Washington et al v. Sessions et al

Filing 64

OPINION AND ORDER GRANTING MOTION TO DISMISS re: 36 MOTION to Dismiss, filed by United States Drug Enforcement Agency, Jefferson Beauregard Sessions, III, Robert W. Patterson, United States Department of Justice, United States of America. For the reasons stated herein, defendants' motion to dismiss the complaint is granted. Plaintiffs have already amended their complaint once, and I find that further amendments would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). The clerk is instructed to terminate the motion (ECF 36), mark the case as closed, and tax costs as appropriate. (Signed by Judge Alvin K. Hellerstein on 2/26/2018) (ras)

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MARVIN WASHINGTON, et al.,
Plaintiffs,
-againstJEFFERSON BEAUREGARD SESSIONS, III, et
al.,

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I

OPINION AND ORDER
GRANTING MOTION TO
DISMISS
17 Civ. 5625 (AKH)

Defendants.

--------------------------------------------------------------- x
ALVIN K. HELLERSTEIN, U.S.D.J.:
Plaintiffs Marvin Washington, Dean Bartell, Alexis Bartell, Jose Belen, Sebastien
Cotte, Jagger Cotte, and the Cannabis Cultural Association, Inc. ("Plaintiffs") filed this action on
July 24, 2017. Broadly stated, plaintiffs assert an as-applied constitutional challenge to the
Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., which classifies marijuana as a
Schedule I drug-the highest level of drug classification. Plaintiffs attempt to demonstrate the
CSA's constitutional infirmity in a number of ways, but the graveman of the complaint is that the
current scheduling of marijuana violates due process because it lacks a rational basis.
On September 8, 2017, plaintiffs moved the Court for an order to show cause why
a temporary restraining order should not issue. The Court denied plaintiffs' motion that same
day, and issued a summary order confirming that result on September 11, 201 7. See Order
Denying a Temporary Restraining Order, ECF 26. After initially indicating a willingness to
proceed into discovery, the Court reconsidered and entered a briefing schedule advancing
defendants' motion to dismiss the complaint, see Order, ECF 33, filed October 13, 2017 under
Federal Rules 12(b)(l) and 12(b)(6). The Court held oral argument on February 14, 2018. For
the reasons discussed in this opinion, the defendants' motion to dismiss the complaint is granted.

··'

Background
In response to President Nixon's "war on drugs," Congress passed the
Comprehensive Drug Abuse and Control Act of 1970. Gonzales v. Raich, 545 U.S. 1, 10 (2005).
"Title II of the Act, codified at 21 U.S.C. § 801 et seq., is the Controlled Substances Act
('CSA'), and it 'repealed most of the earlier antidrug laws in favor of a comprehensive regime to
combat the international and interstate traffic in illicit drugs."' United States v. Green, 222 F.
Supp. 3d 267, 271 (W.D.N.Y. 2016) (quoting Raich, 545 U.S. at 7, 12). Congress made a
number of findings associated with the CSA, including that "[ t ]he illegal importation,
manufacture, distribution, and possession and improper use of controlled substances have a
substantial and detrimental effect on the health and general welfare of the American people."
21 U.S.C. § 802(2).
"The Act covers a large number of substances, each of which is assigned to one of
five schedules; this statutory classification determines the severity of possible criminal penalties
as well as the type of controls imposed." United States v. Kiffer, 477 F.2d 349, 350 (2d Cir.
1973); see also 21 U.S.C. § 812(a). When the CSA was enacted, Congress classified marijuana
as a Schedule I drug. "This preliminary classification was based, in part, on the recommendation
of the Assistant Secretary of [the Department of Health, Education, and Welfare] that marihuana
be retained within schedule I at least until the completion of certain studies now underway."

Raich, 545 U.S. at 14 (internal quotation marks omitted). In order to fall within Schedule I,
Congress

determine~

that a drug must have: ( 1) "a high potential for abuse," (2) "no currently

accepted medical use in treatment in the United States," and (3) "a lack of accepted safety for use
of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(l). The chart
below describes the CSA's various schedules and the findings required for each:

2

Statutory Factors
Schedule I

Schedule II

Schedule III

Schedule IV

Schedule V

High potential for abuse, no currently accepted
medical use in treatment, and a lack of
accepted safety for use of the drug under
medical supervision. See 21 U.S.C. § 812(b)(l).
High potential for abuse, some currently
accepted medical use in treatment, and abuse
may lead to severe psychological or physical
dependence. See 21 U.S.C. § 812(b)(2).
Potential for abuse less than substances in
Schedules I and II, some currently accepted
medical use in treatment, and abuse may lead
to moderate or low physical dependence or
high psychological dependence.
See 21 U.S.C. § 812(b)(3).
Potential for abuse less than substances in
Schedule III, some currently accepted medical
use in treatment, and abuse may lead to limited
physical or psychological dependence.
See 21 U.S.C. § 812(b)(4).
Potential for abuse less than substances in
Schedule IV, some currently accepted medical
use in treatment, and abuse may lead to limited
physical or physical dependence.
See 21 U.S.C. § 812(b)(5).

Examples
Heroin, LSD,
Marijuana

Morphine, Codeine,
Amphetamine
(Adderall ®),
Methamphetamine
(Desoxyn ®)
Tylenol with Codeine
®, Ketamine,
Anabolic Steroids

Alprazolam (Xanax
®), Diazepam
(Valium®)

Robitussin AC ®

After placing marijuana in Schedule I, "Congress established a process for
reclassification, vesting the Attorney General with the power to reclassify a drug 'on the record
after opportunity for a hearing."' Green, 222 F. Supp. 3d at 271(quoting21 U.S.C. § 81 l(a)).
Before beginning the reclassification process, the Attorney General must seek a scientific and
medical evaluation from the Secretary of Health and Human Servi_ces ("HHS"), whose findings
are binding on the Attorney General. Id. § 811 (b). In the relevant implementing regulations, the

3

.

].

..
Attorney General has delegated this reclassification authority to the Drug Enforcement Agency
("DEA"). See 28 C.F .R. § 0.1 OO(b).
The CSA also provides an avenue for interested parties to petition the DEA to
reclassify drugs, consistent with the medical and scientific data provided by HHS. See 21 U.S.C.
§ 81 l(a) (providing that the Attorney General may reclassify drugs after an on the record hearing
"on the petition of any interested party"); see also 21 C.F.R. § 1308.43(a). If a petitioner
receives an adverse ruling from the DEA, 21 U.S.C. § 877 provides for judicial review of the
DEA's determination in the D.C. Circuit, or another appropriate Circuit:
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.
"Despite considerable efforts to reschedule marijuana, it remains a Schedule I
drug." Raich, 545 U.S. at 15. "As of2005, the D.C. Circuit Court of Appeals had reviewed
petitions to reschedule marijuana on five separate occasions over the course of 30 years, [and
upheld] the DEA's determination in each instance." Green, 222 F. Supp. 3d at 272. In 2011, the
DEA denied a rescheduling petition, see Denial of Petition to Initiate Proceedings to Reschedule
Marijuana, 76 Fed. Reg. 40,552 (July 8, 2011), and the D.C. Circuit upheld the DEA's
determination in Americans for Safe Access v. Drug Enforcement Administration, 706 F.3d 438,
449 (D.C. Cir. 2013). The DEA denied another rescheduling petition as recently as 2016. See

4

Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53,767 (Aug.
12, 2016). 1

Discussion
Defendants filed a motion to dismiss the complaint under Federal Rules 12(b)( 1)
and (b)(6). In ruling on a motion to dismiss, the court must accept the factual allegations in the
complaint as true and draw all reasonable inferences in favor of the nonmoving party. Gregory
v. Daly, 243 F.3d 687, 691 (2d Cir. 2001), as amended (Apr. 20, 2001). 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 At!. 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.

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 ifthe 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).
The parties first present a threshold question of statutory interpretation, the
resolution of which illustrates that plaintiffs' claim is an administrative one, not one premised on
the constitution. Plaintiffs contend that, in analyzing the rationality of the CSA, Congress should
be bound by the factors set out in 21 U.S.C. § 812(b)(l), which include a finding that a drug has

1

It appears that one challenge to the DEA's determination was filed in the Tenth Circuit, but the petition was
dismissed as untimely. See Order, Krumm v DEA, 16-9557 (10th Cir. Dec. 15, 2016).

5

"no currently accepted medical use in treatment in the United States." Alternatively, defendants
suggest that the Section 812 factors apply only to reclassification determinations by the Attorney
General, as set forth in 21 U.S.C. § 81 l(a). Put differently, the question is whether the statutory
factors outlined in Section 8 l 2(b )( 1) are imputed into the constitutional analysis, thereby binding
Congress to particular factors in conducting rational basis review.
A fair reading of the statute reveals that the factors set out in Section 812 apply
only to the Attorney General's reclassification proceedings-they do not bind Congress on
rational basis review. As explained above, 21 U.S.C. § 81 l(a) vests the Attorney General with
the authority, through his or her designated agent, to reclassify particular drugs ifhe or she: (1)
"finds that such drug or other substance has a potential for abuse, and," (2) "makes with respect
to such drug or other substance the findings prescribed by subsection (b) of section 812 of this
title." And 21 U.S.C. § 812(b) states that "[t]he findings required for each of the schedules are as
follows," and thereafter lists the three relevant factors, including, as relevant here, whether the
drug has any currently accepted medical uses. Read in context with Section 811 (a), it is clear
that the factors listed in 21 U.S.C. § 812(b)(l) were intended to apply only to the executive
officials in reclassification proceedings.
More fundamentally, as a constitutional matter I am persuaded by the logic of the
opinion of Judge Wolford of the Western District of New York in United States v. Green, who
analyzed this question as follows:
It is difficult to conclude that marijuana is not currently
being used for medical purposes-it is. There would be no rational
basis to conclude otherwise. And if that were the central question
in this case, Defendants' argument would have merit-but it is not
the central question .... The issue is not whether it was rational for
Congress or the DEA to conclude that there is no currently
accepted medical use for marijuana-that would be the issue if a
6

claim were brought in a circuit court challenging the DEA's
administrative determination. Rather, the constitutional issue for
equal protection purposes is, simply, whether there is any
conceivable basis to support the placement of marijuana on the
most stringent schedule under the CSA.
222 F. Supp. 3d at 275-80.
By framing their claim in terms of the statutory factors outlined in Section
8 l 2(b)(1 ), plaintiffs' lawsuit is best understood as a collateral attack on the various
administrative determinations not to reclassify marijuana into a different drug schedule. As
such, plaintiffs' claim is barred because plaintiffs failed to exhaust their administrative remedies.
The exhaustion rule generally requires "that parties exhaust prescribed administrative remedies
before seeking relief from the federal courts." McCarthy v. Madigan, 503 U.S. 140, 144-45
(1992); see also Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003), as amended (July 24, 2003)
("The general rule is that 'a party may not seek federal judicial review of an adverse
administrative determination until the party has first sought all possible relief within the agency
itself."' (quoting Howell v. INS, 72 F.3d 288, 291 (2d Cir.1995))). "Exhaustion is required
because it serves the twin purposes of protecting administrative agency authority and promoting
judicial efficiency." McCarthy, 503 U.S. at 145. However, because federal courts have a
"virtually unflagging obligation to exercise the jurisdiction given them," three exceptions to the
exhaustion requirement have emerged. Id. at 146 (internal quotation marks omitted) (quoting
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817-18 (1976)). The
Supreme Court has explained these exceptions as follows:
First, requiring resort to the administrative. remedy may
occasion undue prejudice to subsequent assertion of a court action.
Such prejudice may result, for example, from an unreasonable or
indefinite timeframe for administrative action .... Second, an
administrative remedy may be inadequate because of some doubt
7

..

'i'

.. )

as to whether the agency was empowered to grant effective relief..
. . Third, an administrative remedy may be inadequate where the
administrative body is shown to be biased or has otherwise
predetermined the issue before it.
Id. 145-49 (internal quotation marks omitted) (quoting Gibson v. Berryhill, 411 U.S. 564, 575

n.14 (1973)). None of these exceptions applies here.
Plaintiffs first suggest that the relief they seek-a declaration that the CSA is
unconstitutional-differs from the relief available in an

administra~ive

forum, which is limited to

rescheduling based on the criteria in 21 U.S.C. § 812(b)(l). But while framed in different terms,
these two remedies are ultimately two sides of the same coin. Although plaintiffs couch their
claim in constitutional language, they seek the same relief as would be available in an
administrative forum-a change in marijuana's scheduling classification-based on the same
factors that guide the DEA's reclassification determination. As a district court in this Circuit
recently explained, "[w]hen [this] argument is dissected, it essentially becomes an attack on the
scheduling of marijuana based on the criteria set forth in the statute." Green, 222 F. Supp. 3d. at
273. The exhaustion requirement therefore bars plaintiffs' claims.
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. Responding to this very exhaustion claim, the Second Circuit held that "the
administrative route for these appellants would at best provide an uncertain and indefinitely
delayed remedy," and declined to require administrative exhaustion. Id. at 351-52. But at the
time Kiffer was decided, the designated executive official had taken the position that he was
barred by a treaty from even considering a petition to reclassify marijuana. Green, 222 F. Supp.
3d at 273-74 (noting that "it was doubtful whether an administrative remedy actually existed");
8

see also Kiffer, 477 F.2d at 351-52. The D.C. Circuit later rejected that position. See Nat'/ Org.
for Reform of Marijuana Laws (NORML) v. Ingersoll, 497 F.2d 654 (D.C. Cir. 1974); see also
Nat'/ Org. for Reform of Marijuana Laws (NORML) v. DEA, 559 F.2d 735 (D.C. Cir. 1977).
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
Even if the Court were to reach the merits of plaintiffs' rational basis claim, I
would be bound by precedent to reject it. 3 The Second Circuit has already resolved this question
in United States v. Kiffer, 477 F.2d at 355-57, which upheld the constitutionality of the CSA.
Every other court to consider this issue has held similarly. 4 Even without the benefit of

2

Plamtiffs 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 F AC, 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. § 81 l(b).
3
Plaintiffs rely heavily on United States v. Pickard, 100 F. Supp. 3d 981, 996 (E.D. Cal. 2015), for the proposition
that the CSA is not "msulated from constitutional review by Congressional delegation of authority to an agency to
consider an administrative petition." But as explained above, by raising this challenge based on the factors set out in
21 U.S.C. § 812(b)(l), plaintiffs' claim is properly understood as a collateral attack on the administrative
determination not to reclassify marijuana. To the extent that plaintiffs attempt to raise a typical rational basis claim
based on whether Congress had any conceivable basis to classify marijuana in Schedule I, which would not be the
subject of an administrative proceeding, such a claim is barred by precedent ..
4
See, e.g, Sacramento Nonprofit Collective v. Holder, 552 F. App'x 680, 683 (9th Cir. 2014) (rejecting rational
basis challenge to the CSA); Am.for Safe Access, 706 F.3d at 449 (upholding the DEA's decision not to reclassify
marijuana in a different schedule under the more stringent "substantial evidence" standard); United States v
Oakland Cannabis Buyers· Co-op, 259 F. App'x 936, 938 (9th Cir. 2007); United States v. White Plume, 447 F.3d
106 7. 1075 (8th Cir. 2006) (holding that the CSA' s enforcement against industrial hemp production was rationally
related to a legitimate government purpose); United States v Greene, 892 F.2d 453, 455 (6th Cir. 1989); Umted

9

precedent, 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 For instance, the DEA's most recent denial of a petition to reclassify marijuana listed a
number of public health and safety justifications for keeping marijuana in Schedule I. See Denial
of Petition to Initiate Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53,767 (Aug. 12,
2016). The reasons offered by the DEA included marijuana's "various psychoactive effects," id.
at 53,774, its potential to cause a "decrease in IQ and general neuropsychological performance"
for adolescents who consume it, id., and its potential effect on prenatal development, id. at
53,775. Even if marijuana has current medical uses, I cannot say that Congress acted irrationally
in placing marijuana in Schedule I.
In sum, the Second Circuit has already determined that Congress had a rational
basis to classify marijuana as a Schedule I drug, see United States v. Kiffer, 477 F.2d at 355-57,
and any constitutional rigidity is overcome by granting the Attorney General, through a
designated agent, the authority to reclassify a drug according to the evidence before it and based
on the criteria outlined in 21 U.S.C. § 812(b)(I). There can be no complaint of constitutional
error when such a process is designed to provide a safety valve of this kind. 6 The argument is

States v Fry, 787 F.2d 903, 905 (4th Cir. 1986); United States v. Fogarty, 692 F.2d 542, 547 (8th Cir. 1982); United
States v Mtddleton, 690 F.2d 820, 823 (11th Cir. 1982)
5
Under the rational basis test, "a statutory classification that neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against equal protection challenge ifthere is any reasonably
conceivable state of facts that could provide a rational basis for the classification." F C. C. v. Beach Commc 'ns, Inc,
508 U.S. 307, 313 (1993). "On rational-basis review, a classification in a statute ... comes to [the court] bearing a
strong presumption of validity ... and those attackmg the rationality of the legislative classification have the burden
'to negative every conceivable basis which might support it."' Id. at 314-15 (quoting Lehnhausen v. Lake Shore
Auto Parts Co, 410 U.S. 356, 364 (1973)).
6
As the Second Circuit explained in Kiffer:

The provisions of the Act allowing periodic review of the control and
classification of allegedly dangerous substances create a sensible mechanism for
dealing with a field in which factual claims are conflicting and the state of
scientific knowledge is still growing. The question whether a substance belongs
in one schedule rather than another clearly calls for fine distmctions, but the

10

made that Attorney General's refusal, through the DEA, to quickly resolve reclassification
petitions creates sloth. But that sloth, if presented in the appropriate case, can be overcome
through a mandamus proceeding in the appropriate Court of Appeals. Judicial economy is not
served through a collateral proceeding of this kind that seeks to undercut the regulatory
machinery on the Executive Branch and the process of judicial review in the Court of Appeals.
I emphasize that this decision is not on the merits of plaintiffs' claim. Plaintiffs'
amended complaint, which I must accept as true for the purpose of this motion, claims that the
use of medical marijuana has, quite literally, saved their lives. One plaintiff in this case, Alexis
Bortell, suffers from intractable epilepsy, a severe seizure disorder that once caused her to
experience multiple seizures every day. After years of searching for viable treatment options,
Alexis began using medical marijuana. Since then, she has gone nearly three years without a
single seizure. Jagger Cotte, another plaintiff in the case, suffers from a rare, congenital disease
known as Leigh's disease, which kills approximately 95% of those afflicted before they reach the
age of four. After turning to medical marijuana, Jagger's life has been extended by two years
and his pain has become manageable. I highlight plaintiffs' experience to emphasize that this
decision should not be understood as a factual finding that marijuana lacks any medical use in
the United States, for the authority to make that determination is vested in the administrative
process. In light of the decision of the Second Circuit, see United States v. Kiffer, 477 F.2d at
355-57, and the several decisions of the D.C. Circuit, see, e.g., Am. for Safe Access, 706 F.3d at
449, I am required to dismiss plaintiffs' rational basis claim.

statutory procedure at least offers the means for producing a thorough factual
record upon which to base an informed judgment.
Kiffer, 477 F.2d at 357.

11

B.

Standing and Plaintiffs' Equal Protection Claim
The Cannabis Cultural Association, Inc. ("CCA"), a nonprofit entity dedicated to

advancing the business footprint of marginalized groups in the cannabis industry, alleges that the
CSA violates the Equal Protection Clause because it was passed with racial animus. See FAC,
ECF 23, ~~ 406-21. Defendants claim that the CCA lacks standing to maintain this claim and,
alternatively, that the CCA has failed to state an Equal Protection claim. I hold that the CCA
lacks standing to maintain its Equal Protection claim because plaintiffs have failed to
demonstrate that a favorable decision is likely to redress plaintiffs' alleged injuries.
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, 154 7 (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.
Plaintiffs do not claim that the CCA has standing to sue on its own behalf, but
rather is suing on behalf of its members. In general,
an association has standing to bring suit on behalf of its members
when: (a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are germane to
the organization's purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit.

12

Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d I 04, 123
(2d Cir. 2017) (internal quotation marks omitted) (quoting Hunt v. Washington Apple Advert.

Comm 'n, 432 U.S. 333, 343 (1977)).
In opposing this motion, plaintiffs submitted three affidavits from members of the
CCA: Kordell Nesbitt, Leo Bridgewater, and Thomas Motley. See Declaration of Michael S.
Hiller, ECF 43, Ex. 12-14. Kordell Nesbitt, the first affiant, is an African American male and a
member of the CCA. See Declaration of Michael S. Hiller, ECF 43, Ex. 12, ~~ 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. See id.

at~~

7-9. Leo Bridgewater, the

second affiant, is a veteran of the U.S. Army who previously served as a telecommunications
specialist. See Declaration of Michael S. Hiller, ECF 43, Ex. 13,

~~

1-2. Mr. Bridgewater began

using medical cannabis in 2015 and claims that, as a result, he cannot renew the government
security clearance necessary to work as a private military contractor. See id. at~~ 7-9. 7 Finally,
Thomas Motley, like Mr. Nesbitt, is an African-American male who was indicted and pied 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 fl~ 5-6.
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

7

Although Mr. Nesbitt and Mr. Motley claim that they are African-American, Mr. Bridgewater's affidavit does not
disclose his ethnicity. This technicality does not affect the Court's reasoning.
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

13

...

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 Nor have plaintiffs shown, for instance, that those within the government in
charge of security clearance determinations would no longer include marijuana in a urine test if
plaintiffs are successful in having marijuana reclassified to a different drug schedule. Although
one could imagine how plaintiffs might connect these dots, plaintiffs bear the burden of pleading
each clement of standing, and their various submissions have failed to do so. Spokeo, 136 S. Ct.
at 1547.
Alternatively, even if plaintiffs had standing, I hold that plaintiffs fail to state a
claim under Rule 12(b)(6). To survive a motion to dismiss an Equal Protection claim, plaintiffs
must plausibly plead that "the decisionmaker ... selected or reaffirmed a particular course of
action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an
identifiable group." Pers. Adm 'r of Massachusetts v. Feeney, 442 U.S. 256, 279 ( 1979); see also
Washington v. Davis, 426 U.S. 229, 239 (1976) (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

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.

14

constitutional only if they are narrowly tailored measures that further compelling governmental
interests." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
Plaintiffs' racial animus claim is based on a patchwork of statements by former
Nixon Administration officials, many of which were made after the passage of the CSA. See
FAC, ECF 23,

at~~

235-52. Even taking these allegations as true, plaintiffs have failed to

demonstrate that the relevant decisionmaker-Congress-passed the CSA and placed marijuana
in Schedule I in order to intentionally discriminate against African Americans. See Feeney, 442
U.S. at 279 (recognizing that the relevant "decisionmaker" in the case was the "state
legislature"); United States v. Then, 56 F.3d 464, 466 (2d Cir. 1995) (considering, in the context
of the sentencing disparity between powder cocaine and crack cocaine, whether "Congress"
acted "with discriminatory intent in adopting the sentencing ratio at issue"). Plaintiffs have cited
no authority for the proposition that various statements by Executive Branch officials, such as
those at issue here, which are untethered from the Congressional process, can support an Equal
Protection claim premised on racial animus. Therefore, even if plaintiffs could demonstrate
standing, I would still hold that plaintiffs failed to state a claim.
C.

Remaining Constitutional Claims

Plaintiffs advance a number of additional constitutional challenges to the
placement of marijuana in Schedule I under the CSA, independent of plaintiffs' rational basis
challenge based on medical evidence, largely in order to subject the CSA to heightened
constitutional scrutiny. Because plaintiffs have failed to state a claim under any constitutional
theory, all of plaintiffs' remaining claims are also dismissed.
Plaintiffs first claim that the CSA's regulation of marijuana violates the
Commerce Clause. There is no need to belabor this point. The Supreme Court has held, in no

15

uncertain terms, that "intrastate manufacture and possession of marijuana for medical purposes,"
even if legal under state law, does not exceed Congress's authority under the Commerce Clause.
Raich, 545 U.S. at 15. I am bound to apply this precedent and plaintiffs' claim under the
Commerce Clause is therefore dismissed. 10
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

10

Apart from simply attempting to relitigate the issues firmly decided in Raich, plaintiffs argue that "the
classification of cannabis as a Schedule I drug under the CSA is void under the doctrine of desuetude." Plaintiffs'
Memorandum of Law in Opposition, ECF 44, at 92. Plaintiffs' argument borders on frivolous. "Desuetude is the
'obscure doctrine by which a legislative enactment is judicially abrogated following a long period of
nonenforcement."' United States v. Morrison, 596 F. Supp. 2d 661, 702 (E.D.N. Y. 2009) (quoting Note, Desuetude,
119 Harv. L. Rev. 2209, 2209 (2006)). First of all, this civil law doctrine is not applicable in federal courts. See
DC. v. John R Thompson Co., 346 U.S. 100, 113-14 (1953) ("The failure of the executive branch to enforce a law
does not result in its modification or repeal."). And even if this doctrine were viable, plaintiffs have not shown that
the federal government has entirely abandoned application of the CSA as applied to marijuana.

16

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.
Plaintiffs also raise an ill-defined right to travel claim. The thrust of this claim
appears to be that because plaintiffs are more likely to be arrested for possession of medical
marijuana if they travel by airplane or enter federal buildings (where they might be subject to
search), the CSA unconstitutionally infringes on their right to travel. Saenz v. Roe, 526 U.S. 489,
500 (1999) (defining one element of the right to travel as "protect[ing] the right of a citizen of
one State to enter and to leave another State"). This claim fails for substantially the same
reasons already discussed above, for no fundamental right to use medical marijuana exists.
As a general matter, the right to travel has been unqerstood primarily as a
restriction on state-created obstructions to interstate travel, not as a bar on federal regulatory
schemes. See, e.g., Minnesota Senior Fed'n, Metro. Region v. United States, 273 F.3d 805, 810
(8th Cir. 2001) (noting that "the Court's other modem cases ... have applied the federal
constitutional right to travel to state legislation that had a negative impact on travel between the
various states," rather than to a "federal statutory regime because it allegedly deters interstate
travel"). The CSA is facially neutral as to travel-it does not impose any bar on plaintiffs'
movement from state to state. See Five Borough Bicycle Club v. City of New York, 483 F. Supp.
2d 351, 362 (S.D.N.Y. 2007), ajf'd, 308 F. App'x 511 (2d Cir. 2009) ("A statute implicates the
constitutional right to travel when it actually deters such travel, or when impedance of travel is
its primary objective, or when it uses any classification which serves to penalize the exercise of

11
Plaintiffs largely rely on Cruzan v Director, Missouri Department of Health, 497 U.S. 261, 278 (1990) for the
proposition that "a competent person has a constitutionally protected liberty interest m refusing unwanted medical
treatment." But Cruzan speaks only to one's right to refuse medical treatment, not a positive right to obtain any
particular medical treatment.

17

that right" (internal quotation marks omitted) (quoting Soto-Lopez v. NYC. Civil Serv. Comm 'n,
755 F.2d 266, 278 (2d Cir. 1985))).
Instead, the CSA makes possession and distribution of certain controlled
substances, including marijuana, illegal, regardless of one's movement between states. Properly
understood, plaintiffs' complaint is simply that they are deterred from travel because they fear
that they are more likely to be arrested for marijuana possession at airport security checkpoints.
Such an interpretation of the right to travel, if adopted, would invalidate any number of bans on
controlled substances or firearms simply because the enforcement of these facially neutral laws
might have some conceivable, tangential impact on travel. Plaintiffs have identified no authority
for such an expansive interpretation of the right to travel, and the Court has not found any. A
suggestion has been made that the CSA presents plaintiffs with a Hobson's choice between their
fundamental right to use medical marijuana and a right to travel. But as explained above, no
such fundamental right to use medical marijuana exists. Plaintiffs' right to travel claim is
therefore dismissed.
For substantially the same reasons, plaintiffs' First Amendment claim also fails.
The core of plaintiffs' claim stems from the fact that Alexis Bartell has previously been invited
to speak with members of Congress in Washington, D.C. about ongoing efforts to decriminalize
medical marijuana, but cannot do so because she cannot fly on an airplane or enter federal
buildings without risking arrest and prosecution for marijuana possession under the CSA. But
the First Amendment protects freedom of speech, first and foremost. To be sure, the Supreme
Court has extended constitutional protection to certain kinds of expressive conduct, but only such
conduct that is "sufficiently imbued with elements of communication to fall within the scope of
the First and Fourteenth Amendments." Spence v. Washington, 418 U.S. 405, 409 (1974); see

18

also United States v. 0 'Brien, 391 U.S. 367, 376 (1968) ("We cannot accept the view that an

apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in
the conduct intends thereby to express an idea."). Accordingly, the First Amendment's
protections have been extended "only to conduct that is inherently expressive," see Rumsfeld v.
Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006), such as burning the

American flag, see Texas v. Johnson, 491 U.S. 397, 406 (1989), or conducting a sit-in to protest
racial segregation, see Brown v. Louisiana, 383 U.S. 131 (1966).
The CSA is not targeted at speech, nor does it directly implicate speech in any
way. Laws of this kind, which are directed as "commerce or conduct," are not implicated by the
First Amendment simply because they impose "incidental burdens on speech." Sorrell v. IMS
Health Inc., 564 U.S. 552, 567 (2011); see also id. ("[R]estritions on protected expression are

distinct from restrictions on economic activity or, more generally, on nonexpressive conduct.").
As the Supreme Court has explained, "every civil and criminal remedy imposes some
conceivable burden on First Amendment protected activities," but such laws do not
automatically warrant First Amendment protection. Arcara v. Cloud Books, Inc., 478 U.S. 697,
706 (1986). Put differently, "the First Amendment is not implicated by the enforcement of'
laws, like the CSA, which are "directed at imposing sanctions on nonexpressive activity." Id. at
707. Were plaintiffs correct, any law regulating possession of illegal substances, firearms, or any
number of other things would be subject to First Amendment scrutiny simply because those who
possess such items risk arrest by carrying them onto federal property. And as explained above,
because there is no fundamental right to use medical marijuana, plaintiffs do not face a Hobson's
choice with respect to the exercise of their constitutional rights.

19

For the reasons stated herein, defendants' motion to dismiss the complaint is
granted. Plaintiffs have already amended their complaint once, and I find that further
amendments would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
The clerk is instructed to terminate the motion (ECF 36), mark the case as closed, and tax costs
as appropriate.
SO ORDERED.
Dated:

azt·~
AL VIN K. HELLERSTEIN

Februar~,2018
New York, New York

United States District Judge

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