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).