On Tuesday, the Ninth Circuit filed a one-page order denying the United States Drug Enforcement Administration (DEA)’s motion to dismiss in a lawsuit in which the Scottsdale Research Institute and its president, Dr. Suzanne Sisley, are attempting to reschedule medical marijuana.
The Department of Justice (DOJ) argued earlier this month that the case should not be heard in the Ninth Circuit, alleging that there was a “failure to exhaust administrative remedies,” and that procedure from the Controlled Substances Act (CSA) should be followed instead. The CSA prohibits any use, possession, or growth of marijuana, however, the DEA can provide an exception to the prohibition. The DOJ, in its attempt to dismiss, said the researchers could have sought a review of the DEA’s rejection of their proposal, rather than taking the issue to the court.
The plaintiffs argued, in their response to the motion to dismiss, that they did not need to use all of the administrative remedies because the legalization of medical marijuana is a legal matter. They averred that their petition, named the Zyszkiewicz petition, should be approved because not allowing research into medical marijuana, which is approved for use in over two-thirds of the states, “jeopardizes public health.”
Their motion states, “because physicians in most parts of this country, following state law and accepted state medical practices, can prescribe (or recommend) marijuana in treatment to patients, marijuana has a ‘currently accepted medical use in treatment in the United States.’ But DEA says otherwise, pointing to a misinterpretation of this statutory phrase, a five-part test from 1992 that requires, among other things, a demonstration of adequate evidence showing efficacy. By invoking the test to deny the Petition, DEA squarely puts the core legal issue before this Court: properly construing the statute using the traditional tools of construction and in light more recent precedents.”
The plaintiffs are represented by Matthew Zorn and Shane Pennington with Yetter Coleman. The DEA is represented by Daniel Aguilar with the United States Department of Justice.
