Washington v. Barr
| Decision Date | 30 May 2019 |
| Docket Number | Docket No. 18-859-cv,August Term, 2018 |
| Citation | 925 F.3d 109 |
| Parties | Marvin WASHINGTON, Dean Bortell as Parent of Infant Alexis Bortell, Jose Belen, Sebastien Cotte as Parent of Infant Jagger Cotte, and Cannabis Cultural Association, Inc. Plaintiffs-Appellants, v. William Pelham BARR in his official capacity as United States Attorney General, United States Department of Justice, Uttam Dhillon in his official capacity as the Acting Administrator of the Drug Enforcement Administration, United States Drug Enforcement Administration, and United States of America, Defendants-Appellees |
| Court | U.S. Court of Appeals — Second Circuit |
Michael S. Hiller, Hiller PC (Lauren A. Rudick, Fatima V. Afia, and Jason E. Zakai, Hiller PC; Joseph A. Bondy, on the brief), New York, NY, for Plaintiffs-Appellants.
Samuel Dolinger, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees.
Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.2
Judge JACOBS dissents in a separate opinion.
This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government’s classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq .See, e.g. , Krumm v. Drug Enforcement Admin. , 739 F. App'x 655 (D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin. , 706 F.3d 438 (D.C. Cir. 2013) ; Alliance for Cannabis Therapeutics v. Drug Enforcement Admin. , 15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life-or-death threat to their health. We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings. Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.
The trial court granted Defendants’ motion under Federal Rules of Civil Procedure 12(b)(1) and (6) to dismiss Plaintiffs’ case. We therefore review its decision de novo , accepting as true all of the complaint’s well-pleaded facts. See d’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd. , 886 F.3d 216, 222 (2d Cir. 2018) ; Harris v. Mills , 572 F.3d 66, 71 (2d Cir. 2009).
As this case reaches us at the motion to dismiss stage, we must treat the well-pleaded facts alleged in Plaintiffs’ complaint as true. According to their pleadings, Plaintiffs are several individuals and a membership organization with an interest in the regulation of marijuana. They assert that the classification of cannabis as a Schedule I substance under the CSA harms them in one or more ways.
Marvin Washington is an African-American businessman working in the medical marijuana space. He would like to expand his business into whole-plant cannabis products and take advantage of the federal Minority Business Enterprise Program, but, he alleges, he is impeded from so doing by the drug’s scheduling.
Alexis Bortell and Jagger Cotte are children with dreadful medical problems. Bortell suffers from chronic and intractable seizures; Cotte from Leigh’s disease. They allege that they exhausted traditional treatment options before finding success medicating with cannabis. They claim that marijuana has saved their lives. Because of its Schedule I classification, however, they cannot bring their life-saving medicine with them when they travel onto federal lands or into states where marijuana is illegal. For Bortell, these travel limitations also mean that she cannot take full advantage of the veteran’s benefits to which she is entitled through her father. In addition, both Bortell and Cotte live in constant fear that their parents might be subject to arrest and prosecution for their involvement in their children’s medical treatment.
Jose Belen is a veteran of the war in Iraq and suffers from post-traumatic stress disorder. After his honorable discharge, he became suicidal and was adjudged 70% disabled. He alleges that he pursued conventional therapies unsuccessfully. In despair, he turned to medical marijuana. This, he claims, has allowed him to manage his symptoms. He further asserts, like Bortell, that marijuana’s Schedule I classification restricts his ability to travel and to take full advantage of his veteran’s benefits.
The Cannabis Cultural Association, Inc. (CCA) is a not-for-profit organization dedicated to assisting people of color develop a presence in the cannabis industry. CCA is particularly focused on the way past convictions for possession, cultivation, distribution, and use of marijuana have disproportionately affected people of color and prevented minorities from participating in the new state-legal marijuana industry.
Defendants are the United States, the Attorney General, the Department of Justice, the Acting Administrator of the DEA, and the DEA itself. They are responsible for implementing the CSA and, more particularly, for updating the classification of controlled substances. See 21 U.S.C. § 811(a) ; 28 C.F.R. § 0.100(b).
Plaintiffs initiated the instant suit in the Southern District of New York in July 2017 and filed the amended complaint now at issue on September 6, 2017. Plaintiffs raised numerous arguments for re- or descheduling marijuana, including, as relevant to this appeal, (a) that the classification of marijuana as a Schedule I drug exceeded Congress’s powers under the Commerce Clause and was without a rational basis, (b) that the classification was arbitrary and capricious, (c) that marijuana’s inclusion in the CSA was racially animated and is an act of viewpoint discrimination, and (d) that the law, as applied to Plaintiffs, violates variously their (or, in CCA’s case, its members’) First, Fifth, and Ninth Amendment rights, including, inter alia , substantive due process and the fundamental right to travel.
The crux of Plaintiffs’ case is that new facts related to the acceptance of medical marijuana treatment regimens and the federal government’s own involvement in medical marijuana research require a reexamination of marijuana’s scheduling under the CSA. The complaint seeks declaratory relief, as well as an injunction restraining Defendants from enforcing the CSA with respect to cannabis. In reply, Defendants moved to dismiss.
After argument, the District Court granted the government’s motion and dismissed Plaintiffs’ suit. It further held that amending the complaint would be futile. As a threshold matter, the Court determined that Plaintiffs had failed to exhaust their administrative remedies and that they did not qualify for an exception to the exhaustion rule. On the merits, the Court did not find Plaintiffs’ arguments persuasive and deemed their claims to be either foreclosed by precedent or without legal authority. The Court additionally held that CCA failed to establish that it had standing to pursue its claim, since the relief it sought would not redress the injury its members had allegedly suffered. The District Court entered judgment on February 26, 2018, and this appeal timely followed.
We resolve this case without reaching most of Plaintiffs’ disparate arguments. As the District Court correctly observed, Plaintiffs challenge the current classification of marijuana as a Schedule I substance under the CSA but did not first bring this challenge to the agency that has the authority to reschedule marijuana, the DEA.3 Although the CSA does not expressly mandate the exhaustion of administrative remedies, our precedents indicate that it is generally to be required as a prudential rule of judicial administration. We agree with the District Court that exhaustion was appropriate here. But in light of the allegedly precarious situation of several of the Plaintiffs, which at this stage of the proceedings we must accept as true, and their argument that the administrative process may not move quickly enough to afford them adequate relief, we retain jurisdiction of the case in this panel, for the sole purpose of taking whatever action might become appropriate should the DEA not act with adequate dispatch. We wish to make clear, however, that, in doing so, we express no view whatever on the merits of Plaintiffs’ case—that is, on whether marijuana should be listed or not.
The administrative state is a topic of much debate these days. See Gillian E. Metzger, The Supreme Court, 2016 Term— Foreword: 1930s Redux: The Administrative State Under Siege , 131 HARV. L. REV. 1 (2017). Distinguished jurists and scholars have been critical of its expansion. See, e.g. , Gutierrez-Brizuela v. Lynch , 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J. , concurring); Philip Hamburger, Is Administrative Law Unlawful? (2014). Others understand it as a central part of our modern republic. See generally Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982); see also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012) (). Regardless of one’s point of view, it remains at the moment a key part of our legal regime. The doctrines that regulate the relationship between courts and administrative agencies are thus of...
To continue reading
Request your trial
-
McPherson v. Lamont
...be futile, either because agency decisionmakers are biased or because the agency has already determined the issue." Washington v. Barr , 925 F.3d 109, 118 (2d Cir. 2019) (addressing judicially crafted exhaustion requirement applicable to Controlled Substance Act challenges). "[U]ndue delay,......
-
United States v. Holden, 3:13-cr-00444-BR
...where exhaustion is seemingly mandated by statute ..., the requirement is not absolute.’ " Id., at 291 (quoting Washington v. Barr , 925 F.3d 109, 118 (2d Cir. 2019) ). Relying on Washington , the Perez court found three circumstances in which courts may excuse a failure to exhaust: when it......
-
United States v. Montanez
...we recognize that the statute itself does not expressly contain such a requirement.").5 Some courts in this Circuit have relied on Washington v. Barr for the proposition that, "[e]ven where exhaustion is seemingly mandated by statute ..., the requirement is not absolute." United States v. Z......
-
Martinez-Brooks v. Easter
...to justify a federal court in taking a case prior to the complete exhaustion of administrative remedies"). Washington v. Barr , 925 F.3d 109, 118-19 (2d Cir. 2019) ; see also Gonzalez v. Perrill , 919 F.2d 1, 2 (1990) (In Section 2241 case, noting that "[t]he controlling standard is unambig......
-
Blunt Forces: A Case Study of Administrative Exhaustion Under the Controlled Substances Act.
...Marijuana Research Unfairly Handicaps the Rescheduling Movement, 41 Am. J.L. & Med. 190, 196-99 (2015). (20.) See Washington v. Barr, 925 F.3d 109, 122 (2d Cir. (21.) See infra notes 183-99 and accompanying text. (22.) Id. (23.) See infra Part III.B. (24.) See 21 U.S.C. [section] 812(b)......