Latest court case trying to rechedule marijuana. It was denied Writ of Certiorari by the Supreme Court of the United States January 13th 2020.


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 The appendix contains the lower courts decisions. Lawyers are not paying attention.







(FEBRUARY 26, 2018)








No. 17 Civ. 5625 (AKH)

Before: Alvin K. HELLERSTEIN, United States District Judge. ALVIN K. HELLERSTEIN, U.S.D.J.:


 MY Syllabus:

App.33 a
the complaint is that the current scheduling of marijuana violates due process because it lacks a rational basis.


App. 37a


“Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug.” Raich, 545 U.S. at 15. “As of 2005, the D.C. Circuit Court of Appeals had reviewed petitions to reschedule marijuana on five separate occasions over the course of 30 years,


App. 38 a


In order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’’’ Ashcroft, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id


(Facial plausibility:  The deprivation of liberty and property without compelling reasons, therefore without due process of law.)


App. 38a, 39 a

A. Exhaustion and Plaintiffs’ Rational Basis Claim Properly understood, plaintiffs have raised a collateral challenge to the administrative decision not to reclassify marijuana. As such, plaintiffs’ claim premised on the factors found in Section 812 of the CSA is barred because plaintiffs failed to exhaust their administrative remedies. Even if the Court were to reach the merit of plaintiffs’ rational basis claim, I hold that plaintiffs have failed to state a claim under Rule 12(b)(6).


plaintiffs’ claim is an administrative one, not one premised on the constitution.


App. 42 a




To avoid this result, plaintiffs rely on United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973).

Plaintiffs do so in error.


In Kiffer, criminal defendants convicted of marijuana possession challenged the constitutionality of the CSA under the rational basis test. Kiffer, 477 F.2d at 350.


(Kiffer received ineffective assistance of counsel, Judicial review of criminal laws is not rational basis. Judicial review is strict scrutiny. Kiffer suffered actual injury to his “explicit  enunciated” constitutional right of liberty by incarceration.  “The only cases that require a stricter standard of review are those that involve an infringement of a right explicitly enunciated in the Constitution or otherwise recognized as fundamental. United States v. United States v. Kiffer, 477 F.2d 349at 352 (2d Cir. 1973)




App. 43 a.

Kiffer is also distinguishable on a more fundamental ground: The Court held that imposing the exhaustion requirement would also be unduly burdensome to criminal defendants challenging their convictions. See Kiffer, 477 F.2d at 353 (“Second, even assuming the existence of a viable administrative remedy, application of the exhaustion doctrine to criminal cases is generally not favored because of ‘the severe burden’ it imposes on defendants.” (quoting McKart v. United States, 395 U.S. 185,197 (1969))). Those concerns are less forceful in the civil context, especially given that the DEA no longer takes the position that it is categorically barred by a treaty from considering reclassification petitions.2


2 Plaintiffs also claim that the administrative review process is futile because the relevant executive officials are biased against their cause and will not faithfully consider the relevant medical evidence. See FAC, ECF 23, at ¶¶ 357-70. But this claim is undercut by the statutory scheme, which specifically requires these officials to defer to HHS on scientific and medical questions. See 21 U.S.C. § 811(b)


App. 45a

it is clear that Congress had a rational basis for classifying marijuana in Schedule I, and executive officials in different administrations have consistently retained its placement there. 5


5 Under the rational basis test, “a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights . . .


( Does congress have compelling reasons for proscribing marijuana to deprive liberty and property)


(The criminal classification of marijuana as a controlled dangerous substance caused actual injury to plaintiffs and deprived defendant’s constitutional rights of liberty and property and protected privacy)



App. 48 a

[Article III Courts Standing] To satisfy the “irreducible constitutional minimum of standing,” a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016) (internal quotation marks omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).


Specifically, “[t]o) establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’’’ Id. at 1548 (quoting Lujan, 504 U.S. at 560). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements.” Id. at 1547.




App. 49. a

1. Mr. Nesbitt was charged in 2013 with participating in a marijuana conspiracy, and he pled guilty in 2014. See id. at ¶¶ 2- 3. He claims that he continues to face collateral consequences as a result of his conviction, including difficulty finding employment.


Thomas Motley, like Mr. Nesbitt, is an African-American male who was indicted and pled guilty to violating federal law by participating in a conspiracy to distribute and cultivate marijuana. See Declaration of Michael S. Hiller, ECF 43, Ex. 14, ¶¶ 1-3. Mr. Motley also states that although he would like to participate in a minority-owned business loan or grant, he believes that his prior felony conviction would make him ineligible to do so. See id. at ¶¶ 5-6


(Mr. Nesbit and Mr. Motley have standing to claim that they have suffered actual injury to their constitutional rights. They have been deprived of liberty and property without compelling reasons to proscribe marijuana, therefore without due process of law.  Judicial review of criminal laws is strict scrutiny. There are no compelling reasons, government interest, when there is no victim of a crime.



App 50. A

Although the affidavits demonstrate that members of the CCA  have suffered an injury-in-fact, 8 the pleadings fail to demonstrate that “it is likely that a favorable ruling will redress” those injuries. Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007). Plaintiffs’ FAC seeks “a permanent injunction . . . restraining Defendants from enforcing the CSA as it pertains to Cannabis.” FAC, ECF 23, at 97. But plaintiffs have not shown that, were they to receive a favorable ruling that marijuana cannot be treated as a Schedule I drug, their prior convictions would be undone.9


8 Defendants are correct that City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) forecloses plaintiffs’ claims that they have standing based on a fear of future arrest. See Plaintiffs’ Memorandum of Law in Opposition, ECF 44, at 56. However, each of the individuals who submitted an affidavit suffers from a forward-looking injury-in-fact that is concrete, particularized, and imminent. For instance, Mr. Nesbitt claims, with documentation from a potential employer, that his prior conviction has harmed his ability to obtain future employment. As described above, other affiants have similar claims that are sufficient to demonstrate an injury-in-fact.


9 The Supreme Court recently held for the first time that a guilty plea, standing alone, does not bar a criminal defendant from challenging the constitutionality of the statute of his conviction on direct appeal Class v. United States, No. 16-424, 2018 WL 987347, at *8 (U.S. Feb. 21, 2018). But the challenge here is even more attenuated, for plaintiffs are not challenging their underlying convictions, either on direct appeal or in habeas proceedings. Plaintiffs have presented no basis, even a speculative one, explaining how a favorable decision in this case would redress their alleged injuries.



App. 51 a

(holding that a law violates the equal protection clause if passed with discriminatory purpose). If a plaintiff plausibly pleads such a claim, a law is then subject to strict constitutional scrutiny, which holds that “such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).


(Criminalizing marijuana is property discrimination.)


App.53 a

Plaintiffs also appear to assert a fundamental right to use medical marijuana, which is then used to prop up plaintiffs’ remaining causes of action. Plaintiffs frame their claim as “the right of Plaintiffs to exercise personal autonomy and to preserve their health and lives.” See Plaintiffs’ Memorandum of Law in Opposition, ECF 44, at 68. No such fundamental right exists. Every court to consider the specific, carefully framed right at issue here has held that there is no substantive due process right to use medical marijuana. The Ninth Circuit, on remand from the Supreme Court’s decision in Raich I, analyzed this question in detail, holding that “federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.” Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 2007). Other courts have reached the same conclusion. See, e.g., United States v. Washington, 887 F. Supp. 2d 1077, 1102 (D. Mont. 2012), adhered to on reconsideration, No. CR 11-61-M-DLC, 2012 WL 4602838 (D. Mont. Oct. 2, 2012) (rejecting a fundamental right to use medical marijuana and applying rational basis review); Elansari v. United States, No. CV 3:15-1461, 2016 WL 4386145, at *3 (M.D. Pa. Aug. 17, 2016) (noting “that ‘no court to date has held that citizens have a constitutionally fundamental right to use medical marijuana’ (quoting United States v. Wilde, 74 F. Supp. 3d 1092, 1095 (N.D. Ca. 2014))).11 Accordingly, plaintiffs’ substantive Due Process claim is dismissed.


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