DEA asks court to toss marijuana rescheduling appeal

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The U.S. Drug Enforcement Administration reiterated that a lawsuit challenging marijuana’s classification as a Schedule 1 drug under the federal Controlled Substances Act should be dismissed because of lack of jurisdiction and merit.

The DEA’s assertion came in a 77-page response to a case in the 9th Circuit Court of Appeals in San Francisco.

In a one-page order in August, the court denied the DEA’s request to dismiss the suit at that time and asked for briefs from the parties.

The case is one of those being watched closely because, if the plaintiffs prevail, the DEA might be compelled to reschedule marijuana.

But some experts believe it’s more likely that the U.S. Congress eventually will reschedule or deschedule marijuana.

The full House is expected to vote on a measure Friday that would remove marijuana from the federal Controlled Substances Act.

But it’s unlikely the Senate will consider such a move anytime soon unless Democrats win both Senate runoff seats in Georgia on Jan. 5.

In January 2020, two individuals – Stephen Zyszkiewicz and Jeramy Bowers – petitioned the DEA to reschedule marijuana. But the DEA denied that request.

A different group of petitioners, led by Susan Sisley, have challenged that denial in the 9th circuit.

In its 77-page response, the DEA made these arguments:

  • The petitioners in this case weren’t involved in the original rescheduling request to the DEA. Instead, they are asking the court to reverse a DEA decision based on arguments that they never presented to the agency. Therefore the suit should be dismissed for lack of jurisdiction and for failure to exhaust administrative proceedings.
  • If the petitioners had asked the DEA to reschedule marijuana and presented evidence on this point, the DEA could have considered their claim and offered a response.
  • Petitioners also fail on the merits of their case, incorrectly contending that the DEA’s decision to retain marijuana as a Schedule 1 drug is arbitrary and capricious.

The DEA’s response also noted that Zyszkiewicz has filed two separate lawsuits in the federal courts for the District of Columbia seeking review of the DEA’s decision.

– Jeff Smith