jon GETTMAN and High Times Magazine, Petitioners, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Michael Kennedy argued the cause and filed the briefs for petitioners.
Daniel Dormont, Senior Attorney, Drug Enforcement Administration, argued the cause for respondent. With him on the briefs were Michael Chertoff, Assistant Attorney General, U.S. Department of Justice, and Rose A. Briceno, Trial Attorney.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Jon Gettman and High Times Magazine petition this Court for review of the March 20, 2001 decision of the Drug Enforcement Administration ("DEA") denying their petition to initiate rulemaking proceedings to reschedule marijuana under 21 U.S.C. § 811(a). See Drug Enforcement Administration Notice of Denial of Petition, 66 Fed.Reg. 20038 (April 18, 2001). The DEA contends we should dismiss the petition for review, arguing that neither Gettman nor High Times Magazine has standing to bring this petition. Because we agree with the DEA, we dismiss the petition.
The Controlled Substances Act, 21 U.S.C. § 801, et seq., sets forth initial schedules of drugs and controlled substances in 21 U.S.C. § 812(c). However, Congress established procedures for adding or removing substances from the schedules (control or decontrol), or to transfer a drug or substance between schedules (reschedule). 21 U.S.C. § 811(a). This responsibility is assigned to the Attorney General in consultation with the Secretary of Health and Human Services ("HHS"). Id. § 811(b). The Attorney General has delegated his functions to the Administrator of the DEA. 28 C.F.R. § 0.100(b). Current schedules are published at 21 C.F.R. §§ 1308.11-1308.15.
There are three methods by which the DEA may initiate rulemaking proceedings to revise the schedules: (1) by the DEA's own motion; (2) at the request of HHS; (3) on the petition of any interested party. 21 U.S.C. § 811(a); 21 C.F.R. § 1308.43(a). Before initiating rulemaking proceedings, the DEA must request a scientific and medical evaluation from HHS and a recommendation. The statute requires the DEA and HHS to consider eight factors with respect to the drug or controlled substance. 21 U.S.C. § 811(b), (c). These factors are:
(1) Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.
21 U.S.C. § 811(c). Although the recommendations of HHS are binding on the DEA as to scientific and medical considerations involved in the eight-factor test, the ultimate decision as to whether to initiate rulemaking proceedings to reschedule a controlled substance is made by the DEA. See id. § 811(a), (b).
Jon Gettman petitioned the DEA in 1995 to initiate rulemaking proceedings under 21 U.S.C. § 811(a) to reschedule various controlled substances, including marijuana. Subsequently High Times Magazine joined with him as a petitioner. In their petition to DEA, Gettman and High Times claimed that "there is no scientific evidence that [marijuana has] sufficient abuse potential to warrant schedule I or II status" under the Controlled Substances Act. In accordance with 21 U.S.C. § 811(b), the DEA forwarded the petition to HHS in 1997. In 2001, HHS recommended that marijuana remain in schedule I and the DEA in turn denied the petition. No action has been taken regarding the other drugs initially named by Gettman.
Gettman and High Times filed this petition for review of the DEA's refusal to initiate rulemaking proceedings to reschedule marijuana. On our own motion, we ordered supplemental briefing on standing, and specifically asked parties to address the issue of injury.
Article III, section 2, clause 1 of the United States Constitution limits the "judicial power" of the United States to the resolution of "cases" or "controversies." Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982); see Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 402, 36 L.Ed. 176 (1892). In order to establish the existence of a case or controversy within the meaning of Article III, the party must meet certain constitutional minima. As relevant to this case, these include the requirement that the party must demonstrate that it has standing to bring the action. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). "Those who do not possess Art. III standing may not litigate as suitors in the courts of the United States." Valley Forge, 454 U.S. at 475-76, 102 S.Ct. at 760. Petitioners seem to believe that their "commitment" to their cause and the alleged importance of their cause is enough to confer Article III standing. It is not. Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972). To satisfy the constitutional requirement of standing, a plaintiff or petitioner must, at an "irreducible constitutional minimum ... demonstrate that it has suffered a concrete and particularized injury that is: (1) actual or imminent, (2) caused by, or fairly traceable to an act that the litigant challenges in the instant litigation, and (3) redressable by the court." Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (en banc) (internal quotation marks and citations omitted); see Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136-37. Neither Gettman nor High Times magazine meets this standard.
Petitioners contend that they have "automatic standing" to appeal the DEA's denial of their petition because 21 U.S.C. § 811(a)(2) permits "any interested party" to file a petition to initiate rulemaking proceedings. They suggest that this is enough — since they are the original petitioners before the DEA they should not be "held to heightened requirements for standing in pursuing judicial review of the DEA's order," and at no time during the administrative proceedings has the DEA claimed that they are not "interested part[ies]" under 21 U.S.C. § 811(a)(2). Petitioners misunderstand the law. Petitioners may be "interested part[ies]" under the statute, and therefore able to petition the agency, and yet not have Article III standing to bring this action in federal court. See Fund Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C.Cir.2002). "Participation in agency proceedings is alone insufficient to satisfy judicial standing requirements." Id. Mere interest as an advocacy group is not enough. The fact that Congress may have given all interested parties the right to petition the agency does not in turn "automatic[ally]" confer Article III standing when that right is deprived. See id. at 27-28. The Constitution requires a concrete and particularized injury. This is not a "heightened requirement," but rather the bare minimum. Thus, the grant of a procedural right alone cannot serve as the basis for Article III standing unless "the procedures in question are designed to protect some threatened concrete interest of [petitioners'] that is the ultimate basis of his standing." Fund Democracy, 278 F.3d at 28 (quoting Lujan, 504 U.S. at 573 n. 8, 112 S.Ct. at 2143 n. 8). The sufficiency of the sort of "interest" allowing an interested party to petition an agency at the will of Congress and the justicially protectable "interest" required for an injury to afford standing in the courts is fundamentally the difference between the political branches on the one hand and the Article III courts on the other. While it is perfectly proper, and indeed appropriate and even necessary, for the political branches to respond to the abstract, ideological, philosophical or even idiosyncratic wishes and needs of citizens or, for that matter, persons at large, the courts are granted authority only for the purpose delineated in Article III, section 2, clause 1 of the Constitution and "may exercise power only `in the last resort and as a necessity.'" Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984) (quoting Chicago & Grand Trunk Ry., 143 U.S. at 345, 12 S.Ct. at 402).
Therefore, contrary to petitioners' suggestion, it is not at all anomalous that Congress could permit them as "interested part[ies]" (assuming that they are) to participate in agency proceedings, and yet they be unable to seek review in the federal courts. "Because agencies are not constrained by Article III, they may permit persons to intervene in the agency proceedings who would not have standing to seek judicial review of the agency action." Fund Democracy, 278 F.3d at 27; see Envirocare of Utah, Inc. v. NRC, 194 F.3d 72, 74 (D.C.Cir.1999). In other words, the "criteria for establishing `administrative standing' therefore may permissibly be less demanding than the criteria for `judicial standing.'" Envirocare, 194 F.3d at 74. Thus, unless petitioners can demonstrate an injury in fact, both particularized and concrete, as required by the Constitution, they lack standing to appear before an Article III court.
Petitioners bear the burden of establishing an injury in fact. See Lujan, 504 U.S. at 561, 112 S.Ct. at 2136-37. Neither petitioner meets this burden.
Petitioner Gettman argues that he will suffer "economic or...
To continue reading
Request your trial
-
AARP v. U.S. Equal Emp't Opportunity Comm'n
...of those organizations whom courts have consistently found may not assert associational standing. See, e.g., Gettman v. Drug Enf't Admin., 290 F.3d 430, 435 (D.C. Cir. 2002) (readers of magazine were not members for associational standing purposes); Fund Democracy LLC v. SEC, 278 F.3d 21, 2......
-
Brady Campaign to Prevent Gun Violence v. Salazar
...the NRA's focus is necessary only when an organization is not a "traditional membership organization." See Gettman v. Drug Enforcement Admin., 290 F.3d 430, 435 (D.C.Cir.2002) ("`[i]n determining whether an organization that has no members in the traditional sense may nonetheless assert ass......
-
County of Santa Cruz, Cal. v. Ashcroft
...of a DEA order denying the plaintiffs' petition to initiate rulemaking proceedings to reschedule marijuana. See Gettman v. Drug Enforcement Admin., 290 F.3d 430 (D.C.Cir. 2002). 10. For example, Plaintiffs are not precluded from obtaining and using Marinol (dronabinol), a synthetic version ......
-
National Postal Prof. Nurses v. U.S. Postal Serv.
...redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Gettman v. DEA, 290 F.3d 430, 433 (D.C.Cir.2002). The alleged injury in fact must be concrete and particularized and actual or imminent, not conjectural, hypothetical or spe......
-
Brief for the petitioners: Gonzales v. State of Oregon *.
...F.3d 1131 (D.C. Cir. 1994) (upholding DEAs refusal to reschedule marijuana as supported by substantial evidence); see also Gettman v DEA, 290 F.3d 430, 432 (D.C. Cir. 2002) (explaining CSA procedures for rescheduling a controlled substance). As the D.C. Circuit held in Alliance for Cannabis......