CASE SCHEDULED FOR ORAL ARGUMENT MARCH 19, 2002
No. 01-1182
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
JON GETTMAN AND HIGH TIMES MAGAZINE,
Petitioners
v.
DRUG ENFORCEMENT ADMINISTRATION,
Respondent
PETITION FOR REVIEW OF A FINAL DETERMINATION OF THE DRUG ENFORCEMENT ADMINISTRATION DENYING A PETITION TO INITIATE RULEMAKING PROCEEDINGS
SUPPLEMENTAL BRIEF FOR THE RESPONDENT
ON THE ISSUE OF PETITIONERS’ STANDING
MICHAEL CHERTOFF
Assistant Attorney General
ROSE A. BRICENO
Trial Attorney
Narcotic and Dangerous Drug Section
U.S. Department of Justice
10th and Constitution Ave., N.W. Criminal Division
Bond Building
Washington, D.C. 20530
(202) 616-5580
DANIIEL DORMONT
Senior Attorney
Drug Enforcement Administration
Washington, D.C. 20537
(202) 307-8010
- INTRODUCTION
On February 14, 2002, this Court instructed the parties to submit supplemental briefs on the issue of petitioners’ standing to pursue this claim, addressing specifically the question of injury. Having examined the case law on standing, including this Court’s latest pronouncements thereon, it is evident that petitioners lack standing. Accordingly, the petition for review should be dismissed.
- ARGUMENT
Article III, sec. 2, cl. 1 of the Constitution limits the “judicial power” of the United States to the resolution of “cases” or “controversies.” Valley Forge Christian College v. Americans United for Separation of Church, and State, Inc., 454 U.S. 464, 471 (1982). As then-Justice Rehnquist, writing for the Court, stated: “[O]f one thing we may be sure: Those who do not possess Art. III standing may not litigate as suitors in the courts of the United States.” Id. at 475-476.
Supreme Court cases “have established that the irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992):
“First, the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant. . . . Third, it must be likely, as opposed to merely speculative, that the injury will be
[page 1]
redressed by a favorable decision.”
Id. at 560-61 (citations, internal quotations, and footnote omitted).
Petitioners bear the burden of establishing the foregoing elements, as they are the party invoking federal jurisdiction in this case. rd. at 561. Yet, petitioners are unable to satisfy even the first prong of the test for standing: an injury in fact. (Accordingly, the second and third prongs need not be addressed.)
In essence, petitioners’ sale interest in this case is that of an advocacy group which seeks a lessening (or complete elimination) of legal restrictions on the manufacturing, distribution, possession, and use of marijuana.(n1) While such an intereest puts them in the all-encompassing category of an “interested party” entitled to petition the Drug Enforcement Administration (DEA) to initiate rulemaking proceedings to reschedule marijuana (21 U.S.C. 811 (a)), it does not confer Article III standing entitling them to have this matter addressed by the ,federal courts. As this Court stated in Envirocare of Utah, Inc. v. Nuclear Regulatory Commission, 194 F.3d 72, 74 (D.C. Cir. 1999):
(page 2)
“Federal agencies may, and sometimes do, permit persons to intervene in administrative proceedings even though these persons would not have standing to challenge the agency’s final action in federal court. Agencies, of course, are not constrained by Article III of the Constitution; nor are they governed by judicially-created standing doctrines restricting access to the federal courts. The criteria for establishing “administrative standing” therefore may permissibly be less demanding than the criteria for “judicial standing.””
On February 1, 2002, this Court issued an opinion that speaks directly to the standing question here. In Fund Democracy, LLC v. S.E.C., 218 F.3d 21 (D.C. Cir. 2002), an organization (Fund Democracy), which described itself as “an advocate and information resource for mutual fund investors,” petitioned this Court for review of an order of the Securities and Exchange Commission (SEC) denying their request for a hearing on the request of an investment company for an exemption under the Investment. Company Act of 1940. This Court held that the advocacy group lacked standing to petition for review, explaining:
“[E]ven assuming that Fund Democracy is an “interested person” under the rule and therefore eligible to participate in the SEC proceedings, this does not mean that Fund Democracy has Article III standing. Participation in agency proceedings is alone insufficient to satisfy judicial standing requirements. Because agencies are not constrained by Article III, they may permit persons to intervene in the agency proceedings who would not have standing to seek judicial review of the agency action. For this reason, we agree with the Second Circuit which has expressly rejected the argument that an individual’s status as an “interested person” is sufficient to confer standing to petition for review of an SEC order under the Act.
“Fund Democracy suggests that Congress specifically intended to grant to all “interested persons” a right to a hearing before the SEC and that the denial of this right therefore confers standing. Even assuming Congress intended to grant a right to a hearing to all interested persons and that Fund Democracy is among those persons, the deprivation of that right does not alone confer Article III standing. The grant of a procedural right cannot serve as the basis for Article III standing unless “the procedures in question are designed to protect some threatened concrete interest of [petitioner’s] that is the ultimate basis of his standing.” As already noted, Fund Democracy has not shown any such concrete interest apart from the procedural injury.”
(italics added; citations omitted; page cite not yet available).
Similar to the petitioner in Fund Democracy, petitioners here are essentially an advocacy group. Their apparent goal is a diminution in the laws governing the manufacture, distribution, possession, and use of marijuana. Beyond this advocacy role, they have no interest in the subject matter underlying this case. They simply cannot show they have suffered any injury in fact. They do not claim to be, for example, legitimate manufacturers or distributors of a pharmaceutical controlled substance who might claim a direct and immediate economic stake in DEA’s decision of whether to initiate rulemaking proceedings to reschedule marijuana. (n2)
(page 4)
Petitioners have not met, and apparently cannot meet, their burden of demonstrating “”the irreducible constitutional minimum” of “an invasion of a legally protected interest which is (a) concrete and particularized and’ (b) actual or imminent, not conjectural or hypothetical.”
Although the Controlled Substances Act contains an appeal provision (21 U.S.C. 877) which authorizes judicial review at the instance of “any person aggrieved by a final decision of the [DEA Administrator],” this provision does not impart upon petitioners Article III standing. Section 877 is similar to the appeal provision in the Administrative Procedure Act (S U.S.C. 702). The Supreme Court has, expressly declared that, neither such an appeal provision, “nor any other congressional enactment, can lower the threshold requirements of standing under Art. III.” Valley Forge Christian College, 454 U.S. at 487 n. 24.
Given petitioners’ lack of Article II standing, to entertain this petition for review would seem to be what the Supreme Court would consider “convert [ing] the judicial process into ‘no more than a vehicle for vindication of the value interests of concerned bystanders.1” See Valley Forge Christian College, 454 U.S. at 473.
(page 5)
III CONCLUSION
For the fbregoing reasons, respondent respectfully requests that this Court dismiss the petition for review for lack Of standing.
Respectfully submitted,
MICHAEL CHERTOFF
Assistant Attorney General
ROSE A. BRICENO
Trial Attorney
Narcotic and Dangerous Drug Section
Criminal Division
U.S. Department of Justice
DANIEL DORMONT [signed]
Senior Attorney
Drug Enforcement Administration
(page 6)
CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of January, 2002, I
served the foregoing “SUPPLEMENTAL BRIEF FOR THE RESPONDENT
ON THE ISSUE OF PETITIONERS’ STANDING” by causing the original
and four copies to be sent to this Court by hand delivery, and by
causing two copies to be served upon the following counsel by fax
and overnight mail;
Michael Kennedy, Esquire
Law Offices of Michael Kennedy
425 Park Avenue, 26th Floor
New York, New York 10022
Tel: (212) 935-4500
Fax: (212) 980-6881
[signed]
Daniel Dormant
Attorney
Notes
(1) The Corporate Disclosure Statement in the Brief for Petitioners states that, among other things, “High Times [Magazine] is committed to the de-criminalization [sic] of marijuana and to the legal use of the substance for medical purposes.” Although petitioners’ brief contains no similar disclosure about Jon Gettman’s interests here, it seems implicit in his petition (and, presumably, he would not dispute) that he, too, is an advocate for the legalization of marijuana.
(2) Nor are petitioners bona fide researchers authorized to engage in research with marijuana, or research subjects who are receiving marijuana in such authorized research. Even if they were in either of these categories, they might still be unable to demonstrate any injury in fact sufficient to give them standing to appeal DEA’s denial of a petition to initiate rule making proceedings to remove marijuana from schedule I, since the CSA does allow such research by persons who have obtained approval from the Food and Drug Administration and are registered with DEA. See 21 U.S.C. 823(f); Oakland Cannabis Buyers’ Cooperative, 532 u.s. 4831 121 S. Ct. 1711, 1717-1719 (2001) (the CSA limits the use of schedule I drugs to federally authorized research).