Sisley v. United States Drug Enforcement Agency, No. 20-71433 (9th Cir. 2021)Annotate this Case
Zyszkiewicz, a prisoner and a medical cannabis patient, wrote a one-page letter to the DEA, seeking the rescheduling of marijuana under the Controlled Substances Act (CSA), 21 U.S.C. 801, which places federally-regulated substances into one of five schedules depending on “potential for abuse,” “medical use,” “safety,” and the likelihood of “dependence.” The DEA responded that the letter was not in the proper format for a petition but that it welcomed the opportunity to respond to his concerns. The DEA’s letter gave reasons for having denied an earlier rescheduling petition filed by Governors Chafee of Rhode Island and Gregoire of Washington State. Zyszkiewicz treated the DEA’s answer as a denial of his petition and unsuccessfully sought judicial review.
Dr. Sisley, her associated institutions, and veterans (Petitioners) sought judicial review of the DEA’s response but did not seek to intervene in Zyszkiewicz’s petition before the DEA, nor have they filed a DEA petition of their own. The arguments Petitioners sought to raise were not made in Zyszkiewicz’s petition.
The Ninth Circuit held that the Petitioners satisfy Article III standing requirements, but that they failed to exhaust their administrative remedies under the CSA and dismissed their petition for review. Petitioners alleged direct and particularized harms due to the misclassification of cannabis. Dr. Sisley and her associated institutions contend that the misclassification impedes their research efforts, and the veterans contend that it forecloses their access to medical treatment with cannabis through the VA.
Court Description: Exhaustion / Controlled Substances Act. The panel dismissed a petition for review of a Drug Enforcement Agency (“DEA”) letter responding to a request that the DEA reschedule marijuana in all of its forms under the Controlled Substances Act (“CSA”). Stephen Zyszkiewicz, a California state prisoner, joined by Jeramy Bowers, a medical cannabis patient, submitted a one-page handwritten petition to the DEA, seeking to reschedule marijuana. The DEA responded by letter, denying the request. Petitioners in this case are Dr. Suzanne Sisley, Scottsdale Research Institute, LLC, Battlefield Foundation, and three veterans, who filed in this court a petition for review of the DEA’s response. The panel held that petitioners had Article III standing. The panel rejected the government’s contention that petitioners lacked standing because they only asserted a generalized grievance. Rather, petitioners contended that they suffered direct and particularized harms due to the misclassification of cannabis. SISLEY V. USDEA 3 The panel held that petitioners failed to exhaust their administrative remedies with the DEA. Although the CSA does not, in terms, require exhaustion of administrative remedies, the panel agreed with the Second Circuit that the text and structure of the CSA show that Congress sought to favor administrative decisionmaking that required exhaustion under the CSA. Petitioners did not seek to join Zyszkiewicz’s one-page petition or seek to intervene with respect to his petition to the DEA. In addition, petitioners did not raise the issue that Zyszkiewicz raised in his petition to the DEA, but instead raised two different arguments. The panel concluded that under the circumstances of this case petitioners had not exhausted their administrative remedies and had given no convincing reasons to excuse their failure to exhaust. Judge Watford concurred. He wrote separately to note that in an appropriate case, the DEA may be obliged to initiate a reclassification proceeding for marijuana given the strength of petitioners’ argument that the agency misinterpreted the CSA by concluding that marijuana has no currently accepted medical use in the United States. Judge Collins concurred in Parts I, II(B), and III of the majority opinion. He did not join Part II(A), which concluded that petitioners had Article III standing to challenge the denial of Zyszkiewicz’s handwritten petition to the DEA. Given that petitioners’ failure to exhaust administrative remedies was dispositive here, there was no need to address petitioners’ Article III standing. 4 SISLEY V. USDEA