Case # 01-1182
In the United States Court of Appeals
for the District of Columbia Circuit
Jon Gettman and High Times Magazine, Petitioners
against
Drug Enforcement Administration, Respondent
Petition for Review of an Order of the Drug Enforcement Administration,
Dated March 20, 2001
Supplemental Brief for Petitioners
THIS CASE HAS BEEN SCHEDULED FOR ORAL ARGUMENT ON MARCH 19, 2002
Law Office of Michael Kennedy
Attorneys for Petitioners
425 Park Avenue, 26th Floor
New York, New York 10022
212-935-4500
STATEMENT OF THE CASE
On April 19, 2001, petitioners filed a petition for review of the DEA’s denial of their petition to initiate rulemaking proceedings for the rescheduling of marijuana. (A422). After briefing by the parties, this Court ordered, sua sponte, that the parties submit supplemental briefs “on the issue of petitioners’ standing to pursue this claim, addressing specifically the question of injury.” Order, 2-14-02.
SUMMARY OF ARGUMENT
Petitioners Jon Gettman and High Times Magazine filed the petition at issue as “interested parties” under 21 U.S.C. §811(a)(2), and therefore have continuing standing to appeal the DEA’s denial of their petition. Should this Court determine that they are subject to heightened standing requirements on appeal, however, petitioners submit that they have been “injured in fact,” thus providing them with standing under Article III of the United States Constitution. The nature of Gettman’s injury is economic insofar as the Schedule I status of marijuana constrains his ability to research, consult and pursue development of marijuana’s medical uses without incurring criminal liability. The constitutional standing of High Times Magazine is based on injuries sustained by its subscribers, many of whom rely on marijuana to treat illness but are prohibited from using the substance because of its Schedule I status. Finally, both petitioners satisfy the “zone of interests” test which is used to determine whether a litigant has “prudential” standing to pursue judicial action.
ARGUMENT
- CONGRESS DID NOT INTEND THAT “ANY INTERESTED PARTY” WHO PROPERLY FILES A PETITION WITH THE DEA BE PRECLUDED FROM SUBSEQUENT JUDICIAL REVIEW OF THE DEA’S ORDER
As a threshold matter, petitioners respectfully submit that they have automatic standing to appeal the DEA’s denial of their petition. Nearly seven years ago, petitioners began these proceedings pursuant to 21 U.S.C. §811(a)(2), which allows “any interested party” to file a petition to initiate rulemaking proceedings for the reclassification of a controlled substance. (n1) Following the DEA’s denial of their petition, petitioners sought review in this Court pursuant to §877, which provides in pertinent part:
“All final determinations, findings, and conclusions of the Attorney General under this subchapter shall be final and conclusive decisions of the matters involved except that any person aggrieved by a final decision of the Attorney General may obtain review of the decision in the United States Court of Appeals for the District of Columbia or for the Circuit in which his principal place of business is located upon petition filed with the court and delivered to the Attorney General within thirty days after notice of the decision.”
Id. Although §877 clearly requires that challengers of agency decisions establish aggrievement, it is illogical to conclude that the original petitioners (Gettman and High Times) are held to heightened requirements for standing in pursuing judicial review of the DEA’s order. See 5 U.S.C. §704 (Congress provided that “(a)ency. action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review”). Indeed, the Courts of Appeals are the only forums in which a petitioner may seek review of a final DEA order. See 21 U.S.C. §877; see also NORMAL v. DEA, 559 F.2d 735 (D.C.Cir.1977); Grinspoon v. DEA, 828 F.2d 881 (1st Cir.1987).
Nothing in the language or legislative history of §877 indicates that individuals who have standing to petition the DEA under §811(a)(2) may suddenly be stripped of their rights to pursue full and fair judicial review of the DEA’s final order. To hold otherwise would allow the DEA to ignore a petition for years upon years, refuse to conduct hearings, then deny the petition on any ground, knowing that it will be shielded from judicial review. Surely, Congress did not intend to give the DEA such unbridled power by divesting petitioners of their rights to judicial review of agency orders.
- PETITIONERS ARE ENTITLED TO JUDICIAL REVIEW EVEN IF THIS COURT DETERMINES THAT THEY MUST MEET HEIGHTENED REQUIREMENTS FOR STANDING AT THIS STAGE
- Petitioners Have Constitutional Standing to Pursue this Petition for Review
In order to establish constitutional standing a petitioner must show: (1) injury in fact, (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury complained of can be redressed by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The Supreme Court has long held that palpable economic injuries are sufficient to lay the basis for standing, see Sierra Club v. Morton, 405 U.S. 727, 733, n.6 (1972) (collecting cases), and also recognizes that standing may be premised on less tangible interests. Id. at 738 (citing Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)). This Court and other circuits have permitted the filing of petitions for review of DEA orders by parties who were similarly situated to Jon Gettman and High Times Magazine. See e.g. NORML v. DEA, 559 F.2d 735 (petition for review filed by the “National Organization for the Reform of Marijuana Laws” (NORML) following DEA’s denial of petition to reschedule marijuana); Grinspoon v. DEA, 828 F.2d 881 (petition for review filed by researcher/professor interested in facilitating research on MDMA).
Petitioner Jon Gettman clearly will suffer economic or competitive injury by the DEA’s decision. Gettman is a former president of NORML and presently a public policy professional qualified to research, advise, invest, and profit from the development of medical marijuana and cannabinoid pharmaceuticals. See Affidavit of Counsel Michael Kennedy, attached. Gettman has a Ph.D. in public policy and regional economic development and an MS in justice. Id. He has been accepted in state and federal courts as an expert on marijuana use and cultivation, and has testified at the request of Virginia legislative committees. Id. He has published several articles and made numerous presentations in the field. Id. As a researcher/professor, Gettman’s status is no different than Dr. Grinspoon, who had standing to pursue a petition for review of the DEA’s final order concerning the scheduling of MDMA. See Grinspoon v. DEA, 828 F.2d 881.
The DEA’s schedule I classification of marijuana constrains Mr. Gettman’s ability to research economic development in this area and to sell his services as a policy analyst and/or professor. See Affidavit of Michael Kennedy. Specifically, the DEA’s order has caused injury to Gettman by narrowing the universe of customers of consulting services and also by stymieing his ability to legally conduct clinical and social research on marijuana, its effects and medical utility. Id. (n2) Indeed, there is only one licensed grower of marijuana in the United States, thus resulting in unfair constraints on competition by Gettman and similarly situated professionals. (n3)
With respect to High Times’ constitutional standing, Petitioners respectfully direct the Court to the body of case law holding that an organization whose members are injured may represent those members in a proceeding for judicial review. See NAACP v. Button, 371 U.S. 415, 428 (1963). To establish “representational standing”, an organization must show that: (1) its members individually would have standing; (2) the protectable interests are germane to the organization’s purpose; and (3) individual members are not required to participate in the suit in order to press the claim or assert the requested relief. See Hunt v. Washington Apple Advertising Commn., 432 U.S. 333 (1977); National Collegiate Athletic Ass’n. v. Califano, 622 F.2d 1382 (10th Cir.1980).
Of great significance here, this Court repeatedly adjudicated NORML’s petition for review during nearly twenty years of litigation resulting from the DEA’s denial of their petition to resechedule marijuana. See NORML v. Ingersoll, 497 F.2d 654, 655 (D.C.Cir.1974); NORML v. DEA, 559 F.2d 735 (D.C.Cir.1977); Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 938 (D.C.Cir. 1991); Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1134 (D.C.Cir. 1994). Presumably, this Court heard NORML’s claims based on its “representational standing” to sue on behalf of its members.
Like NORML, High Times Magazine is committed to the decriminalization of marijuana and to the legal use of the substance for medical purposes. See Corporate Disclosure Statement, Pet’s Brf; Affidavit of Michael Kennedy, attached. Many of its readers and subscribers are dependent on marijuana to treat medical illnesses such as cancer, AIDS/HIV wasting, glaucoma, and other debilitating illnesses. Id. As such, many High Times readers and subscribers have been personally injured by the DEA’s order and therefore would have standing to challenge it. Id. Moreover, it should be noted that aside from injury to High Times’ subscribers, the magazine itself has suffered direct injury insofar as the Schedule I status of marijuana creates a chilling effect on its First Amendment rights to investigate and report on the medical and cultural realities of marijuana. Id.
The injuries to Gettman, High Times and its subscribers are a direct result of the DEA’s retention of marijuana in Schedule I, and can only be redressed by the relief requested in this Court action. See Lujan v. Defenders of Wildlife, 504 U.S. at 560-61.
- Petitioners Have Prudential Standing to Pursue this Petition for Review
Although this Court ordered petitioners to address specifically the issue of injury, see discussion supra at 4-8, petitioners acknowledge that courts may also require a showing of prudential standing. In determining prudential issues of standing, courts apply a “zone of interest” test which asks whether “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute . . . in question.” Association of Data Processing Serv. Orgs., Inc. 397 U.S. 150 (1970). According to this Court, “[l]itigants are considered to be ‘protected’ by the statute if they are intended beneficiaries of the legislation, or if they are suitable challengers of the agency action because their interests are sufficiently congruent with the interests of the intended beneficiaries.” MD Pharmaceutical, Inc. v. Drug Enforcement Administration, 133 F.3d 8 (D.C. Cir.1998) (citing First National Bank and Trust Co. v. National Credit Union Admin., 988 F.2d 1272, 1275 (D.C. Cir. 1993), cert. denied sub nom, 510 U.S. 907)).
In cases were the plaintiff is not itself the subject of the contested regulation, the “zone of interests” tests denies review only if the plaintiff’s interests are “so marginally related to or inconsistent with the purpose implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399 (1987). “The test is not meant to be especially demanding; in particular there need be no indication of congressional purpose to benefit the would-be plaintiff.” Id. at 757 (citing Investment Company Institute v. Camp, 401 U.S. 617 (1971) (emphasis added). A litigant whose minimal interest barely fits within that zone still will have standing, although its claims may be minor compared to those of the total number of persons affected by the rule. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978).
Petitioner Gettman is within the “zone of interests” required for prudential standing insofar as his interest in researching and facilitating economic development of medical marijuana is consistent with the statutory interests protected by the Controlled Substances Act. See 21 USC 801 (1) (Congress recognized that “many of the drugs included [in the CSA] have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people”). By maintaining marijuana in Schedule I, the DEA is effectively precluding Gettman and other researchers from studying marijuana and developing medically useful products without the threat of criminal prosecution. (n4) See Affidavit of Michael Kennedy. Similarly, High Times is within the “zone of interests” because its subscribers, many of whom rely on medical marijuana to treat illness, face criminal penalties should they continue to use the Schedule I substance. Id. At the very least, petitioners have established prudential standing because their interests are sufficiently congruent with the interests of the intended beneficiaries.” See First National Bank, supra at 9 (Court held that investment bankers’ pursuit of interests congruent with those of the intended beneficiaries of the Glass-Stendall Act established prudential standing for the bankers to sue to enforce the Act’s restrictions on banks).
CONCLUSION
WHEREFORE the reasons stated, petitioners respectfully submit that they standing to pursue the Petition for Review in this Court.
DATED: February , 2002 Respectfully Submitted,
New York, NY
Michael Kennedy
425 Park Avenue, 26th Floor
NY, NY 10022
212-935-4500 (tel.)
212-980-6881 (fax)
Notes:
n1 At no time during the past seven years has DEA claimed that petitioners were not “interested parties” under 21 U.S.C. §811(a)(2).
n2 See Institute of Medicine, Marijuana and Medicine: Assessing The Science Base at 2 (Janet E. Joy et al. eds., National Academy Press 1999) at 200-201 (noting that “[i]nvestigators are affected by Schedule I requirements even if their research is being conducted in vitro or on animals. For example, researchers studying cannabinoids found in the plant are required under the CSA to submit their research protocol to DEA, which issues a registration that is contingent on FDA’s evaluation and approval of the protocol (21 CFR § 1301.18)”).
n3 Mahmoud A. ElSohly, Ph.D., director of the only authorized marijuana cultivation research facility in the country is thus in a unique position to study THC in both its natural and synthetic forms. He was four patents, including #5,508,037, granted on April 16, 1996 on “Suppository formulations having long-term stability and containing readily bioavailable .DELTA..sup.9 -THC derivatives,” and # 6,008,383, granted on December 28, 1999 on “Method of preparing delta-9-tetrahydrocannabinol esters.”
n4 As discussed, supra at p.6, the ability to obtain a license to handle Schedule I substances for research purposes is extremely difficult and limited.
[Affidavit of Counsel omitted]