Veterans Ask Ninth Circuit to Make Feds Rethink Position on Marijuana – Courthouse News Service

A medical researcher and group of veterans are questioning the federal government’s position that marijuana has no recognized medical benefit despite being legal for medical purposes in 36 states.

In this August 15, 2019 file photo, marijuana is growing on an indoor cannabis farm in Gardena, California. (AP Photo / Richard Vogel)

(CN) – In a case that could lead the federal government to reconsider the classification of marijuana, an attorney on Thursday urged a Ninth District panel to get the U.S. Drug Administration to review its 49-year-old position, that cannabis has no accepted medicinal use.

“It’s a relic of a bygone era,” attorney Shane Pennington told a ninth district jury of three judges.

Pennington is representing Dr. Suzanne Sisley, an Arizona-based medical marijuana researcher, and three veterans who claim they are suffering ongoing harm from the federal government’s refusal to reclassify cannabis as a drug with medicinal benefits. Her petition for the Ninth Circle highlights research Sisley has done with marijuana to treat veterans suffering from post-traumatic stress disorder.

Despite the fact that medical marijuana is legal in 36 states, the DEA has classified cannabis as a List I drug – the most restrictive category – since 1972. Congress gave the DEA power to decide how drugs should be classified in the Controlled Substances Act of 1970. It was around the same time that former President Richard Nixon declared the “war on drugs.”

The petitioners argue that a five-factor test introduced by the DEA in 1992 to determine whether a drug has a medical benefit is arbitrary, leads to absurd results and is contrary to the will of Congress.

But most of the Ninth Ward hearings on Thursday did not focus on the wisdom of the DEA’s decision or its criteria for categorizing drugs. Rather, it focused on whether the petitioners are empowered to appeal to a federal court.

That’s because Sisley and the veterans are challenging the rejection of a petition they never submitted. The unilateral, handwritten petition calling on the DEA to reclassify marijuana was submitted by Stephen Zyszkiewicz and Jeramy Bowers in January 2020. The DEA rejected the petition four months later. Two separate denial lawsuits are pending in the District of Columbia against Zyszkiewicz and Bowers.

“This is a really strange case,” Bill Clinton-appointed District Judge Willaim Fletcher told attorneys challenging the DEA’s decision. “You appealed the rejection of someone else’s petition. I’ve never seen a case like this before. “

But it’s not unprecedented, says Matthew Zorn, another attorney who represents Sisley and the veterans.

To back up his position, Zorn cited the groundbreaking Massachusetts v EPA case from 2007, which forced the federal agency to regulate greenhouse gas emissions to combat climate change. In this case, Massachusetts challenged the rejection of a petition filed by someone else.

“None of the judges on the DC Circuit or the Supreme Court thought Massachusetts filing a motion to review another party’s petition,” Zorn said.

Justice Department attorney Daniel Aguilar made a distinction, telling the panel that Massachusetts only ran on the case because the Supreme Court believed it deserved “special care” as a “sovereign state”.

In response to a question from District Judge Daniel Collins, a Donald Trump-appointed district court, Aguilar admitted that the Massachusetts v EPA never directly addressed the question of whether a party can challenge the rejection of a petition that was not filed. But he insisted that there is no jurisprudence to support this notion.

Fletcher stated that he agrees with this position.

“It doesn’t seem reasonable to me to allow someone to come this way without petitioning themselves to piggyback a rejection of such a strange and abbreviated petition,” Fletcher said. “It just doesn’t fit the way the administrative process is supposed to work.”

But the judge also urged Aguilar why Massachusetts was allowed to file such a lawsuit when it is not allowed.

“I’m still trying to figure out how you differentiate between this case and the Massachusetts case,” Fletcher said. “Are you saying that the petitioners here, the people in front of us, are not claiming Article III? Is that the argument? Because I think they have Article III. The veterans actually want to use this without the restrictions that come with a List I drug. “

US District Judge Paul Watford, a Barack Obama-appointed judge, suggested that if people challenged decisions on petitions they failed to submit could result in a spate of litigation. Potentially tens of millions of people allegedly harmed by the DEA’s decision could file their own lawsuits against the petition’s denial in separate county courts across the country, Watford said.

Aguilar insisted that a claim for damages based on the rejection of another person’s petition cannot result in “specific or specific infringement.”

In this case, if the petitioners want the DEA to change their stance on marijuana, they will have to file their own DEA petition, Aguilar said.

“There is nothing preventing the petitioners here from petitioning the DEA and presenting their arguments for the DEA to take into account in the first instance,” he said.

Zorn told the panel that this was a “purely legal issue” that was “ready for decision” and that it would create undue delays for his clients to go through the lengthy process of filing their own petition.

“We want that to be done now,” said Zorn. “My clients have suffered injuries from failure to regulate, failure to apply this law in its simple and common reading.”

After a 33-minute debate, the jury took up the arguments presented.

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