U.S. v. Widdowson

• Citation: 916 F.2d 587
• Decision Date: 15 October 1990
• Docket Number: 89-2085 and 89-2086,Nos. 89-2075,s. 89-2075
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Robert WIDDOWSON, also known as Rob Sullivan, Bruce Bachman, and Michael Whiteley, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 587

916 F.2d 587

59 USLW 2312

UNITED STATES of America, Plaintiff-Appellant, v. Robert WIDDOWSON, also known as Rob Sullivan, Bruce Bachman and Michael Whiteley, Defendants-Appellees.

Nos. 89-2075, 89-2085 and 89-2086.

United States Court of Appeals Tenth Circuit.

Oct. 15, 1990.

Presiliano Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Charlotte Mapes, Atty., Office of the Chief Counsel, Drug Enforcement Admin., with him on the brief), Albuquerque, N.M., for plaintiff-appellant.

Peter Schoenburg, Asst. Federal Defender (Nancy Hollander with him on the brief), Albuquerque, N.M., for defendants-appellees Bruce Bachman and Michael Whiteley.

Charles O. Grigson, Austin, Tex., filed a brief on behalf of defendant-appellee Robert Widdowson.

Before HOLLOWAY, Chief Judge, and SETH and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Defendants Robert Widdowson, Bruce Bachman, and Michael Whiteley were indicted on counts involving conspiracy to manufacture, manufacture, possession with intent to distribute, and distribution of the drug N-hydroxy-3, 4-methylenedioxyamphetamine (NMDA), temporarily classified as a Schedule I controlled substance. The Administrator of the Drug Enforcement Administration (DEA) placed NMDA temporarily on Schedule I, acting under a delegation order of the Attorney General. Defendants filed a motion to dismiss their indictments, contending, alternatively, that the delegation to the Attorney General was unconstitutional, that the Attorney General had not subdelegated this scheduling function to the DEA Administrator, and that if he had, under 21 U.S.C. Sec. 811(h), he lacked power to make such a subdelegation and must himself make this scheduling decision. The district court granted the motion without passing on the constitutional argument, 723 F.Supp. 583, and the United States appealed.

I

In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act, Pub.L. No. 91-513, 84 Stat. 1236. Title II of that Act, known as the Basic Controlled Substances Act (the Act), separates controlled substances into five schedules. See 21 U.S.C. Sec. 812(b). Penalties for violating the Act depend upon the schedule in which the relevant drug is found.

Section 201(a) of the Act, 21 U.S.C. Sec. 811(a), gives the Attorney General the authority to determine in which schedule drugs should be placed permanently. The Attorney General can place a drug permanently upon a particular schedule only after following a procedure that includes a number of safeguards. Id. Sec. 811(a)-(c). In 1984, Congress amended Sec. 811 by adding subsection (h). See Pub.L. No. 98-473, tit. II, sec. 508, 98 Stat. 1837, 2071-72 (codified at 21 U.S.C. Sec. 811(h)). Under Sec. 811(h), the Attorney General can circumvent the ordinary procedures and safeguards for scheduling drugs if "necessary to avoid an imminent hazard to the public safety." In such a case, the Attorney General has unfettered discretion to temporarily place a drug in Schedule I.

In 1973, the Attorney General delegated to the Administrator of the DEA the authority under Sec. 811(a) to permanently schedule drugs. See 28 C.F.R. Sec. 0.100(b) (1986). We held in United States v. Spain, 825 F.2d 1426 (10th Cir.1987), that this 1973 delegation order did not apply to the 1984 amendment which added Sec. 811(h). In July 1987, the Attorney General made a new delegation order that purported to delegate to the DEA Administrator all "[f]unctions vested in the Attorney General by the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended." 28 C.F.R. Sec. 0.100(b) (1989). The Attorney General commented that the 1987 delegation "ensure[s] that any functions vested in Attorney General by statutory amendments to the [Act] are delegated to the Administrator." 52 Fed.Reg. 24,447 (1987). Although the 1987 delegation does not expressly mention Sec. 811(h), we conclude that it effectively delegates all delegable powers held by the Attorney General under the Act, and we do not discuss that issue further. See United States v. Touby, 909 F.2d 759, 767-68 (3d Cir.1990) (1987 delegation effectively delegates Attorney General's temporary scheduling authority).

In August 1987, the DEA Administrator gave notice that NMDA would be placed on Schedule I. See 52 Fed.Reg. 30,175 (1987). Two months later, the Administrator temporarily placed NMDA on Schedule I. See 52 Fed.Reg. 38,225-26 (1987). In 1988, the defendants were indicted for their involvement with NMDA.

II

The district court did not address the constitutionality of the delegation under Sec. 811(h) from Congress to the Attorney General because it ruled for defendants on another basis. In Spain, we expressed doubt about the constitutionality of this delegation, but found it unnecessary to decide the issue. See Spain, 825 F.2d at 1429. The Third Circuit's recent opinion in United States v. Touby, 909 F.2d 759 (3d Cir.1990), contains two well developed, opposing views on the constitutional issue. See id. at 766-68, (majority opinion) 774-76 (Hutchinson, J., dissenting). See also United States v. Emerson, 846 F.2d 541, 545-46 (9th Cir.1988) (upholding constitutionality of delegation). Because logic would seem to compel consideration of Congress' delegation to the Attorney General before passing upon subdelegation to the DEA Administrator, and because we believe a discussion of the constitutional issue strengthens the statutory argument against subdelegation to the DEA Administrator, we choose here to decide whether the delegation to the Attorney General violates the separation of powers doctrine.

We already have held that the permanent scheduling power given to the Attorney General and the Secretary of Health and Human Services by Sec. 811(a) is not an unconstitutional delegation of Congress' legislative power. United States v. Barron, 594 F.2d 1345, 1352-53 (10th Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2180, 60 L.Ed.2d 1056 (1979). In Barron, we relied upon the reasoning of other circuit opinions holding to the same effect, especially United States v. Pastor, 557 F.2d 930 (2d Cir.1977). Pastor is the first and leading circuit court case to consider the constitutionality of Congress' delegation to the Attorney General of the power to make permanent scheduling decisions; it analyzed the issue extensively. In upholding the Sec. 811(a) delegation, it relied on the precise standards governing the Attorney General's scheduling decisions and the specific findings required before scheduling. It also relied upon the following restraints on any potential abuse of the Attorney General's power to make and enforce the same law: (1) the Attorney General cannot act contrary to the Secretary of Health and Human Services' recommendation; (2) he must follow the public notice and hearing requirements of the Administrative Procedure Act; and (3) his actions are subject to judicial review. Pastor, 557 F.2d at 941. Subsequent circuit court cases upholding the constitutionality of the Sec. 811(a) delegation relied on similar reasoning. ¹

The Pastor and Barron holdings are correct, we believe. But they do not resolve the instant case, which involves Congress' delegation of the power to make temporary scheduling decisions under Sec. 811(h).

Separation of powers as doctrine may appear to be moribund, but we do not agree with those who think it is dead. The Supreme Court recently relied on the separation of powers doctrine to strike down the one-House veto in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), and to hold Sec. 251 of the Gramm-Rudman-Hollings Act unconstitutional in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Even more recently, the Court recognized that " 'the integrity and maintenance of the system of government ordained by the Constitution,' mandate that Congress generally cannot delegate its legislative power to another Branch." Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 654, 102 L.Ed.2d 714 (1989) (quoting Field v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 504, 36 L.Ed. 294 (1892)).

Although the Supreme Court uniformly has upheld extensive delegations of power permitting administrative agencies to regulate activities and industries, "The area of permissible indefiniteness narrows ... when the regulation invokes criminal sanctions...." United States v. Robel, 389 U.S. 258, 275, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1967) (Brennan, J., concurring). When delegating the power to deprive persons of their liberty, Congress must provide procedural protections, adequate standards reflecting a "legislative judgment" and adequate notice to those affected. Id. at 275-82, 88 S.Ct. at 429-34. In upholding Congress' recent delegation to the United States Sentencing Commission to promulgate binding sentencing guidelines, the Supreme Court distinguished A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935) (which struck down congressional delegations permitting the President to promulgate regulations invoking criminal penalties), by noting that the sentencing commission delegation "[did] not make crimes of acts never before criminalized." Mistretta, 109 S.Ct. at 655 n. 7. See also Fahey v. Mallonee, 332 U.S. 245, 249, 250, 67 S.Ct. 1552, 1553, 1554, 91 L.Ed. 2030 (1947).

A major difference between the majority and the dissent in Touby was whether the power delegated to the Attorney General by Sec. 811(h) was the power to define primary criminal conduct--to create a crime. We agree with dissenting Judge Hutchinson; the power to criminalize the manufacture and sale of a previously legal drug, and to subject violators to what could be life sentences, ² is the power to create a crime. But that does not end the inquiry, since the power of permanent scheduling under Sec. 811(a) is equally the power to define primary criminal...