Gettman v. Drug Enforcement Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2002 Decided May 24, 2002

No. 01-1182

Jon Gettman and High Times Magazine,
Petitioners

v.

Drug Enforcement Administration,
Respondent

On Petition for Review of an Order of the
United States Drug Enforcement Agency

Michael Kennedy argued the cause and filed the briefs for
petitioners.

Daniel Dormont, Senior Attorney, Drug Enforcement Ad-
ministration, argued the cause for respondent. With him on
the briefs were Michael Chertoff, Assistant Attorney General,
U.S. Department of Justice, and Rose A. Briceno, Trial
Attorney.

 Before: Sentelle, Henderson and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Jon Gettman and High Times
Magazine petition this Court for review of the March 20, 2001
decision of the Drug Enforcement Administration ("DEA")
denying their petition to initiate rulemaking proceedings to
reschedule marijuana under 21 U.S.C. s 811(a). See Drug
Enforcement Administration Notice of Denial of Petition, 66
Fed. Reg. 20038 (April 18, 2001). The DEA contends we
should dismiss the petition for review, arguing that neither
Gettman nor High Times Magazine has standing to bring this
petition. Because we agree with the DEA, we dismiss the
petition.

I. Background

The Controlled Substances Act, 21 U.S.C. s 801, et seq.,
sets forth initial schedules of drugs and controlled substances
in 21 U.S.C. s 812(c). However, Congress established proce-
dures for adding or removing substances from the schedules
(control or decontrol), or to transfer a drug or substance
between schedules (reschedule). 21 U.S.C. s 811(a). This
responsibility is assigned to the Attorney General in consulta-
tion with the Secretary of Health and Human Services
("HHS"). Id. s 811(b). The Attorney General has delegated
his functions to the Administrator of the DEA. 28 C.F.R.
s 0.100(b). Current schedules are published at 21 C.F.R.
ss 1308.11-1308.15.

There are three methods by which the DEA may initiate
rulemaking proceedings to revise the schedules: (1) by the
DEA's own motion; (2) at the request of HHS; (3) on the
petition of any interested party. 21 U.S.C. s 811(a); 21
C.F.R. s 1308.43(a). Before initiating rulemaking proceed-
ings, the DEA must request a scientific and medical evalua-
tion from HHS and a recommendation. The statute requires
the DEA and HHS to consider eight factors with respect to
the drug or controlled substance. 21 U.S.C. s 811(b), (c).
These factors are:

 (1) Its actual or relative potential for abuse.

(2) Scientific evidence of its pharmacological effect, if
known.

(3) The state of current scientific knowledge regarding
the drug or other substance.

(4) Its history and current pattern of abuse.

(5) The scope, duration, and significance of abuse.

(6) What, if any, risk there is to the public health.

(7) Its psychic or physiological dependence liability.

(8) Whether the substance is an immediate precursor of
a substance already controlled under this subchapter.

21 U.S.C. s 811(c). Although the recommendations of HHS
are binding on the DEA as to scientific and medical consider-
ations involved in the eight-factor test, the ultimate decision
as to whether to initiate rulemaking proceedings to resched-
ule a controlled substance is made by the DEA. See id.
s 811(a), (b).

Jon Gettman petitioned the DEA in 1995 to initiate rule-
making proceedings under 21 U.S.C. s 811(a) to reschedule
various controlled substances, including marijuana. Subse-
quently High Times Magazine joined with him as a petitioner.
In their petition to DEA, Gettman and High Times claimed
that "there is no scientific evidence that [marijuana has]
sufficient abuse potential to warrant schedule I or II status"
under the Controlled Substances Act. In accordance with 21
U.S.C. s 811(b), the DEA forwarded the petition to HHS in
1997. In 2001, HHS recommended that marijuana remain in
schedule I and the DEA in turn denied the petition. No
action has been taken regarding the other drugs initially
named by Gettman.

Gettman and High Times filed this petition for review of
the DEA's refusal to initiate rulemaking proceedings to re-
schedule marijuana. On our own motion, we ordered supple-
mental briefing on standing, and specifically asked parties to
address the issue of injury.

II. Analysis

Article III, section 2, clause 1 of the United States Consti-
tution limits the "judicial power" of the United States to the
resolution of "cases" or "controversies." Valley Forge Chris-
tian College v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 471 (1982); see Chicago & Grand
Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892). In
order to establish the existence of a case or controversy
within the meaning of Article III, the party must meet
certain constitutional minima. As relevant to this case, these
include the requirement that the party must demonstrate that
it has standing to bring the action. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). "Those who do not possess
Art. III standing may not litigate as suitors in the courts of
the United States." Valley Forge, 454 U.S. at 475-76. Peti-
tioners seem to believe that their "commitment" to their
cause and the alleged importance of their cause is enough to
confer Article III standing. It is not. Sierra Club v. Mor-
ton, 405 U.S. 727, 739 (1972). To satisfy the constitutional
requirement of standing, a plaintiff or petitioner must, at an
"irreducible constitutional minimum ... demonstrate that it
has suffered a concrete and particularized injury that is: (1)
actual or imminent, (2) caused by, or fairly traceable to an act
that the litigant challenges in the instant litigation, and (3)
redressable by the court." Florida Audubon Soc'y v. Bent-
sen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc) (internal
quotation marks and citations omitted); see Lujan, 504 U.S.
at 560-61. Neither Gettman nor High Times magazine meets
this standard.

A. 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.
s 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 part[ies]" under
21 U.S.C. s 811(a)(2). Petitioners misunderstand the law.
Petitioners may be "interested part[ies]" 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 insuffi-
cient 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 "automatic[ally]" confer
Article III standing when that right is deprived. See id. at
27-28. The Constitution requires a concrete and particular-
ized 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 protecta-
ble "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 Constitu-
tion and "may exercise power only 'in the last resort and as a
necessity.' " Allen v. Wright, 468 U.S. 737, 752 (1984) (quot-
ing Chicago & Grand Trunk Ry., 143 U.S. at 345).

Therefore, contrary to petitioners' suggestion, it is not at
all anomalous that Congress could permit them as "interested
part[ies]" (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, 194 F.3d 72,
74 (D.C. Cir. 1999). In other words, the "criteria for estab-
lishing '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 con-
crete, as required by the Constitution, they lack standing to
appear before an Article III court.

B. Injury In Fact

Petitioners bear the burden of establishing an injury in
fact. See Lujan, 504 U.S. at 561. Neither petitioner meets
this burden.

Petitioner Gettman argues that he will suffer "economic or
competitive injury" from the DEA's decision not to initiate a
rescheduling rulemaking for marijuana because he is "a pub-
lic policy professional qualified to research, advise, invest, and
profit from the development of medical marijuana." Gettman
asserts that the schedule I classification of marijuana con-
strains his "ability to research economic development in this
area and to sell his services as a policy analyst and/or
professor." Thus, Gettman contends that the DEA's order
has caused him injury "by narrowing the universe of custom-
ers of consulting services and also by stymieing his ability to
legally conduct clinical and social research on marijuana, its
effects and medical utility." Gettman's recitation of his inter-
est and the injury to it fall far short of establishing a
judicially protected interest or a judicially remediable injury.
His desire to achieve vague objectives with relation to mari-
juana and his supposition that the DEA's failure to take the
action he requested will retard the achievement of those goals
does not cross the Article III threshold. "[A] mere 'interest
in a problem,' no matter how longstanding the interest and no
matter how qualified the organization is in evaluating the

problem, is not sufficient by itself...." Sierra Club v.
Morton, 405 U.S. at 739. Although the Supreme Court
announced that standard in construing the Administrative
Procedure Act, its applicability to standing analysis in general
is obvious, and in any event this case, like Sierra Club,
involves the construction of the APA.

Completing the inadequacy of Gettman's argument is the
purely speculative nature of the harm and its remediability.
There is no way to know whether anyone would beat a path to
Gettman's door were the DEA to begin the reevaluation of
marijuana. This sort of speculative claim falls far short of
establishing the "core constitutional component that a plain-
tiff must allege." Allen v. Wright, 468 U.S. at 738. That is,
it does not "allege personal injury fairly traceable to the
defendant's allegedly unlawful conduct and likely to be re-
dressed by the requested relief." Id. Not only is it sheer
speculation and conjecture to claim that the DEA could have
generated business of some sort for Gettman by commencing
the rulemaking, the remedy of that supposed injury depends
entirely upon "the independent action of some third party not
before the court." Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 42 (1976).

In Simon, Allen v. Wright, and numerous other cases, the
courts have reiterated that such speculative claims dependent
upon the actions of third parties do not create standing for
the purposes of establishing a case or controversy under
Article III. In short, Gettman has set forth a speculative
injury dependent upon the conduct of third parties not before
the court, at best reciting injury to his philosophical interest.
We wish to make clear once again what the Supreme Court
has long dictated:

Recognition of standing in such circumstances would
transform the federal courts into "no more than a vehicle
for the vindication of the value interests of concerned
bystanders" ... Constitutional limits on the role of the
federal courts precludes such a transformation.

Allen v. Wright, 468 U.S. at 756 (quoting United States v.
SCRAP, 412 U.S. 669, 687 (1973)).

 With respect to High Times Magazine, petitioners argue
that it has associational standing to bring this action. That
theory fails. "An association only has standing to bring suit
on behalf of its members when its members would otherwise
have standing to sue in their own right, the interests it seeks
to protect are germane to the organization's purpose, and
neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit."
Fund Democracy, 278 F.3d at 25 (emphasis added); see
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 181 (2000). High Times Magazine stum-
bles on the first step. It does not have any members. "In
determining whether an organization that has no members in
the traditional sense may nonetheless assert associational
standing, the question is whether the organization is the
functional equivalent of a traditional membership organiza-
tion." Fund Democracy, 278 F.3d at 25 (citing Hunt v.
Washington State Apple Adver. Comm'n, 432 U.S. 333, 342-
45 (1977); American Legal Found. v. FCC, 808 F.2d 84, 89-
90 (D.C. Cir. 1987)). High Times claims it is "committed to
the decriminalization of marijuana" and that many of its
"readers and subscribers are dependent on marijuana to treat
medical illnesses." But readership is not the same as mem-
bership. As in American Legal Foundation and our more
recent decision in Fund Democracy, petitioners have not
shown that its "readers and subscribers" played any role in
selecting its leadership, guiding its activities, or financing
those activities. See Fund Democracy, 278 F.3d at 26.
Therefore High Times Magazine has no basis for asserting
associational standing, no matter how "committed to the
decriminalization of marijuana" it may be.

Petitioners' off-hand assertion that the magazine itself has
suffered direct injury insofar as the schedule I status of
marijuana creates a "chilling effect" on its First Amendment
rights to investigate and report on the "medical and cultural
realities of marijuana" is unexplained and probably unexplain-
able. Granted, "[t]he Constitution gives significant protection
from overbroad laws that chill speech within the First
Amendment's vast and privileged sphere." Ashcroft v. Free

Speech Coalition, 122 S. Ct. 1389, 1399 (2002). However, the
bald recitation that the failure to commence a rulemaking
somehow chills speech is not only insufficient, it is at least a
non sequitur and close to an absurdity. Moreover, nothing
about the DEA's decision involves speech or expression as
such. Cf. United States v. O'Brien, 391 U.S. 367 (1968).
High Times has shown no way in which it or anyone else is
deterred from writing or speaking in any way by the lack of
the rulemaking.

Finally, petitioners contend that this Court and others have
permitted the filing of petitions for review of DEA orders by
parties who were "similarly situated to Jon Gettman and
High Times Magazine," and for that reason, their petition
should be heard. See NORML v. DEA, 559 F.2d 735 (D.C.
Cir. 1977); Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987);
Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936
(D.C. Cir. 1991) & 15 F.3d 1131 (D.C. Cir. 1994). Whether
the petitioners in these cases were "similarly situated" to
Gettman and High Times is an uncertainty at best as the
National Organization for Reform of Marijuana Laws
("NORML") and the Alliance for Cannabis Therapeutics may
have members, whereas High Times does not. However,
even if petitioners were to establish that the prior cases were
parallel, they are not controlling. In none of these cases did
the Court hold that the parties before it had established
constitutional standing. Where a court has simply assumed
standing, that assumption creates no precedent upon which
future litigants may rely. This is well established. In Coali-
tion for Preservation of Hispanic Broadcasting v. FCC, 893
F.2d 1349 (D.C. Cir. 1990), we considered a claim that our
decision in Shurberg Broadcasting v. FCC, 876 F.2d 902 (D.C.
Cir. 1989), compelled the finding of standing in the case
before us. We declared that "[t]he various opinions in Shur-
berg Broadcasting v. FCC, 876 F.2d 902 (D.C. Cir. 1989),
assumed standing and did not assess the seriousness of
Shurberg's quest," and went on to hold that "cases in which
jurisdiction is assumed are not authority for the existence of
jurisdiction." Hispanic Broad., 893 F.2d at 1365 n.1 (citing
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,

119 (1984)). As we are only "bound by holdings," cf. Alexan-
der v. Sandoval, 121 S. Ct. 1511, 1517 (2001), a case where the
standing issue was not confronted cannot be taken as "author-
ity" for the existence of jurisdiction here. Although a court
may raise standing sua sponte (as we have done here), our
failure to do so in the past does not preclude us from doing so
now. Thus, these cases provide no basis for finding petition-
ers have suffered an injury in fact, much less that they have
standing.

III. Conclusion

Because petitioners Gettman and High Times Magazine
lack standing to bring this petition for review of the DEA's
decision, we dismiss the petition for review. It is

So ordered.