US v. Hovey, Crim. A. No. 86-2.

CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)
Writing for the CourtMURRAY M. SCHWARTZ
Citation674 F. Supp. 161
Docket NumberCrim. A. No. 86-2.
Decision Date24 November 1987
PartiesUNITED STATES of America, Plaintiff-Respondent, v. Michael C. HOVEY, Defendant-Petitioner.

674 F. Supp. 161

UNITED STATES of America, Plaintiff-Respondent,
Michael C. HOVEY, Defendant-Petitioner.

Crim. A. No. 86-2.

United States District Court, D. Delaware.

November 24, 1987.

674 F. Supp. 162

Richard J. McMahon, Asst. Atty. Gen., Dept. of Justice, Wilmington, Del., for plaintiff-respondent.

Robert T. Aulgur of Whittington & Aulgur, Smyrna, Del. (Saskia A. Jordan of Haddon, Morgan & Foreman, P.C., Denver, Colo., of counsel), for defendant-petitioner.



Petitioner Michael C. Hovey brings this action challenging his conviction pursuant to 28 U.S.C. § 2255 (1982). On February 5, 1986, Mr. Hovey pled guilty to two counts of an indictment charging him with the manufacture and distribution of 3-methylfentanyl in October and November 1985 in violation of 21 U.S.C. § 841(b)(1)(C) (Supp. 1987). During that period, 3-methylfentanyl ostensibly was a controlled substance under the temporary scheduling authority conferred by Congress on the Attorney General through 21 U.S.C. § 811(h) (Supp. 1987). Mr. Hovey was sentenced to two consecutive nine-year terms of imprisonment. Although he was represented by counsel, he was not advised of the possible defects in the scheduling of 3-methylfentanyl.1 These alleged jurisdictional defects form the basis of his motion requesting the Court to vacate his conviction and sentence.

Michael Hovey urges several grounds supporting the grant of his motion. Initially, he asserts that the Court lacked jurisdiction to render judgment and sentence him because the Drug Enforcement Administration ("DEA") lacked the authority to temporarily schedule drugs pursuant to section 811(h) due to the failure of the Attorney General to delegate expressly his authority to the DEA. Hovey also contends Congress' initial delegation of authority to temporarily schedule drugs to the Attorney General violates constitutional principles of separation of powers. Assuming without deciding the constitutionality of the delegation of temporary scheduling authority to the Attorney General, the Court's determination that the DEA did not have the power to temporarily schedule 3-methylfentanyl under section 811(h) makes reaching the other asserted grounds unnecessary.2

674 F. Supp. 163

I. Background on the Scheduling Provisions

Examining the congressional delegation of scheduling authority both highlights the differences between permanent and temporary scheduling and sets the framework for the analysis of the propriety and necessity of subdelegation to the DEA. The configuration of the permanent scheduling provisions contrasted with the later amendment adding temporary scheduling authority reveals the wide gap between the two scheduling schemes and the resulting need for explicit subdelegation of temporary scheduling powers.

A. The 1970 Act

1. Permanent Scheduling under the Controlled Substances Act

In 1970 Congress passed the Comprehensive Drug Abuse Prevention and Control Act (the "1970 Act"), Pub.L. No. 91-513, 84 Stat. 1236 (now incorporated into the Controlled Substances Act ("CSA")).3 The CSA established five schedules of controlled substances, with prohibitions and penalties varying according to the schedule in which a particular substance was placed. 21 U.S.C. § 812(a) (1982).

Congress initially divided controlled substances by schedule, but, in section 811, authorized the Attorney General to make future decisions to schedule or reschedule substances. The Attorney General's scheduling authority is constrained by four subsections of sections 811 and 812: (1) subsection 811(a), applying Administrative Procedure Act4 requirements to the scheduling determination; (2) subsection 811(b), providing for mandatory recommendations from the Secretary of Health and Human Services ("HHS"); (3) subsection 811(c), which lists eight factors to be considered by the Attorney General in deciding whether a drug should be scheduled; and (4) subsection 812(b), defining the boundaries of the five schedules.

Subsection 811(a) directs the Attorney General to make section 812 findings in conformity with the APA. Thus the Attorney General (or the DEA) must make rules on the record, and must afford interested parties the opportunity for a hearing.

Subsection (b) of section 811 instructs the Attorney General to obtain from the HHS Secretary, prior to initiating scheduling proceedings, a "scientific and medical evaluation" and a recommendation "as to whether such drug or other substance should be so controlled...." 21 U.S.C. § 811(b) (1982). The recommendation is binding "as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance." 21 U.S.C. § 812(b); see United States v. Gordon, 580 F.2d 827, 838 (5th Cir.1978), cert. denied sub. nom., Garcia v. United States, 439 U.S. 1079, 99 S.Ct. 860, 59 L.Ed.2d 49 (1979).

In subsection 811(c), Congress established a list of factors for the Attorney General to consider in determining whether a drug should be scheduled:

(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.
674 F. Supp. 164
(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) (1982).

Subsection (b) of section 812, which delineates the requirements for categorization of substances in the different schedules, limits the rulemaking power of the Attorney General. For example, before a drug may be placed in Schedule I, three findings must be made: (A) that "the drug or other substance has a high potential for abuse"; (B) that "the drug or other substance has no currently accepted medical use in treatment in the United States"; and (C) that "there is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1) (1982).

2. The Constitutionality of the Delegation of Permanent Scheduling Power

The Supreme Court consistently describes the delegation of legislative power from Congress to the executive branch as constitutionally permissible if the delegated power is sufficiently definite "so that it may be known whether the administrator receiving the power has kept within it in compliance with the legislative will." Yakus v. United States, 321 U.S. 414, 425, 64 S.Ct. 660, 668, 88 L.Ed. 834 (1944); see Zemel v. Rusk, 381 U.S. 1, 17-18, 85 S.Ct. 1271, 1281-1282, 14 L.Ed.2d 179 (1965).

Courts addressing the validity of the delegation of legislative power to the Attorney General in sections 811 and 812 uniformly found the delegation constitutional.5 The courts addressing the issue generally relied on (1) the clear statement of congressional policy6; (2) the specificity of the standards guiding the decisionmaker7; (3) the need for delegation in order to meet the congressionally identified problem8; and (4) the availability of judicial review to prevent arbitrary decisions.9 Requiring a clear statement of congressional policy and specific standards, coupled with the availability of judicial review, allows courts to check the compliance of the delegatee with the legislative will. Permitting delegation of legislative authority subject to the above restrictions in circumstances where Congress cannot act effectively to address the problem also furthers legislative will. Thus, judicial analysis of the validity of delegations from Congress to the executive branch turns on the ability of courts to monitor compliance with congressionally determined policy.

674 F. Supp. 165

The standards guiding the decision to schedule under section 811(a), as described above, are detailed. One consequence of the detailed nature of the standards is that the length of time necessary to schedule a drug permanently is often at least a year.10 Where the existence of the drug to be scheduled is known to the DEA prior to the rise of threatening levels of clandestine manufacture and street use, permanent scheduling mechanisms adequately protect the public. Where, however, as is the case with chemical analogs of already controlled substances ("designer drugs"), clandestine manufacture and distribution of substances begins to reach dangerous levels quickly, no mechanism existed prior to 1984 to temporarily bypass the permanent scheduling procedures and control the substances quickly.11 As congressional attention focused on the designer drug phenomenon, the delays associated with permanent scheduling prompted Congress to attempt to develop a temporary scheduling mechanism.

B. The 1984 Amendment to the CSA

In response to the designer drug phenomenon, Congress added a new subsection (h) to section 811 of the CSA (the "1984 amendment").12 The new subsection allows the Attorney General to temporarily schedule substances on an emergency basis, where he determines that temporary scheduling "is necessary to avoid an imminent hazard to the public safety...." 21 U.S.C.A. § 811(h) (Supp.1987). Three of the factors listed in section 811(c) guide the Attorney General in the temporary scheduling decision under section 811(h): the "history and current pattern of abuse" of the substance; "the scope, duration, and significance of abuse"; and the risk, if any, "to the public health." 21 U.S.C.A. § 811(c)(4)-(6), (h) (Supp.1987). In addition to the three factors, subsection (4) of 811(h) requires the Attorney General to consider any HHS comments submitted in response to notice sent by the Attorney General to the Secretary informing her of the proposed emergency scheduling. 21 U.S.C.A. § 811(h)(4) (Supp.1987). Unlike the...

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  • U.S. v. Touby, Nos. 89-5604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 21, 1990
    ...States v. Emerson, 846 F.2d 541, 544 (9th Cir.1988); United States v. Spain, 825 F.2d 1426 (10th Cir.1987); United States v. Hovey, 674 F.Supp. 161 (D.Del.1987); United States v. Pees, 645 F.Supp. 697 (D.Colo.1986). We agree with these courts that, whatever the import of the limitation on j......
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    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 17, 1989
    ...scheduling power. Another district court from this circuit has recognized the propriety of subdelegation in United States v. Hovey, 674 F.Supp. 161, 167 (D.Del.1987). There, Judge Schwartz found that 28 U.S.C. § 510 specifically authorized the Attorney General to subdelegate his § 811(h) po......
  • U.S. v. Emerson, Nos. 86-5267
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 10, 1988
    ...with the Tenth Circuit's recent decision in United States v. Spain, 825 F.2d 1426 (10th Cir.1987). See also United States v. Hovey, 674 F.Supp. 161, 169-70 (D.Del.1987) (following Spain ). We are reluctant to create a direct conflict with the Tenth Circuit, criminalizing behavior in our jur......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 15, 1990
    ...powers under the 1984 amendment, adding 21 U.S.C. Sec. 811(h), are not delegable. AFFIRMED. --------------- 1 In United States v. Hovey, 674 F.Supp. 161 (D.Del.1987), the court canvassed circuit court cases addressing the constitutionality of the Sec. 811(a) delegation. Hovey noted that in ......
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