CARL OLSEN, Plaintiff, v. ERIC HOLDER, Attorney General of the United States, MICHELE
LEONHART, Acting Administrator, United States Drug Enforcement Administration, and
HILLARY CLINTON, United States Secretary of State, all in their official capacities,
Defendants.
4:08-cv-00370 RP-RAW
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA, CENTRAL DIVISION
April 27, 2009, Decided
April 27, 2009, Filed
COUNSEL: Carl E. Olsen, Plaintiff, Pro se, Des Moines, IA.
For Mark Filip, Acting Attorney General added per response filed 01/26/09,
Michele Leonhart, Acting Administrator United States Drug Enforcement Administration
per response filed 01/26/09, Hillary Clinton, United States Secretary of State per
response filed 1/26/09, Defendants: Christopher D Hagen, LEAD ATTORNEY, U S Attorney's
Office, Des Moines, IA; Tamara L. Ulrich, LEAD ATTORNEY, U S DEPT OF JUSTICE - CIVIL
DIVISION FEDERAL PROGRAMS BRANCH, WASHINGTON, DC.
JUDGES: ROBERT W. PRATT, U.S. DISTRICT COURT Chief Judge.
OPINION BY: ROBERT W. PRATT
OPINION
ORDER
On September 15, 2008, Plaintiff, Carl Olsen, filed an "Original Complaint
for Declaratory and Injunctive Relief." Clerk's No. 1. Plaintiff's action asserts
that the current scheduling of marijuana as a Schedule I controlled substance is
unlawful under the Controlled Substances Act of 1970 ("CSA"). Specifically,
Plaintiff contends that marijuana "no longer meets the statutory requirement
for inclusion in Schedule I of the CSA" because several states have determined
that marijuana has a legitimate medical use, in contradiction to the CSA's requirement
that a Schedule I drug have "no currently accepted medical use in treatment
in the United States." Pl.'s Compl. at 1; 21 U.S.C. § 812(b)(1)(B). Plaintiff
seeks the following relief: 1) a declaratory ruling that the maintenance of marijuana
on Schedule I is unlawful; 2) an injunction against the Defendants [Footnote 1]
to prevent them from enforcing laws that treat marijuana as a Schedule I drug; and
3) an order requiring the Drug Enforcement Administration to either reschedule marijuana
or to remove marijuana from the drug schedules entirely; and 4) an order requiring
Defendants to initiate proceedings to remove restrictions on marijuana from international
treaties.
Presently before the Court are the following motions: 1) Defendants' Motion to Dismiss
for Lack of Jurisdiction and Failure to State a Claim upon which Relief can be Granted
(Clerk's No. 6), filed November 17, 2008; [Footnote 2] 2) Plaintiff's Motion for
Summary Judgment (Clerk's No. 9), filed November 23, 2008; [Footnote 3] 3) Plaintiff's
Motion for Preliminary Injunction (Clerk's No. 10), filed November 24, 2008; [Footnote
4] and 4) Plaintiff's Motion for Temporary Restraining Order (Clerk's No. 25), filed
January 14, 2009. [Footnote 5] In addition to these matters, Plaintiff has filed
several Motions for Judicial Notice Pursuant to Federal Rule of Evidence 201. Clerk's
Nos. 13, 19, 22, 28, 36. [Footnote 6] As a preliminary matter, the Court grants
Plaintiff's requests for judicial notice, as they merely contain supplementary case
law and documentation that Plaintiff believes relevant to the case.
I. FACTUAL BACKGROUND
Plaintiff is a member and priest in the Ethiopian Zion Coptic Church, a recognized
religion that employs marijuana as "an essential portion of [its] religious
practice." Compl. PP 23-27. Plaintiff has been party to numerous lawsuits seeking,
in one form or another, recognition of what he contends is his religious right to
use marijuana. See State v. Olsen, 315 N.W.2d 1, 8 (Iowa 1982) (concluding
that the State of Iowa had a compelling interest sufficient to override Olsen's
claim that possession of marijuana was permissible as a free exercise of his religion);
United States v. Rush, 738 F.2d 497, 512-13 (1st Cir. 1984) (finding
that Olsen was not entitled to assert a defense based on free exercise of religion
because "[n]o broad religious exemption from the marijuana laws is constitutionally
required"); Olsen v. Drug Enforcement Admin., 776 F.2d 267, 268 (11th
Cir. 1985) (finding that Olsen's request to obtain a religious exemption from the
marijuana laws fell outside the scope of 21 U.S.C. § 811); Olsen v. Drug Enforcement Admin.,
279 U.S. App. D.C. 1, 878 F.2d 1458, 1463 (D.C. Cir. 1989) (rejecting Olsen's claim
that equal protection mandated an exemption for sacramental use of marijuana similar
to the exception for peyote use by Native Americans and further finding that "the
free exercise clause does not compel the DEA to grant Olsen an exemption immunizing
his church from prosecution for illegal use of marijuana"); Olsen v. United States,
541 F.3d 827, 832 (8th Cir. 2008) (finding that Olsen's free exercise and equal
protection claims were barred by collateral estoppel).
In the present case, Plaintiff has adopted a strategy somewhat different from that
asserted in previous cases in his ongoing effort to decriminalize marijuana. Accordingly,
a procedural summary of Plaintiff's activities in relation to the present matter
is appropriate. In previous cases, Plaintiff has generally asserted that he has
a First Amendment entitlement to use marijuana as part of the free exercise of his
religion, or that an exception must be made to the marijuana laws to permit his
religious use of it. Here, however, Plaintiff is not directly asserting either of
these positions. [Footnote 7] Rather, Plaintiff argues that: 1) a drug is only appropriately
listed on Schedule I if it has "no currently accepted medical use in the United
States"; 2) Congress gave the States the authority to determine what constitutes
"accepted medical use"and the Supreme Court has reaffirmed the States'
right to make that determination; 3) twelve states have passed laws finding that
marijuana has "accepted medical use[s]"; 4) because twelve states have
concluded that marijuana has an "accepted medical use," the listing of
marijuana in Schedule I is invalid; and 5) federal enforcement of the CSA with regard
to marijuana is, therefore, unlawful. Plaintiff additionally contends that, because
marijuana is improperly and unlawfully classified as a Schedule I controlled substance,
the Defendants must undertake proceedings to amend any international treaties that
require marijuana to be listed in Schedule I.
In his effort to bring his arguments to fruition, Plaintiff filed a "Petition
for Marijuana Rescheduling" with the Drug Enforcement Administration ("DEA")
on May 12, 2008. Clerk's No. 1.5 (Ex. 12). Therein, Plaintiff asserted the same
arguments as in the present case, namely that marijuana is improperly listed as
a Schedule I controlled substance because twelve states have concluded that marijuana
has an "accepted medical use," contrary to the requirements listed in
21 U.S.C. § 812(b)(1) for inclusion of a substance in Schedule I. Id. The DEA sent
Plaintiff a letter on June 25, 2008, stating that his Petition for Marijuana Rescheduling
had been accepted for filing. Clerk's No. 1.6 (Ex. 16). On August 5, 2008, Plaintiff
sent the DEA a document entitled, "Notice and Deadline to Cease and Desist
Illegal Enforcement of Fraudulant [sic] Marijuana Regulation." Id. (Ex. 17).
Therein, Plaintiff stated that the DEA's "current scheduling of marijuana in
Title 21 Code of Federal Regulations, Section 1308.11 Schedule I, is in violation
of federal law, Title 21 United States Code, Section 903." [Footnote 8] Id.
Plaintiff further stated that failure by the DEA to cease and desist enforcement
of the illegal marijuana regulation within 30 days would result "in a federal
civil injunction being filed against the Drug Enforcement Administration" in
federal court. Id. Having received no further response from the DEA, Plaintiff filed
the present lawsuit on September 15, 2008. Clerk's No. 1.
No provision of this subchapter shall be construed as indicating an intent on the
part of the Congress to occupy the field in which that provision operates, including
criminal penalties, to the exclusion of any State law on the same subject matter
which would otherwise be within the authority of the State, unless there is a positive
conflict between that provision of this subchapter and that State law so that the
two cannot consistently stand together.
In November 2008, the Defendants filed their Motion to Dismiss. Defendants' Motion
first argued that Plaintiff's federal action must be dismissed on the basis that
Plaintiff had not received a final determination from the DEA in regard to his Petition
for Marijuana Rescheduling and that Plaintiff, therefore, had failed to exhaust
his administrative remedies under the Administrative Procedures Act. See 5 U.S.C.
§ 704 (permitting judicial review of agency actions that are "made reviewable
by statute [or] final agency action for which there is no other adequate remedy
in a court"). Plaintiff filed a resistance to the Defendants' Motion to Dismiss
urging that he was not required to exhaust administrative remedies before filing
the present lawsuit.
On December 19, 2008, the DEA issued a nine page letter (the "DEA Letter")
rejecting Plaintiff's Petition for Marijuana Rescheduling and declining to institute
rulemaking proceedings for the purposes of rescheduling marijuana. See Clerk's No.
22. In light of the DEA Letter, the Defendants filed a Reply to Plaintiff's Resistance
to the Motion to Dismiss, conceding that, "[b]ecause Plaintiff has now exhausted
his administrative remedies, that portion of Defendants' motion to dismiss based
on lack of administrative exhaustion is moot." Defs.' Reply at 2. While admitting
that Plaintiff is now "entitled to federal court review of the administrative
decision," however, Defendants maintain that jurisdiction is still improper
because "[r]eview of administrative decisions under the CSA . . . lies exclusively
with the courts of appeal." Id.
On January 16, 2009, one day after the Defendants filed their Reply, Plaintiff "filed
a Petition for Review in the United States Court of Appeals for the Eighth Circuit,
pursuant to 21 U.S.C. § 877, from the 'DEA Letter' of December 19, 2008." Clerk's
No. 28. Despite his filing with the Court of Appeals, Plaintiff maintains that the
present lawsuit is appropriately before this Court on the basis that "[t]his
Court is more qualified to authoritatively interpret the language of the CSA than
the DEA." Pl.'s Supp. Resistance at 2.
II. DEFENDANTS' MOTION TO DISMISS
The Defendants contend that Plaintiff's Complaint must be dismissed because this
Court lacks subject matter jurisdiction over Plaintiff's claims pursuant to Federal
Rule of Civil Procedure 12(b)(1). Defendants further assert that Plaintiff has failed
to state a claim upon which relief may be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6).
A. Standard of Review
A federal district court has subject matter jurisdiction over "all civil actions
arising under the Constitution, laws, or treaties of the United States." 28
U.S.C. § 1331. Federal Rule of Civil Procedure 12(b)(1) provides that a party may
raise the defense of "lack of jurisdiction over the subject matter" in
a motion before answering the complaint filed in any action. Fed. R. Civ. P. 12(b)(1).
Federal courts have a duty in every case to determine whether the prerequisite of
subject matter jurisdiction has been satisfied. Bradley v. American Postal Workers
Union, AFL-CIO, 962 F.2d 800, 802 n.3 (8th Cir. 1992). Because subject
matter jurisdiction is a threshold consideration, a district court has "broader
power to decide its own right to hear the case than it has when the merits of the
case are reached." Bellecourt v. United States, 994 F.2d 427, 430
(8th Cir. 1993) (quoting Osborn v. United States, 918 F.2d 724, 729 (8th
Cir. 1990)).
In order for the Court to dismiss a claim under Federal Rule of Civil Procedure
12(b)(1), the opposing party must successfully challenge the claim "on its
face or the factual truthfulness of its averments." Titus v. Sullivan,
4 F.3d 590, 593 (8th Cir. 1993). Facial challenges are limited to analyzing the
face of the complaint. Biscanin v. Merrill Lynch & Co., Inc., 407 F.3d
905, 907 (8th Cir. 2005). Under a facial challenge, each factual allegation concerning
jurisdiction is presumed to be true. Titus, 4 F.3d at 593. Thus, the moving
party's motion can be "successful if the plaintiff fails to allege an element
necessary for subject matter jurisdiction." Id. Factual challenges
invoke facts other than those pled in the complaint. Osborn v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990). If a party mounts a factual challenge, "the
Court may look outside the pleadings to determine whether jurisdiction exists, and
the nonmoving party loses the benefit of favorable inferences from its factual statements."
Dolls, Inc. v. City of Coralville, 425 F. Supp. 2d 958, 970 (S.D. Iowa
2006). [Footnote 9]
B. Law and Analysis
The CSA is a comprehensive federal regulatory scheme that makes it unlawful for
any person to "knowingly or intentionally . . . manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance," or to "possess a controlled substance," except "as
authorized" by the CSA. 21 U.S.C. §§ 841(a), 844(a). Specifically, the CSA
subdivides controlled substances into five "schedules." See 21 U.S.C.
§ 812(a). Schedule V controlled substances are the least regulated, whereas Schedule
I substances are subject to the most stringent controls and the harshest penalties.
The CSA provides the following guidelines for the scheduling of controlled substances:
(b) Placement on schedules; findings required
Except where control is required by United States obligations under an international
treaty, convention, or protocol, in effect on October 27, 1970, and except in the
case of an immediate precursor, a drug or other substance may not be placed in any
schedule unless the findings required for such schedule are made with respect to
such drug or other substance. The findings required for each of the schedules are
as follows:
(1) Schedule I.--
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment
in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under
medical supervision.
(2) Schedule II.--
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has a currently accepted medical use in treatment
in the United States or a currently accepted medical use with severe restrictions.
(C) Abuse of the drug or other substances may lead to severe psychological or physical
dependence.
(3) Schedule III.--
(A) The drug or other substance has a potential for abuse less than the drugs or
other substances in schedules I and II.
(B) The drug or other substance has a currently accepted medical use in treatment
in the United States.
(C) Abuse of the drug or other substance may lead to moderate or low physical dependence
or high psychological dependence.
(4) Schedule IV.--
(A) The drug or other substance has a low potential for abuse relative to the drugs
or other substances in schedule III.
(B) The drug or other substance has a currently accepted medical use in treatment
in the United States.
(C) Abuse of the drug or other substance may lead to limited physical dependence
or psychological dependence relative to the drugs or other substances in schedule
III.
(5) Schedule V.--
(A) The drug or other substance has a low potential for abuse relative to the drugs
or other substances in schedule IV.
(B) The drug or other substance has a currently accepted medical use in treatment
in the United States.
(C) Abuse of the drug or other substance may lead to limited physical dependence
or psychological dependence relative to the drugs or other substances in schedule
IV.
21 U.S.C. § 812.
Plaintiff's assertion that marijuana's presence on Schedule I is unlawful is based
on a selective reading of § 812, and ignores other relevant language in § 812 and
in the CSA in general. Section 812(a) provides for the establishment of the five
schedules. Section 812(a), however, also specifically provides that the five schedules
"shall initially consist of the substances listed in this section." 21
U.S.C. § 812(a). Marijuana was listed on Schedule I at the time of the CSA's enactment,
under § 812(c), which provides that "Schedules I, II, III, IV, and V shall,
unless and until amended pursuant to section 811 of this title, consist of the following
drugs or other substances. . . ." 21 U.S.C. § 812(c) (emphasis added); 21 U.S.C.
§ 812 (c)(1)(c)(10) (listing "marihuana" on Schedule I); see also 21 U.S.C.
§ 802(6) (providing that a "controlled substance" is "a drug or other
substance . . . included in schedule I, II, III, IV, or V of part B of this subchapter").
Section 812(b) then provides a forward-looking component to be used in future scheduling
determinations, providing with limited exceptions that "a drug or other substance
may not be placed in any schedule unless the findings required for such schedule
are made with respect to such drug or other substance." 21 U.S.C. § 812(b).
"In enacting the statutory classifications of controlled substances, Congress
expressly provided that its initial designation of the schedules would remain in
effect "unless and until amended pursuant to section 811 of [the CSA]."
United States v. Schrock, 855 F.2d 327, 331 (6th Cir. 1988); see also Nat'l
Organization for Reform of Marijuana Laws (NORML) v. Bell, 488 F.Supp.
123, 141 (D.D.C. 1980) ("In making the intial determination, Congress placed
marijuana in Schedule I. The clear meaning of section 812(c) is that Congress intended
marijuana to remain in Schedule I until such time as it might be reclassified by
the Attorney General on the basis of more complete scientific information about
the drug."); United States v. Huerta, 547 F.2d 545, 547 (10th Cir.
1977) ("We are convinced that the clear intent of Congress was that the schedules
should remain as initially adopted until changed by action of the Attorney General.");
United States v. Monroe, 408 F. Supp. 270, 274 (N.D. Cal. 1976) ("The
clear import of [the "unless and until amended" language in § 812(c)]
is that the substances initially listed by Congress on the schedules that it provided
are to remain controlled substances until they are expressly removed from the schedules
pursuant to section 811."). Thus, even accepting as true Plaintiff's proposition
that marijuana does not meet the statutory criteria for inclusion on Schedule I
outlined in 21 U.S.C. § 812(b)(1), the fact remains that marijuana was specifically
named as a Schedule I controlled substance and will remain so until such time as
that classification is amended or removed pursuant to the provisions of § 811.
Congress provided "a comprehensive reclassification scheme" in § 811 of
the CSA. United States v. Fogarty, 692 F.2d 542, 548 (8th Cir. 1982). Section
811 provides that the Attorney General [Footnote 10] "may by rule" add
drugs to a schedule or transfer a drug from one schedule to another if the Attorney
General determines that the drug or substance has a potential for abuse and that
the drug or substance otherwise meets the scheduling criteria under § 812(b). 21
U.S.C. § 811(a)(1)(A)-(B). Likewise, the Attorney General may remove a drug or substance
from the schedules if he finds that the substance no longer meets the requirements
for inclusion in any of the five schedules. Id. § 811(a)(2). Section 811(c) provides
that the following factors with respect to the drug or substance under consideration
are "determinative of control or removal" from the schedules:
(1) Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled
under this subchapter.
21 U.S.C. § 811(c). Before undertaking any scheduling, rescheduling, or descheduling
determination, however, the Attorney General must "gather[] the necessary data
[and] request from the Secretary [of Health and Human Services] a scientific and
medical evaluation, and [the Secretary's] recommendations, as to whether such drug
or other substance should be so controlled or removed as a controlled substance."
21 U.S.C. § 811(b). In making this evaluation and recommendation, the Secretary
"shall consider factors (2), (3), (6), (7), and (8) [enumerated above] and
any scientific or medical considerations involved in paragraphs (1), (4), and (5)."
Id. "The recommendations of the Secretary to the Attorney General shall be
binding on the Attorney General as to such scientific and medical matters. . . ."
Rulemaking proceedings by the Attorney General may be initiated by the Attorney
General's own motion, at the request of the Secretary of Health and Human Services,
or "on the petition of any interested person." 21 U.S.C. § 811(a).
The CSA provides a methodology for appeal of § 811 determinations by the Attorney
General:
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. Findings of fact by the Attorney General,
if supported by substantial evidence, shall be conclusive.
21 U.S.C. § 877.
Plaintiff insists that, despite the detailed regulatory scheme set out for modification
of the controlled substances schedules in the CSA, this Court has the authority
to find that marijuana is not properly listed in Schedule I and to order the Defendants
to cease and desist from enforcing laws arising from marijuana's classification
as such. The Court disagrees and finds that it lacks jurisdiction over the present
matter because Plaintiff's proper and exclusive remedy is one he is already pursuing
in parallel litigation, namely, he must petition the Attorney General for a re-
or descheduling determination and, upon an adverse ruling, appeal the Attorney General's
determination to the proper United States Court of Appeals in conformity with 21
U.S.C. § 877.
"Where the intent of Congress is clear to require administrative determination,
either to the exclusion of judicial action or in advance of it, a strong showing
is required, both the inadequacy of the prescribed procedure and of impending harm,
to permit short-circuiting the administrative process." Aircraft & Diesel
Equip. Corp. v. Hirsch, 331 U.S. 752, 773-74, 67 S. Ct. 1493, 91 L. Ed.
1796 (1947). Given the precise language of the CSA, the Court finds it clear that
Congress intended for marijuana to remain on Schedule I "unless and until"
a re- or descheduling determination is made pursuant to the detailed guidelines
articulated in § 811. See United States v. Burton, 894 F.2d 188, 192 (6th
Cir. 1990) ("[I]t has repeatedly been determined, and correctly so, that reclassification
is clearly a task for the legislature and the attorney general and not a judicial
one."); United States v. Wables, 731 F.2d 440, 450 (7th Cir. 1984)
("We hold that the proper statutory classification of marijuana is an issue
that is reserved to the judgment of Congress and to the discretion of the Attorney
General."); United States v. Middleton,
690 F.2d 820, 823 (11th Cir. 1982) ("The determination of whether new evidence
regarding either the medical use of marijuana or the drug's potential for abuse
should result in a reclassification of marijuana is a matter for legislative or
administrative, not judicial judgment."). Given this clear intent by Congress
that rescheduling determinations be made in accordance with the specific guidelines
of § 811 and the fact that neither Plaintiff's Complaint nor any of his additional
filings can be reasonably construed as alleging that the administrative process
in § 811 is inadequate, the Court finds that jurisdiction in this forum is improper.
Plaintiff acknowledges the existence of the administrative procedures of § 811 and
the fact that exclusive jurisdiction to appeal from an adverse DEA administrative
determination lies with the Courts of Appeals. Nonetheless, Plaintiff insists that
because he is seeking a declaration that marijuana is improperly classified as a
Schedule I controlled substance, he need not follow the typical administrative review
process. Plaintiff cites
Monson v. DEA, 522 F. Supp. 2d 1188, 1194 (D.N.D. 2007) in support
of this proposition.
In Monson,
two North Dakota farmers with state licenses to cultivate industrial hemp sought
a declaration that they could not be subjected to federal prosecution under the
CSA for engaging in the state-licensed activity. 522 F. Supp. 2d at 1191. The DEA
argued that the district court lacked subject matter jurisdiction over the case
because § 877 vested exclusive jurisdiction in the Courts of Appeals to review "final
decision[s]" under the CSA. Id. at 1194. The district court rejected
the DEA's jurisdictional argument, concluding that the plaintiffs were not appealing
a final decision of the DEA, but rather were simply requesting a declaratory ruling
that industrial hemp was not a controlled substance subject to regulation under
the CSA. Id. at 1198. Relying on Eighth Circuit precedent, the Monson court determined
that the plaintiff farmers could be prosecuted for growing industrial hemp, despite
state authorization to do so, because industrial hemp fell squarely within the definition
of marijuana in the CSA. Id. at 1200 ("The fact that the North Dakota
Legislative Assembly has chosen to regulate the growth of Cannabis in a manner contrary
to federal law does not change its status as a Schedule I controlled substance under
federal law.") (citing
United States v. White Plume, 447 F.3d 1067 (8th Cir. 2006)).
Plaintiff contends that "[s]imilar to the plaintiffs in Monson v. DEA, the
Plaintiff here seeks a declaration that the Controlled Substances Act does not apply
to the Plaintiff's use of marijuana as a religious sacrament because marijuana is
currently misclassified." Pl.'s Supp. Resistance at 6. The Court finds Monson easily distinguishable.
In Monson,
the plaintiff farmers argued that industrial hemp did not fall within the definition
of "marijuana" in the CSA, i.e., that industrial hemp was never a controlled
substance intended to be regulated by the CSA in the first instance. In the present
case, Plaintiff does not assert that marijuana was never a controlled substance
or that the inclusion of marijuana as a Schedule I substance at the time the CSA
was enacted was improper. Rather, he contends that marijuana no longer meets the
criteria for inclusion on Schedule I because several states have determined that
it has an "accepted medical use in treatment in the United States" pursuant
to 21 U.S.C. § 812(b)(1)(B). In short, the relief that Plaintiff seeks is relief
Congress expressly anticipated in its formulation of the CSA. See 21 U.S.C. § 811(a)
(authorizing the Attorney General to transfer a substance between schedules or to
"remove any drug . . . from the schedules if he finds that [it] does not meet
the requirements for inclusion on any schedule"). Furthermore, Plaintiff's
argument is one for which Congress provided a specific and detailed administrative
avenue of relief, as well as a means for appealing the denial of such relief. The
Court, therefore, concludes that the present lawsuit amounts to nothing more than
an attempt to circumvent the clear Congressional intent to have scheduling determinations
made by the Attorney General, consistent with the factors in § 811 and subject to
review only by the Courts of Appeals. [Footnote 11]
III. CONCLUSION
For the reasons stated herein, Plaintiff's Motions for Judicial Notice Pursuant
to Federal Rule of Evidence 201 (Clerk's Nos. 13, 19, 22, 28, 36) are GRANTED. The
Court, however, finds that it lacks subject matter jurisdiction over the present
action. Having exhausted his administrative remedies by petitioning the DEA to reschedule
marijuana, Plaintiff's only recourse is to pursue an appeal of the DEA's adverse
decision to the appropriate Court of Appeals, consistent with the provisions of
21 U.S.C. § 877. Accordingly, Defendants' Motion to Dismiss for Lack of Jurisdiction
and Failure to State a Claim upon which Relief can be Granted (Clerk's No. 6) is
GRANTED. Plaintiff's Motion for Summary Judgment (Clerk's No. 9), Plaintiff's Motion
for Preliminary Injunction (Clerk's No. 10), and Plaintiff's Motion for Temporary
Restraining Order (Clerk's No. 25) are DENIED as moot.
IT IS SO ORDERED
Dated this 27th day of April, 2009.
/s/ Robert W. Pratt
ROBERT W. PRATT, Chief Judge
U.S. DISTRICT COURT