Federal appeals court set to hear argument in case challenging marijuana’s Schedule I status

By Scottsdale Research Institute | Rose Law Group Reporter

A 3-judge panel of the U.S. Court of Appeals for the Ninth Circuit will be live streaming oral argument this Thursday in Sisley v. DEA, No. 20-71433, a case with momentous implications for federal marijuana policy.

Despite widespread state acceptance of its medical utility, DEA continues to insist marijuana has “no currently accepted medical use in treatment in the United States” and must therefore remain in schedule I. Under DEA’s fivepart test for assessing currently accepted medical use, state acceptance—no matter how widespread—is categorically irrelevant. On Thursday, the Court will hear from a group of scientists and veterans who argue that state-blind standard is contrary to law and common sense.

The petitioners also challenge DEA’s backup argument that even if marijuana did have a currently accepted medical use, the agency would still have to place it in schedules I or II to fulfill its duty under another provision of the Controlled Substances Act, 21 U.S.C. § 811(d)(1), to place substances in the schedule the agency “deems most appropriate to carry out” certain U.S. treaty obligations. Petitioners argue that provision is “an unconstitutional delegation of legislative authority” that “violates core separation of powers principles” by outsourcing the creation of domestic criminal law to international organizations that are in no way accountable to the American people.

Petitioner, Dr. Suzanne Sisley, is an Arizona-based physician and President of Scottsdale Research Institute (SRI). A pioneer in the field of medical marijuana science, Dr. Sisley has fought tirelessly to conduct clinical research on dispensary-quality marijuana’s potential to help veterans and law enforcement officers suffering with treatment-resistant PTSD. Marijuana’s schedule I classification has impeded her efforts to conduct this important research. Scottsdale Research Institute 5436 E Tapekim Rd, Cave Creek AZ 85331 USA Phone: +1 (480) 326-6023

The veteran petitioners served this country and are entitled to medical care from the Department of Veterans Affairs. But because marijuana is a schedule I drug, they must seek—and pay out-of-pocket for—medical advice outside the VA system. The VA also continues to cite marijuana’s schedule I status when refusing to facilitate veteran participation in state-approved marijuana programs.

This is not the first time SRI and Dr. Sisley have squared off against the DEA in federal court. Dr. Sisley’s 2019 mandamus action in the U.S. Court of Appeals for the D.C. Circuit resulted in DEA finally agreeing to revise its regulations and begin processing dozens of applications to cultivate marijuana for research that had been languishing before the agency for years without explanation.

In 2020, she filed suit in Arizona federal district court, claiming DEA and DOJ’s refusal to disclose the legal basis for rules DEA had proposed to govern the licensing of new marijuana manufacturers violated the Freedom of Information Act. Less than two weeks later, DOJ entered into a settlement agreement with Dr. Sisley that required the agency to disclose a secret 2018 Office of Legal Counsel opinion that revealed that the so-called “NIDA Monopoly”—DEA’s longstanding policy requiring all federally sanctioned marijuana researchers to use marijuana sourced from a single farm at the University of Mississippi—was itself contrary to federal and international law. Last month, DEA announced its preliminary approval of SRI and three other companies for licenses to cultivate marijuana for research purposes, ending a policy that had unlawfully impeded marijuana research in the U.S. for more than half a century. Dr. Sisley’s years of hard work and victories in court were instrumental in bringing about this progress.

* * * Sisley v. DEA is case number 20-71433 (9th Cir.). A livestream of the oral argument will be available on the Ninth Circuit’s websitethis Thursday, June 10, 2021, beginning at 1:00 p.m. Pacific Time: https://www.ca9.uscourts.gov/media/live_oral_arguments.php.

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June 2021