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The Controlled Substances Act of 1970 places federally regulated substances into one of five schedules depending on the substance’s “potential for abuse, “medical use,” “safety,” and likelihood of physical or psychological “dependence.” See 21 U.S.C. § 812(b). Schedule I is the most restrictive schedule. Marijuana is currently a Schedule I substance. To merit scheduling in Schedule I, a substance must have “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use . . . under medical supervision.”

Stephen Zyszkiewicz, joined by Jeramy Bowers, filed a one-page, handwritten petition to the United States Drug Enforcement Administration (“DEA”) seeking the rescheduling of marijuana in all of its forms under the Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq. Zyszkiewicz stated in his petition that he was in prison after a conviction for selling cannabis. In his petition he claimed the current situation of cannabis in Schedule I completely untenable since half the states allow for medical use.

The DEA wrote a letter in response, stating that Zyszkiewicz’s letter was not in the proper format for a petition but that it welcomed the opportunity to respond to his concerns. The DEA’s letter gave reasons for having denied an earlier rescheduling petition filed by Governors Lincoln Chafee of Rhode Island and Christine Gregoire of Washington State. Zyszkiewicz treated the DEA’s answer as a denial of his petition and unsuccessfully sought judicial review.

Zyszkiewicz petitioned for mandamus in the District Court for the District of Columbia. The district court denied mandamus, and the D.C. Circuit affirmed.

Subsequently in May 2020, Dr. Suzanne Sisley an Arizona-based medical marijuana researcher, Scottsdale Research Institute, LLC (“SRI”), Battlefield Foundation (the non-profit research arm of SRI), and three veterans who claim to suffer ongoing harm from cannabis’ status as a Schedule I drug(collectively, “Petitioners”) asked for judicial review of the DEA’s response to Zyszkiewicz’s petition in the 9th Circuit which has jurisdiction over Arizona (and California). These new petitioners did not seek to intervene in Zyszkiewicz’s petition before the DEA, nor have they filed a petition of their own before the DEA.

The government challenges Petitioners’ standing and argues that Petitioners failed to exhaust their claims before the DEA.

The 9th Circuit held in the published opinion of Sisley v DEA that these petitioners satisfy Article III’s standing requirements, but that they have failed to exhaust their administrative remedies under the CSA. The Court therefore did not reach the merits of Petitioners’ arguments. It therefore dismissed their petition for review on this technical ground.

“We are well aware that reclassification of cannabis is a matter of ongoing active debate,” U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, wrote for the panel. “However, this is not an appropriate case in which to consider that issue.”

In a concurring opinion, Judge Watford said “I write separately to note that, in an appropriate case, the Drug Enforcement Administration may well be obliged to initiate a reclassification proceeding for marijuana, given the strength of petitioners’ arguments that the agency has misinterpreted the controlling statute by concluding that marijuana ‘has no currently accepted medical use in treatment in the United States,”