Standing to Petition the DEA

On January 28, a local attorney and I petitioned the DEA to grant an exemption to federal regulations for the Iowa Medical Cannabidiol program, Iowa Code Chapter 124E (2019), similar the one granted to the Native American Church for the religious use of peyote.  See 21 C.F.R. § 1307.03 (2019) and 21 C.F.R. § 1307.31 (2019).  Medical cannabidiol and peyote are both federal Schedule 1 controlled substances, as well as Iowa Schedule 1 controlled substances.  Medical cannabidiol is exempt from the Iowa Controlled Substances Act, Iowa Code § 124E.12(4) (2019), when used for medical purposes and peyote is exempt from the Iowa Controlled Substance Act when used for religious purposes, Iowa Code § 124.204(8) (2019).  One could presume the religious exemption exists because of the First Amendment to the U.S. Constitution guaranteeing religious freedom, and it then follows that a state medical cannabis law should be exempt because of the Tenth Amendment to the U.S. Constitution guaranteeting state autonomy and self-determination.  The DEA grants exemptions and it must do so even-handedly.

Before we filed the DEA petition, we were talking about people who might have standing to file the petition.  We talked about a medical cannabidiol card holder and someone being denied assistance from the Veterans Administration (VA) in getting a cannabidiol card.  However, we filed the petition without anyone with standing to appeal if we get an adverse ruling.  The DEA could ignore our lack of standing and grant the exemption on the merits, but we won’t be able to appeal if the DEA decides not to grant the exemption.  I have no personal standing and I’m not an attorney.  The other petitioner is an attorney, but he also has no personal standing.  Unlike me, an attorney can represent a party that does have standing.  I have included more information on “standing” in the federal courts below.

Some people with standing might include (but not necessarily be limited to):

  • Someone who is being denied assistance in getting a card by the VA (this would have to be because of a VA policy, not the doctor simply declining to issue the certification as the Iowa laws allows doctors to decline).
  • A patient or caregiver who has a medical cannabidiol card.
  • A dispensary that has a dispensary license.
  • A manufacturer that has a manufacturing license.
  • A state legislator.
  • The state government.

These are the people we are claiming to represent.  As it stands now, patients, caregivers, dispensaries, and manufactures are walking on egg shells trying to get the program expanded and they haven’t volunteered to come forward to help us with standing and it’s highly unlikely that they will. 

I spent the afternoon on Monday, February 18, at the state capitol talking with legislators and state administrative officials.  Help should logically be forthcoming from legislators or a state administrative agency like the Iowa Department of Public Health (IDPH).  Legislators and administrative officials have a vested interest in defending and upholding state law and they are not manufacturers, dispensaries, caregivers, or patients (state officials are not personally at risk, but they do have standing).  I initiated contact with IDPH with this specific request on January 31 and followed up again on February 18 at the state capitol.  A state senator submitted an amendment to a proposed bill, SF 256, that would amend the Iowa Medical Cannabiol Act (Iowa Code Chapter 124E) with language based on our DEA petition.  I have been discussing this with legislator and IDPH for the past couple of years (since Chapter 124E was enacted in 2017), but the DEA petition has now started the clock ticking and it’s time for action.

For those who don’t know what standing is, below is an explanation given by the United States Court of Appeals for the District of Columbia Circuit.

Standing as an “Interested Party”

Petitioners contend that they have “automatic standing” to appeal the DEA’s denial of their petition because 21 U.S.C. § 811(a)(2) permits “any interested party” to file a petition to initiate rulemaking proceedings.  They suggest that this is enough — since they are the original petitioners before the DEA they should not be “held to heightened requirements for standing in pursuing judicial review of the DEA’s order,” and at no time during the administrative proceedings has the DEA claimed that they are not “interested parties” under 21 U.S.C. § 811(a)(2).  Petitioners misunderstand the law.  Petitioners may be “interested parties” under the statute, and therefore able to petition the agency, and yet not have Article III standing to bring this action in federal court.  See Fund Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C. Cir. 2002).  “Participation in agency proceedings is alone insufficient to satisfy judicial standing requirements.”  Id.  Mere interest as an advocacy group is not enough.  The fact that Congress may have given all interested parties the right to petition the agency does not in turn “automatically”confer Article III standing when that right is deprived.  See id. at 27-28.  The Constitution requires a concrete and particularized injury.  This is not a “heightened requirement,” but rather the bare minimum.  Thus, the grant of a procedural right alone cannot serve as the basis for Article III standing unless “the procedures in question are designed to protect some threatened concrete interest of [petitioners’] that is the ultimate basis of his standing.”  Fund Democracy, 278 F.3d at 28 (quoting Lujan, 504 U.S. at 573 n.8).  The sufficiency of the sort of “interest” allowing an interested party to petition an agency at the will of Congress and the justicially protectable “interest” required for an injury to afford standing in the courts is fundamentally the difference between the political branches on the one hand and the Article III courts on the other.  While it is perfectly proper, and indeed appropriate and even necessary, for the political branches to respond to the abstract, ideological, philosophical or even idiosyncratic wishes and needs of citizens or, for that matter, persons at large, the courts are granted authority only for the purpose delineated in Article III, section 2, clause 1 of the Constitution and “may exercise power only ‘in the last resort and as a necessity.’“  Allen v. Wright, 468 U.S. 737, 752, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984) (quoting Chicago & Grand Trunk Ry., 143 U.S. 339 at 345).

Therefore, contrary to petitioners’ suggestion, it is not at all anomalous that Congress could permit them as “interested parties” (assuming that they are) to participate in agency proceedings, and yet they be unable to seek review in the federal courts.  “Because agencies are not constrained by Article III, they may permit persons to intervene in the agency proceedings who would not have standing to seek judicial review of the agency action.”  Fund Democracy, 278 F.3d at 27; see Envirocare of Utah, Inc. v. NRC, 338 U.S. App. D.C. 282, 194 F.3d 72, 74 (D.C. Cir. 1999).  In other words, the “criteria for establishing ‘administrative standing’ therefore may permissibly be less demanding than the criteria for ‘judicial standing.’”  Envirocare, 194 F.3d at 74.  Thus, unless petitioners can demonstrate an injury in fact, both particularized and concrete, as required by the Constitution, they lack standing to appear before an Article III court.

Gettman v. DEA, 290 F.3d 430, 433-434 (D.C. Cir. 2002).