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Washington v. Barr

United States Court of Appeals for the Second Circuit

December 12, 2018, Argued; May 30, 2019, Decided

Docket No. 18-859-cv


 [*113]  GUIDO CALABRESI, Circuit Judge:

This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government's classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. See, e.g., Krumm v. DEA, 739 Fed. Appx. 655 (D.C. Cir. 2018) (mem.); Americans for Safe Access v. DEA, 706 F.3d 438, 403 U.S. App. D.C. 388 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131, 304 U.S. App. D.C. 400 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life-or-death threat to their health. We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)'s history of dilatory proceedings. Accordingly, while we concur with the District Court's ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.


The trial court granted Defendants' motion under Federal Rules of Civil Procedure 12(b)(1) and (6) to dismiss Plaintiffs' case. We therefore review its decision de novo, accepting as true all of the complaint's well-pleaded facts. See d'Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., 886 F.3d 216, 222 (2d Cir. 2018); Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).


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925 F.3d 109 *; 2019 U.S. App. LEXIS 16092 **

MARVIN WASHINGTON, DEAN BORTELL as Parent of Infant ALEXIS BORTELL, JOSE BELEN, SEBASTIEN COTTE as Parent of Infant JAGGER COTTE, and CANNABIS CULTURAL ASSOCIATION, Inc., Plaintiffs-Appellants, - v. - WILLIAM PELHAM BARR in his official capacity as United States Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, UTTAM DHILLON in his official capacity as the Acting Administrator of the Drug Enforcement Administration, UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, and UNITED STATES OF AMERICA, Defendants-Appellees,1

Prior History: Appeal from the judgment of the United States District Court for the Southern District of New York (Hellerstein, J.) dismissing, with prejudice, Plaintiffs' complaint for failure to exhaust administrative remedies and, in the alternative, failure to state a claim. Plaintiffs challenged the inclusion of marijuana on Schedule I of the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. [**1]  But Plaintiffs did not first pursue reclassification through the administrative process defined in the Act. Accordingly, their action is premature. We agree with the District Court's ruling that, since Plaintiffs failed to exhaust their administrative remedies, we should not hear their suit at this time. In view of the unusual circumstances of this case, however, we retain jurisdiction in this panel for the sole purpose of promoting speedy administrative review.

Washington v. Sessions, 2018 U.S. Dist. LEXIS 30586 (S.D.N.Y., Feb. 26, 2018)


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Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Responses, Motions to Dismiss, Administrative Law, Judicial Review, Reviewability, Exhaustion of Remedies, Governments, Legislation, Interpretation, Jurisdiction & Venue, Appeals, Appellate Jurisdiction