Tuesday, January 22, 2013

Plaintiff Has Standing to Challenge DEA Stance on Marijuana, But Loses on Merits

The D.C. Circuit ruled today that a disabled veteran had standing to challenge in federal court the Drug Enforcement Agency's decision not to downgrade marijuana from a Schedule I drug.  Even so, the court ruled against him on the merits.  The ruling means that DEA's decision not to downgrade marijuana stands, and marijuana continues to be a Schedule I drug.

The case, Americans for Safe Access v. DEA, arose when the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana and downgrade it from a Schedule I drug.  The DEA declined, and the petitioners sought APA review in federal court.  Once in court, the petitioners' Article III standing became an issue, and the D.C. Circuit ordered argument on it.

The two-judge majority held that one petitioner, Michael Krawitz, a disabled veteran, had standing--and therefore that the case could move to the merits.  Krawitz received pain management treatment from the VA.  But as part of the program, the VA required him to sign a "Contract for Controlled Substance Prescription" that would have prohibited him from using medical marijuana.  Krawitz refused to sign and turned to a non-VA physician in Oregon to obtain the referral forms required to participate in that state's medical marijuana program.  Pursuant to VA policy, the VA did not pay for this.  (VA policy prohibits VA providers from completing forms seeking recommendations or opinions regarding a vet's participation in a state marijuana program.)

The court ruled that Krawitz had standing--that he showed sufficient harm, causation, and redressability to get his foot in the door in federal court.  Harm was easy: the court said that Krawitz's out-of-pocket expenses constituted sufficient harm.  Causation and redressability were a little harder.  The lynchpin for the court was that the DEA classification was the definitive classification for the federal government, including other agencies like the VA, creating a tight enough relationship between the DEA classification and the VA policy.  Thus when the VA required Krawitz to sign that he'd forego medical marijuana and refused to pay for it, it did so because the DEA listed marijuana as a Schedule I drug; that's causation.  And if Krawitz were to win on the merits--and get DEA to downgrade marijuana--the VA would follow suit and drop its requirement that pain management patients forego medical marijuana; that's redressability.  All this means that the VA wasn't some random third-party intervenor breaking the causation and redressability chain between the DEA and Krawitz; instead, the VA policy was driven by the DEA classification.  Here's how the court explained it:

Congress made clear when it passed the [Controlled Substances Act] that the [DEA's] scheduling decisions should serve as the federal government's "authoritative statement" on the legitimacy of particular narcotics and dangerous drugs. . . .  When the DEA classified marijuana as a Schedule I drug, pursuant to its delegated authority under the CSA, it announced an authoritative value judgment that surely was meant to affect the policies of third-party federal agencies.

Unsurprisingly, the VA has heeded the DEA's judgment regarding marijuana, thus making the question of causation relatively easy in this case.

. . .

The only reason the VA cites for implementing [its policy on marijuana] is the classification of marijuana as a Schedule I drug.  Therefore, were marijuana rescheduled to reflect its potential for medical use, the VA would have no expressed reason to retain [its policy] and VA clinicians would likely be subject to a non-discretionary duty to complete Krawitz's state medical marijuana forms.

Op. at 18-20.

(Judge Henderson wrote in dissent that Krawitz's standing arguments came too late.)

But even as the court ruled in favor of standing, it ruled against the petitioners on the merits.  It held that the DEA's decision not to reclassify marijuana wasn't arbitrary and capricious--in particular, that substantial evidence supported the agency's determination that studies showing a "currently accepted medical use" do not exist.

SDS

http://lawprofessors.typepad.com/conlaw/2013/01/plaintiff-has-standing-to-challenge-dea-stance-on-marijuana-but-loses-on-merits.html

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