Will the Federal Courts Force Cannabis Out of Schedule 1?


By Ruben Espinosa, Attorney at Wilson Elser

On Thursday, May 30, 2019, the United States Court of Appeals for the Second Circuit made history by refusing to dismiss a case challenging marijuana’s status under Schedule I of the Controlled Substances Act (CSA). This decision marks the first time a lawsuit challenging the constitutionality of the CSA has survived dismissal.


In 2017, a collection of medical marijuana patients and advocates filed a lawsuit against the United States Drug Enforcement Administration (DEA) in a U.S. district court challenging the inclusion of marijuana under Schedule I of the CSA. The plaintiffs alleged that marijuana’s prohibitive Schedule I status poses serious health risks and unfair economic disadvantages.

The district court originally dismissed the case, finding the plaintiffs should have first exhausted their administrative options before filing the lawsuit in federal court. However, the plaintiffs appealed the district court’s ruling to the United States Court of Appeals for the Second Circuit.

In a new appellate opinion, the Second Circuit has refused to dismiss the case and, more importantly, has retained jurisdiction over the matter to pressure the DEA into conducting a “speedy administrative review.” Although the Second Circuit agrees the plaintiffs prematurely filed the suit in federal court, the Court is concerned with the “DEA’s history of dilatory proceedings” after some plaintiffs “plausibly alleged the current scheduling of marijuana poses a serious, life-or-death threat to their health.”

The Court found the plaintiffs showed that the DEA has historically taken approximately nine years to issue a decision on the reclassification of a drug under the CSA and noted that two child plaintiffs, in particular, would be unduly prejudiced by this delay.

Alexis Bortell and Jagger Cotte suffer from severe medical problems and persuaded the Court that marijuana has saved their lives. Bortell suffers from chronic and intractable seizures while Cotte suffers from Leigh’s disease. The children alleged they exhausted all other traditional medical treatment options before discovering success medicating with cannabis. Additionally, marijuana’s Schedule I classification has prevented Bortell and Cotte from traveling with their medication into states where marijuana is illegal or onto federal lands.

Second Circuit’s Reasoning

The Second Circuit believes the federal government’s own involvement in medical marijuana research and its acceptance of medical marijuana treatment requires the DEA to reexamine marijuana’s Schedule I status. Procedurally, the Second Circuit simply could have upheld the District Court’s decision and dismissed the case; however, it will continue to monitor the case and “take whatever action might become appropriate if the DEA does not act with adequate dispatch.”

Moreover, the Court emphasized that it is “not retaining jurisdiction to review the actions the agency [DEA] may take.” The Court is retaining jurisdiction “exclusively for the purpose of inducing the agency to act promptly.” Therefore, the Court is acting in the role of a supervisory authority over the DEA to ensure the agency timely addresses whether reclassification is needed. The Court will not rule on whether marijuana should be reclassified because jurisdiction over that issue “lies solely in another circuit.” If the DEA fails to timely address this issue, however, it is possible the Court may issue a writ of mandamus, sanction the DEA, or ultimately decide that plaintiffs were correct in bypassing the administrative process.


This ruling is a major milestone for the cannabis industry. It demonstrates the federal court’s unwillingness to leave the legal uncertainty surrounding the Schedule I status of cannabis uncertain. It is possible this ruling will motivate the DEA to reschedule marijuana. Alternatively, this expedited process will generate a comprehensive record that should aid in judicial review down the line. The Second Circuit noted in its decision that the Supreme Court believes creating a comprehensive record can be beneficial in a complex, technical and factual context such as the case at bar. Regardless of the outcome, this decision has pushed the federal conversation on reclassification forward.

Read more from the source: CannabisBusinessExecutive.com

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