USCA Case #11-5121 Document #1319507 Filed: 07/19/2011 Page 1 of 8 [NOT SCHEDULED FOR ORAL ARGUMENT] No. 11-5121 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IN RE COALITION TO RESCHEDULE CANNABIS, et al., Petitioners. ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES DRUG ENFORCEMENT ADMINISTRATION AND THE UNITED STATES ATTORNEY GENERAL RESPONSE TO PETITION TONY WEST Assistant Attorney General BETH S. BRINKMANN Deputy Assistant Attorney General MARK B. STERN MELISSA N. PATTERSON (202) 514-1201 Attorneys, Appellate Staff Civil Division, Room 7230 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001
USCA Case #11-5121 Document #1319507 Filed: 07/19/2011 Page 2 of 8 INTRODUCTION AND SUMMARY Petitioners in this action are several membership organizations and individuals interested in the rescheduling of marijuana under the Controlled Substances Act (CSA). In 2002, one of the petitioners here, the Coalition to Reschedule Cannabis (CRC), filed a petition with the Drug Enforcement Administration (DEA) to have marijuana removed from Schedule I of the CSA and rescheduled in Schedule III, IV, or V (Petition to Reschedule). In accordance with the CSA, DEA forwarded the Petition to Reschedule to the Department of Health and Human Services (HHS) for a scientific and medical evaluation. In December 2006, HHS recommended that marijuana remain on Schedule I. DEA s Office of Diversion Control, Drug and Chemical Evaluation Section, completed its review of the petition, HHS s scientific and medical evaluation and recommendations, and all other relevant data in April 2011. This review sets forth the basis for the DEA s finding that marijuana continues to meet the criteria for Schedule I control under the CSA. In May 2011, petitioners asked this Court to issue a writ of mandamus to compel DEA to take final action on the Petition to Reschedule. On June 21, 2011, DEA issued a final agency decision denying CRC s petition to initiate rulemaking proceedings to reschedule marijuana, concluding that there is no substantial evidence that marijuana should be removed from Schedule I. See Denial of
USCA Case #11-5121 Document #1319507 Filed: 07/19/2011 Page 3 of 8 Petition To Initiate Proceedings To Reschedule Marijuana (DEA Denial of Pet.), 76 Fed. Reg. 40,552, 40,566 (July 8, 2011). Because DEA has issued the final determination that petitioners sought to compel, their mandamus petition should be denied as moot. STATEMENT In October 2002, CRC petitioned the DEA to reschedule marijuana from its current Schedule I designation. Review of a petition to initiate proceedings for control or removal of a substance from the schedules comprises several stages. See 21 U.S.C. 811(b). In the first stage, which was completed in July 2004, DEA gathered the necessary data and requested that HHS conduct a scientific and medical evaluation and provide recommendations regarding the control of marijuana. See 21 U.S.C. 811(b). HHS completed this second stage in December 2006, recommending that marijuana remain in Schedule I. In the final stage, the Drug Enforcement Administration must determine whether HHS s scientific and medical evaluation and recommendations and all other relevant data constitute substantial evidence that the drug should be rescheduled. 21 U.S.C. 811(b). DEA s Office of Diversion Control, Drug and Chemical Evaluation Section, completed its review in April 2011. See DEA Denial of Pet., 76 Fed. Reg. at 40,566. On May 23, 2011, petitioners filed for a writ of mandamus, -2-
USCA Case #11-5121 Document #1319507 Filed: 07/19/2011 Page 4 of 8 asking this Court to compel DEA to issue a final determination on the Petition to Reschedule within sixty days. Petitioners argued that judicial intervention was warranted because DEA unreasonably delayed action on the petition under the factors announced in Telecommunications Research & Action Center v. FCC (TRAC), 750 F.2d 70 (D.C. Cir. 1984). By letter dated June 21, 2011, the DEA Administrator denied the Petition to Reschedule, concluding that there is no substantial evidence that marijuana should be removed from Schedule I. See DEA Denial of Pet., 76 Fed. Reg. at 40,552. DEA concluded that marijuana should not be rescheduled because it has: (1) high potential for abuse, (2) no currently accepted medical use in treatment in the United States, and (3) no accepted safety for use under medical supervision. Id. The Administrator notified CRC of this final determination on June 30, 2011, and the denial of the Petition to Reschedule was published with supporting documentation in the Federal Register on July 8, 2011. See 76 Fed. Reg. at 40,552. REASONS WHY THE PETITION SHOULD BE DENIED The Petition for a Writ of Mandamus Is Moot Because the DEA s Order Afforded Petitioners the Only Relief Available. Article III of the Constitution authorizes federal courts to adjudicate only actual, ongoing controversies. Honig v. Doe, 484 U.S. 305, 317 (1988). A live case or controversy must exist -3-
USCA Case #11-5121 Document #1319507 Filed: 07/19/2011 Page 5 of 8 not only when a case is filed, but also at the time that a federal court decides the case. Burke v. Barnes, 479 U.S. 361, 363 (1987). An action must be dismissed as moot if an event occurs while a case is pending... that makes it impossible for the court to grant any effectual relief whatever. Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). DEA s final determination on the Petition to Reschedule renders moot the request for a writ of mandamus that would have directed DEA to issue that determination. Even assuming that petitioners could have established entitlement to an order directing issuance of a decision on a specific timetable, the agency action that petitioners sought to compel has now taken place, leaving no effectual relief that might be ordered by this Court. 1 [O]nce the [agency] has rendered a final decision, the issue of regulatory delay will be moot and beyond our effective power to remedy. Potomac Electric Power Co. v. ICC, 702 F.2d 1026, 1035 1 Courts have typically declined to compel agency action, even when petitioners establish unreasonable agency delay. See generally In re Barr Laboratories, 930 F.2d 72, 76 (D.C. Cir. 1991) (noting that this Court has compelled agency action in exceptionally rare cases ). In lieu of intervention, this Court has allowed agencies to establish their own timetables for action. See, e.g., In re United Mine Workers of Am. Int l Union, 190 F.3d 545, 554 (D.C. Cir. 1999). Likewise, this Court has accepted agency promises of expeditious action and maintained jurisdiction over the case rather than order agency action. See, e.g., TRAC, 750 F.2d at 80. -4-
USCA Case #11-5121 Document #1319507 Filed: 07/19/2011 Page 6 of 8 (D.C. Cir. 1983). This Court should therefore dismiss the petition as moot. See, e.g., American Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1030 (D.C. Cir. 2008) (noting that in In re Am. Bird Conservancy, Inc., D.C. Cir. Docket No. 05-1112 (Apr. 19, 2006), this Court dismissed a TRAC action as moot when the FCC issued the requested order); In re United Mine Workers of Am. Int l Union, 190 F.3d 545, 548 (D.C. Cir. 1999) (describing an order partially dismissing a petition for a writ of mandamus as moot when the agency issued one of two regulations requested by petitioners); Oil, Chem. & Atomic Workers Int l Union v. Zegeer, 768 F.2d 1480, 1483-84 (D.C. Cir. 1985) (noting dismissal of petition for an order compelling an agency to issue an emergency standard when the agency took final action on the issue while the petition was pending). -5-
USCA Case #11-5121 Document #1319507 Filed: 07/19/2011 Page 7 of 8 CONCLUSION For the foregoing reasons, the petition for writ of mandamus should be denied as moot. Respectfully submitted, TONY WEST Assistant Attorney General BETH S. BRINKMANN Deputy Assistant Attorney General MARK B. STERN MELISSA N. PATTERSON (202) 514-1201 Attorneys, Appellate Staff Civil Division, Room 7230 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001 JULY 2011-6-
USCA Case #11-5121 Document #1319507 Filed: 07/19/2011 Page 8 of 8 CERTIFICATE OF SERVICE I hereby certify that on July 19, 2011 the foregoing was served on the following individuals via ECF/electronic filing: Joseph David Elford Americans for Safe Access 1322 Webster Street Suite 402 Oakland, CA 94612 Carl E. Olsen 130 East Aurora Avenue Des Moines, IA 50313-3654 The foregoing was served on the following individual by U.S. Mail: Michael John Kennedy Law Offices Of Michael Kennedy 425 Park Avenue 26th. Floor New York, NY 10022-0000 /s/melissa N. Patterson MELISSA N. PATTERSON Attorney for the Respondents