Olsen v. Holder

• Decision Date: 27 April 2009
• Docket Number: No. 4:08-cv-00370 RP-RAW.,4:08-cv-00370 RP-RAW.
• Parties: Carl E. OLSEN, Plaintiff, v. Eric HOLDER, Attorney General of the United States, Michele Leonhart, Acting Administrator, United States Drug Enforcement Administration, and Hillary Clinton, United States Secretary of State, all in their official capacities, Defendants.
• Court: U.S. District Court — Southern District of Iowa

610 F.Supp.2d 985

Carl E. OLSEN, Plaintiff, v. Eric HOLDER, Attorney General of the United States, Michele Leonhart, Acting Administrator, United States Drug Enforcement Administration, and Hillary Clinton, United States Secretary of State, all in their official capacities, Defendants.

No. 4:08-cv-00370 RP-RAW.

United States District Court, S.D. Iowa, Central Division.

April 27, 2009.

Christopher D. Hagen, U.S. Attorney's Office, Des Moines, IA, Tamara L. Ulrich, U.S. Dept of Justice-Civil Division Federal Programs Branch, Washington, DC, for Defendants.

Carl E. Olsen, Des Moines, IA, pro se.

ORDER

ROBERT W. PRATT, Chief Judge.

On September 15, 2008, Plaintiff, Carl Olsen, filed an "Original Complaint for Declaratory and Injunctive Relief." Clerk's No. 1. Plaintiff's action asserts that the current scheduling of marijuana as a Schedule I controlled substance is unlawful under the Controlled Substances Act of 1970 ("CSA"). Specifically, Plaintiff contends that marijuana "no longer meets the statutory requirement for inclusion in Schedule I of the CSA" because several states have determined that marijuana has a legitimate medical use, in contradiction to the CSA's requirement that a Schedule I drug have "no currently accepted medical use in treatment in the United States." Pl.'s Compl. at 1; 21 U.S.C. § 812(b)(1)(B). Plaintiff seeks the following relief: 1) a declaratory ruling that the maintenance of marijuana on Schedule I is unlawful; 2) an injunction against the Defendants¹ to prevent them from enforcing laws that treat marijuana as a Schedule I drug; and 3) an order requiring the Drug Enforcement Administration to either reschedule marijuana or to remove marijuana from the drug schedules entirely; and 4) an order requiring Defendants to initiate proceedings to remove restrictions on marijuana from international treaties.

Presently before the Court are the following motions: 1) Defendants' Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim upon which Relief can be Granted (Clerk's No. 6), filed November 17, 2008;² 2) Plaintiff's Motion for Summary Judgment (Clerk's No. 9), filed November 23, 2008;³ 3) Plaintiff's Motion for Preliminary Injunction (Clerk's No. 10), filed November 24, 2008;⁴ and 4) Plaintiff's Motion for Temporary Restraining Order (Clerk's No. 25), filed January 14, 2009.⁵ In addition to these matters, Plaintiff has filed several Motions for Judicial Notice Pursuant to Federal Rule of Evidence 201. Clerk's Nos. 13, 19, 22, 28, 36.⁶ As a preliminary matter, the Court grants Plaintiff's requests for judicial notice, as they merely contain supplementary case law and documentation that Plaintiff believes relevant to the case.

I. FACTUAL BACKGROUND

Plaintiff is a member and priest in the Ethiopian Zion Coptic Church, a recognized religion that employs marijuana as "an essential portion of [its] religious practice." Compl. ¶¶ 23-27. Plaintiff has been party to numerous lawsuits seeking, in one form or another, recognition of what he contends is his religious right to use marijuana. See State v. Olsen, 315 N.W.2d 1, 8 (Iowa 1982) (concluding that the State of Iowa had a compelling interest sufficient to override Olsen's claim that possession of marijuana was permissible as a free exercise of his religion); United States v. Rush, 738 F.2d 497, 512-13 (1st Cir.1984) (finding that Olsen was not entitled to assert a defense based on free exercise of religion because "[n]o broad religious exemption from the marijuana laws is constitutionally required"); Olsen v. Drug Enforcement Admin., 776 F.2d 267, 268 (11th Cir.1985) (finding that Olsen's request to obtain a religious exemption from the marijuana laws fell outside the scope of 21 U.S.C. § 811); Olsen v. Drug Enforcement Admin., 878 F.2d 1458, 1463 (D.C.Cir. 1989) (rejecting Olsen's claim that equal protection mandated an exemption for sacramental use of marijuana similar to the exception for peyote use by Native Americans and further finding that "the free exercise clause does not compel the DEA to grant Olsen an exemption immunizing his church from prosecution for illegal use of marijuana"); Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir.2008) (finding that Olsen's free exercise and equal protection claims were barred by collateral estoppel).

In the present case, Plaintiff has adopted a strategy somewhat different from that asserted in previous cases in his ongoing effort to decriminalize marijuana. Accordingly, a procedural summary of Plaintiff's activities in relation to the present matter is appropriate. In previous cases, Plaintiff has generally asserted that he has a First Amendment entitlement to use marijuana as part of the free exercise of his religion, or that an exception must be made to the marijuana laws to permit his religious use of it. Here, however, Plaintiff is not directly asserting either of these positions.⁷ Rather, Plaintiff argues that: 1) a drug is only appropriately listed on Schedule I if it has "no currently accepted medical use in the United States"; 2) Congress gave the States the authority to determine what constitutes "accepted medical use" and the Supreme Court has reaffirmed the States' right to make that determination; 3) twelve states have passed laws finding that marijuana has "accepted medical use[s]"; 4) because twelve states have concluded that marijuana has an "accepted medical use," the listing of marijuana in Schedule I is invalid; and 5) federal enforcement of the CSA with regard to marijuana is, therefore, unlawful. Plaintiff additionally contends that, because marijuana is improperly and unlawfully classified as a Schedule I controlled substance, the Defendants must undertake proceedings to amend any international treaties that require marijuana to be listed in Schedule I.

In his effort to bring his arguments to fruition, Plaintiff filed a "Petition for Marijuana Rescheduling" with the Drug Enforcement Administration ("DEA") on May 12, 2008. Clerk's No. 1.5 (Ex. 12). Therein, Plaintiff asserted the same arguments as in the present case, namely that marijuana is improperly listed as a Schedule I controlled substance because twelve states have concluded that marijuana has an "accepted medical use," contrary to the requirements listed in 21 U.S.C. § 812(b)(1) for inclusion of a substance in Schedule I. Id. The DEA sent Plaintiff a letter on June 25, 2008, stating that his Petition for Marijuana Rescheduling had been accepted for filing. Clerk's No. 1.6 (Ex. 16). On August 5, 2008, Plaintiff sent the DEA a document entitled, "Notice and Deadline to Cease and Desist Illegal Enforcement of Fraudulant [sic] Marijuana Regulation." Id. (Ex. 17). Therein, Plaintiff stated that the DEA's "current scheduling of marijuana in Title 21 Code of Federal Regulations, Section 1308.11 Schedule I, is in violation of federal law, Title 21 United States Code, Section 903."⁸ Id. Plaintiff further stated that failure by the DEA to cease and desist enforcement of the illegal marijuana regulation within 30 days would result "in a federal civil injunction being filed against the Drug Enforcement Administration" in federal court. Id. Having received no further response from the DEA, Plaintiff filed the present lawsuit on September 15, 2008. Clerk's No. 1.

In November 2008, the Defendants filed their Motion to Dismiss. Defendants' Motion first argued that Plaintiff's federal action must be dismissed on the basis that Plaintiff had not received a final determination from the DEA in regard to his Petition for Marijuana Rescheduling and that Plaintiff, therefore, had failed to exhaust his administrative remedies under the Administrative Procedures Act. See 5 U.S.C. § 704 (permitting judicial review of agency actions that are "made reviewable by statute [or] final agency action for which there is no other adequate remedy in a court"). Plaintiff filed a resistance to the Defendants' Motion to Dismiss urging that he was not required to exhaust administrative remedies before filing the present lawsuit.

On December 19, 2008, the DEA issued a nine page letter (the "DEA Letter") rejecting Plaintiff's Petition for Marijuana Rescheduling and declining to institute rulemaking proceedings for the purposes of rescheduling marijuana. See Clerk's No. 22. In light of the DEA Letter, the Defendants filed a Reply to Plaintiff's Resistance to the Motion to Dismiss, conceding that, "[b]ecause Plaintiff has now exhausted his administrative remedies, that portion of Defendants' motion to dismiss based on lack of administrative exhaustion is moot." Defs.' Reply at 2. While admitting that Plaintiff is now "entitled to federal court review of the administrative decision," however, Defendants maintain that jurisdiction is still improper because "[r]eview of administrative decisions under the CSA ... lies exclusively with the courts of appeal." Id.

On January 16, 2009, one day after the Defendants filed their Reply, Plaintiff "filed a Petition for Review in the United States Court of Appeals for the Eighth Circuit, pursuant to 21 U.S.C. § 877, from the `DEA Letter' of December 19, 2008." Clerk's No. 28. Despite his filing with the Court of Appeals, Plaintiff maintains that the present lawsuit is appropriately before this Court on the basis that "[t]his Court is more qualified to authoritatively interpret the language of the CSA than the DEA." Pl.'s Supp. Resistance at 2.

II. DEFENDANTS' MOTION TO DISMISS

The Defendants contend that Plaintiff's Complaint must be dismissed because this Court lacks subject matter jurisdiction over Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants further assert that Plaintiff has failed to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

A. Standard of Review

A federal district court has subject matter jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States."...