Update on Sisley v. DEA Lawsuit in 9th Circuit: Challenge to Marijuana Scheduling

Pending in the Ninth Circuit Court of Appeals is a Petition for Review filed by Dr. Sue Sisley, Scottsdale Research Institute, and several Veterans (Petitioners) to require the DEA to hold a hearing to reconsider the Schedule I status of marijuana on the Controlled Substances Act (CSA).  If Petitioners are successful, the result of this lawsuit could be groundbreaking for finally opening the doors to long prohibited marijuana research.

Petitioners initially sued the DEA for failing to take any action on Dr. Sisley’s four year old research application—The DEA had announced in August 2016 that it would, for the first time, permit research, but, four years later, it had taken no action on twenty-six applications. By its lawsuit, Petitioners forced the DEA to publish rules about research applications and to settle with them, in the course of which a secret memo was produced, showing the DEA’s justification for maintaining marijuana at Schedule I—compliance with the 1961 Single Convention on Narcotics Treaty, a treaty with which several countries have already broken in consideration of their individual country’s health needs.  Also significant about DEA’s August 2016 announcement–it was the latest rejection of numerous consolidated petitions to remove marijuana from Schedule I.

In 1970, President Richard Nixon signed into law the Controlled Substances Act (“CSA”), which placed marijuana on Schedule I.  Schedule I means a drug has no accepted medical use and a high potential for abuse.  Heroin is Schedule I.  Cocaine is Schedule II because it is recognized as having some medical use, such as a numbing agent.  The schedules were intended to be flexible to stay current with medical science, and indeed, other drugs move up and down the schedules depending on what is learned about them.  But despite 50 years of petitions and lawsuits, and 47 states that have recognized the therapeutic benefits of marijuana, as recently as April 2020, the DEA rejected another petition for reconsideration based on the untenable conflict between state and federal law.  This rejection allowed Petitioners to sue again.

The pending lawsuit challenges the legal justifications on which the DEA and courts supporting the DEA have relied on to date to uphold marijuana’s Schedule I status and seeks to force the DEA to reconsider and to redelegate the authority over the schedules as well.  Three amicus briefs were submitted in support of Petitioners’ legal arguments.  A group of veterans, Rice University’s Baker Institute of Public Policy, Drug Policy Program with two research scientists, and a group of scientists.  Amicus briefs mean “friend of the court,” a brief filed in support of one of the parties offering additional arguments.  The three amicus briefs all leant treasure troves of statistics and clinical studies to date, detailing numerous public health and policy justifications for reconsidering marijuana, and elaborating on the challenges of real world research in this arena.

Having closely reviewed a lot of attacks over the years against the DEA regime, this latest push by Shane Pennington and Matt Zorn out of Houston promises so far to be locked and loaded and pretty difficult to refute.  The DEA’s response is due in November.  This is a significant case to watch, along with the lawsuit* pending in the Second Circuit, filed by patients against the U.S. Attorney General, contending that the federal illegality of the only medicine that treats their conditions is an unconstitutional restriction on their right to the pursuit of life, liberty, and happiness.  This is the theory under which marijuana is not criminalized in Mexico, Spain, and other European countries.  Let’s hope the United States catches up soon.

The case is Suzanne Sisley et al. v. U.S. Drug Enforcement Administration et al., case number 20-71433, in the U.S. Court of Appeals for the Ninth Circuit.

The Baker Institute of Public Policy was represented by Lisa L. Pittman of Coats Rose P.C.

*UPDATE (10/13/2020): the lawsuit pending in the Second Circuit has been this been denied review by the US Supreme Court, so unfortunately, its challenges are effectively out of the running now.

Lisa L. Pittman is co-chair of the Cannabis Business Law practice group and a pioneering leader and authority in the cannabis industry, which includes state legal marijuana and federally legal hemp.  She advises clients on the many challenges facing cannabis and hemp businesses, such as tax, banking, insurance, and regulatory compliance issues. Lisa was recently appointed to be a Nonresident Fellow at Rice University’s Baker Institute for Public Policy as a member of the Drug Policy Program.  She also was appointed to the Texas Department of Agriculture Industrial Hemp Advisory Council, a role that provides her insight and influence on the regulations for the Texas hemp program, with the goal of propelling Texas to be the preeminent producer of hemp in the United States.  Lisa is Chair Elect of the American Bar Association’s Cannabis Law & Policy Committee, created as a result of Lisa’s first cannabis law CLE for the organization in 2017.  A native Texan, Lisa’s work in the legalization movement in Texas has led her to be referred to as “The First Lady of Texas Cannabis Law.”



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