Washington v. Barr

18-859-cv
Washington et al. v. Barr et al.

1
18‐859‐cv
Washington et al. v. Barr et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2018

(Argued: December 12, 2018 Decided: May 29, 2019)

Docket No. 18‐859‐cv

MARVIN WASHINGTON, DEAN BORTELL as Parent of Infant ALEXIS
BORTELL, JOSE BELEN, SEBASTIEN COTTE as Parent of Infant JAGGER
COTTE, and CANNABIS CULTURAL ASSOCIATION, Inc.

Plaintiffs‐Appellants,

– v. –

WILLIAM PELHAM BARR in his official capacity as United States Attorney
General, UNITED STATES DEPARTMENT OF JUSTICE, UTTAM DHILLON in
his official capacity as the Acting Administrator of the Drug Enforcement
Administration, UNITED STATES DRUG ENFORCEMENT
ADMINISTRATION, and UNITED STATES OF AMERICA,
Defendants‐Appellees,1

Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.2

1 The Clerk of Court is respectfully requested to amend the official caption as set forth
above.
2 Judge Jed S. Rakoff, of the United States District Court for the Southern District of

New York, sitting by designation.
 2
Appeal from the judgment of the United States District Court for the
Southern District of New York (Hellerstein, J.) dismissing, with prejudice,
Plaintiffs’ complaint for failure to exhaust administrative remedies and, in the
alternative, failure to state a claim. Plaintiffs challenged the inclusion of
marijuana on Schedule I of the federal Controlled Substances Act, 21 U.S.C. § 801
et seq. But Plaintiffs did not first pursue reclassification through the
administrative process defined in the Act. Accordingly, their action is
premature. We agree with the District Court’s ruling that, since Plaintiffs failed
to exhaust their administrative remedies, we should not hear their suit at this
time. In view of the unusual circumstances of this case, however, we retain
jurisdiction in this panel for the sole purpose of promoting speedy
administrative review.
Judge JACOBS dissents in a separate opinion.

Michael S. Hiller, Hiller PC (Lauren A. Rudick,
Fatima V. Afia, and Jason E. Zakai, Hiller PC;
Joseph A. Bondy, on the brief), New York, NY, for
Plaintiffs‐Appellants.

Samuel Dolinger, Assistant United States
Attorney (Benjamin H. Torrance, Assistant
United States Attorney, on the brief), for Geoffrey
S. Berman, United States Attorney for the
Southern District of New York, New York, NY,
for Defendants‐Appellees.

GUIDO CALABRESI, Circuit Judge:

This is the latest in a series of cases that stretch back decades and which

have long sought to strike down the federal government’s classification of

marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 21
 3
U.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655

(D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d

438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin.,

15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in

one significant respect: among the Plaintiffs are individuals who plausibly allege

that the current scheduling of marijuana poses a serious, life‐or‐death threat to

their health. We agree with the District Court that Plaintiffs should attempt to

exhaust their administrative remedies before seeking relief from us, but we are

troubled by the Drug Enforcement Administration (DEA)’s history of dilatory

proceedings. Accordingly, while we concur with the District Court’s ruling, we

do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in

this panel to take whatever action might become appropriate if the DEA does not

act with adequate dispatch.

STANDARD OF REVIEW

The trial court granted Defendants’ motion under Federal Rules of Civil

Procedure 12(b)(1) and (6) to dismiss Plaintiffs’ case. We therefore review its

decision de novo, accepting as true all of the complaint’s well‐pleaded facts. See
 4
d’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., 886 F.3d 216, 222 (2d Cir. 2018);

Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

BACKGROUND

Parties

As this case reaches us at the motion to dismiss stage, we must treat the

well‐pleaded facts alleged in Plaintiffs’ complaint as true. According to their

pleadings, Plaintiffs are several individuals and a membership organization with

an interest in the regulation of marijuana. They assert that the classification of

cannabis as a Schedule I substance under the CSA harms them in one or more

ways.

Marvin Washington is an African‐American businessman working in the

medical marijuana space. He would like to expand his business into whole‐plant

cannabis products and take advantage of the federal Minority Business

Enterprise Program, but, he alleges, he is impeded from so doing by the drug’s

scheduling.

Alexis Bortell and Jagger Cotte are children with dreadful medical

problems. Bortell suffers from chronic and intractable seizures; Cotte from

Leigh’s disease. They allege that they exhausted traditional treatment options
 5
before finding success medicating with cannabis. They claim that marijuana has

saved their lives. Because of its Schedule I classification, however, they cannot

bring their life‐saving medicine with them when they travel onto federal lands or

into states where marijuana is illegal. For Bortell, these travel limitations also

mean that she cannot take full advantage of the veteran’s benefits to which she is

entitled through her father. In addition, both Bortell and Cotte live in constant

fear that their parents might be subject to arrest and prosecution for their

involvement in their children’s medical treatment.

Jose Belen is a veteran of the war in Iraq and suffers from post‐traumatic

stress disorder. After his honorable discharge, he became suicidal and was

adjudged 70% disabled. He alleges that he pursued conventional therapies

unsuccessfully. In despair, he turned to medical marijuana. This, he claims, has

allowed him to manage his symptoms. He further asserts, like Bortell, that

marijuana’s Schedule I classification restricts his ability to travel and to take full

advantage of his veteran’s benefits.

The Cannabis Cultural Association, Inc. (CCA) is a not‐for‐profit

organization dedicated to assisting people of color develop a presence in the

cannabis industry. CCA is particularly focused on the way past convictions for
 6
possession, cultivation, distribution, and use of marijuana have

disproportionately affected people of color and prevented minorities from

participating in the new state‐legal marijuana industry.

Defendants are the United States, the Attorney General, the Department of

Justice, the Acting Administrator of the DEA, and the DEA itself. They are

responsible for implementing the CSA and, more particularly, for updating the

classification of controlled substances. See 21 U.S.C. § 811(a); 28 C.F.R. § 0.100(b).

Proceedings below

Plaintiffs initiated the instant suit in the Southern District of New York in

July 2017 and filed the amended complaint now at issue on September 6, 2017.

Plaintiffs raised numerous arguments for re‐ or descheduling marijuana,

including, as relevant to this appeal, (a) that the classification of marijuana as a

Schedule I drug exceeded Congress’s powers under the Commerce Clause and

was without a rational basis, (b) that the classification was arbitrary and

capricious, (c) that marijuana’s inclusion in the CSA was racially animated and is

an act of viewpoint discrimination, and (d) that the law, as applied to Plaintiffs,

violates variously their (or, in CCA’s case, its members’) First, Fifth, and Ninth
 7
Amendment rights, including, inter alia, substantive due process and the

fundamental right to travel.

The crux of Plaintiffs’ case is that new facts related to the acceptance of

medical marijuana treatment regimens and the federal government’s own

involvement in medical marijuana research require a reexamination of

marijuana’s scheduling under the CSA. The complaint seeks declaratory relief,

as well as an injunction restraining Defendants from enforcing the CSA with

respect to cannabis. In reply, Defendants moved to dismiss.

After argument, the District Court granted the government’s motion and

dismissed Plaintiffs’ suit. It further held that amending the complaint would be

futile. As a threshold matter, the Court determined that Plaintiffs had failed to

exhaust their administrative remedies and that they did not qualify for an

exception to the exhaustion rule. On the merits, the Court did not find Plaintiffs’

arguments persuasive and deemed their claims to be either foreclosed by

precedent or without legal authority. The Court additionally held that CCA

failed to establish that it had standing to pursue its claim, since the relief it

sought would not redress the injury its members had allegedly suffered. The
 8
District Court entered judgment on February 26, 2018, and this appeal timely

followed.

DISCUSSION

We resolve this case without reaching most of Plaintiffs’ disparate

arguments. As the District Court correctly observed, Plaintiffs challenge the

current classification of marijuana as a Schedule I substance under the CSA but

did not first bring this challenge to the agency that has the authority to

reschedule marijuana, the DEA.3 Although the CSA does not expressly mandate

the exhaustion of administrative remedies, our precedents indicate that it is

generally to be required as a prudential rule of judicial administration. We agree

with the District Court that exhaustion was appropriate here. But in light of the

allegedly precarious situation of several of the Plaintiffs, which at this stage of

3The CSA places in the Attorney General the power to schedule, reschedule, or
deschedule drugs. See 21 U.S.C. § 811(a). The Attorney General has promulgated rules
delegating this power to the head of the DEA. See 28 C.F.R. § 0.100(b). The CSA
further requires that, before scheduling, rescheduling, or descheduling a drug, the
Attorney General “shall . . . request from the Secretary [of Health and Human Services]
a scientific and medical evaluation[ of the drug], and [the Secretary’s]
recommendations, as to whether such drug or other substance should be so controlled
or removed,” which “shall be binding on the Attorney General as to such scientific and
medical matters.” 21 U.S.C. § 811(b). The process for reviewing a drug’s scheduling
can be initiated by the Attorney General, the Secretary of Health and Human Services,
or “on the petition of any interested party.” Id. § 811(a).
 9
the proceedings we must accept as true, and their argument that the

administrative process may not move quickly enough to afford them adequate

relief, we retain jurisdiction of the case in this panel, for the sole purpose of

taking whatever action might become appropriate should the DEA not act with

adequate dispatch. We wish to make clear, however, that, in doing so, we

express no view whatever on the merits of Plaintiffs’ case—that is, on whether

marijuana should be listed or not.

Exhaustion of administrative remedies is appropriate here.

The administrative state is a topic of much debate these days. See Gillian

E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The

Administrative State Under Siege, 131 HARV. L. REV. 1 (2017). Distinguished jurists

and scholars have been critical of its expansion. See, e.g., Gutierrez‐Brizuela v.

Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring); Philip

Hamburger, Is Administrative Law Unlawful? (2014). Others understand it as a

central part of our modern republic. See generally Stephen Skowronek, Building a

New American State: The Expansion of National Administrative Capacities, 1877‐1920

(1982); see also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost

One Hundred Years of American Administrative Law (2012) (tracing the roots of the
 10
administrative state back to the Founding). Regardless of one’s point of view, it

remains at the moment a key part of our legal regime. The doctrines that

regulate the relationship between courts and administrative agencies are thus of

particular importance. They attempt to reconcile the advantages of expertise,

flexibility, and efficiency with the safeguards of government under law. See

Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in

America, 1900‐1940 (2014).

Exhaustion of administrative remedies is one such doctrine. It holds that

federal courts should refrain from adjudicating a controversy if the party

bringing suit might obtain adequate relief through a proceeding before an

administrative agency. See Woodford v. Ngo, 548 U.S. 81, 88‐89 (2006) (“[N]o one

is entitled to judicial relief for a supposed or threatened injury until the

prescribed administrative remedy has been exhausted.”) (internal quotation

marks and citations omitted). The duty to exhaust administrative remedies can

spring from legislation or from judicial decision. “Where Congress specifically

mandates [it], exhaustion is required.” McCarthy v. Madigan, 503 U.S. 140, 144

(1992), superseded by statute on other grounds as recognized in Porter v. Nussle, 534

U.S. 516 (2002). “But [even] where Congress has not clearly required
 11
exhaustion,” a court may still impose it as an act of “sound judicial discretion.”

Id.

Before requiring exhaustion as a “rule of judicial administration,” Myers v.

Bethlehem Shipbuilding Corp., 303 U.S. 41, 50 (1938), a court should, however, look

to “legislative purpose, which is of paramount importance.” Patsy v. Bd. of

Regents of State of Fla., 457 U.S. 496, 501 (1982). Simply put, “a court should not

defer the exercise of jurisdiction under a federal statute unless it is consistent

with [congressional] intent.” Id. at 501‐02; see also id. at 502 n.4 (“Even where the

statutory requirement of exhaustion is not explicit, courts are guided by

congressional intent in determining whether application of the doctrine would

be consistent with the statutory scheme.”).

Although the CSA does not mandate exhaustion of administrative

remedies, we agree with the court below that exhaustion here is consistent with

congressional intent and is therefore appropriate. This judgment flows from our

analysis of the text and structure of the Act.

The text of the CSA shows that Congress sought to favor administrative

decisionmaking. In several places, the words of the statute either presume or

create an administrative process to review the classification of drugs under the
 12
Act’s schedules. Thus, 21 U.S.C. § 811(a) instructs the Attorney General to

schedule, reschedule, or deschedule drugs under the Act by rules “made on the

record after opportunity for a hearing pursuant to the rulemaking procedures

prescribed” by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Similarly,

21 U.S.C. § 811(b) details the procedures the Attorney General should follow

when scheduling, rescheduling, or descheduling drugs, including a duty to defer

to the Secretary of Health and Human Services on certain medical and scientific

matters. And § 811(c) lists several factors the Attorney General must consider

before initiating classification. See generally Ams. for Safe Access, 706 F.3d at 439‐

41.

These provisions, among others, establish that Congress intended to

implement scheduling decisions under the CSA through an administrative

process. Requiring would‐be plaintiffs to exhaust that process before turning to

the courts is consonant with that intent. Were plaintiffs able to go directly to

federal court to pursue reclassification, the language Congress devised to erect

an administrative review process would be rendered a nullity. It follows that

construing the Act to allow such behavior as a matter of course would violate a
 13
basic canon of statutory interpretation: that, if possible, every provision of a

statute must be given effect. See, e.g., Williams v. Taylor, 529 U.S. 362, 404 (2000).

The structure of the Act reinforces the language used and hence our

conclusion that Congress wanted aggrieved parties to pursue reclassification

through agencies, and not, in the first instance, through the federal courts. The

CSA relies on an administrative process to operate effectively. When Congress

enacted the CSA, it put, by legislative fiat, certain drugs directly into schedules.

See Controlled Substances Act, Pub. L. No. 91‐513, § 202, 84 Stat. 1236, 1247‐52

(1970) (codified at 21 U.S.C. § 812); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005).

But the statute contemplated that these initial lists would be regularly revised

and updated by the Attorney General, in consultation with the Secretary of

Health and Human Services, and that this would be done according to a specific

procedure and set of standards. See 21 U.S.C. §§ 811(a)‐(c). The Act thus

incorporates an administrative process into its structure. Indeed, its logic and

design depend on administration and agency actions to realize its aims. Not to

require exhaustion in the ordinary case would therefore undermine the text and

structure of the CSA.
 14
In addition, requiring exhaustion is eminently sensible here. The Supreme

Court has told us that exhaustion furthers two important goals. First, it

“protect[s] administrative agency authority.” McCarthy, 503 U.S. at 145. By

“defer[ing] to Congress’ delegation . . . to coordinate branches of Government,”

exhaustion recognizes “that agencies . . . have primary responsibility for the

programs that Congress has charged them to administer.” Id. Second,

exhaustion “promotes judicial efficiency” by giving an administrative agency a

chance to resolve a dispute, thus either rendering controversies moot or

“produc[ing] a useful record for subsequent judicial consideration.” Id.

Both purposes are advanced by requiring exhaustion in the instant case.

The Supreme Court has recognized that protecting agency authority is a

particularly compelling aim where “the agency proceedings in question allow

the agency to apply its special expertise.” Id. (citing McKart v. United States, 395

U.S. 185, 194 (1969)). That is the situation in the case before us now. At its root,

the question raised by Plaintiffs’ suit is whether developments in medical

research and government practice should lead to the reclassification of

marijuana. This is precisely the kind of question that calls for the application of

special knowledge. Exhaustion here “protect[s] administrative agency
 15
authority” by leaving this decision in the first instance to the specialists at the

DEA and the Department of Health and Human Services. Id.

Administrative exhaustion will also promote judicial efficiency in the ways

identified by the Supreme Court. It is conceivable that, in response to a petition

from Plaintiffs along the lines advanced before us now, the DEA would

reschedule marijuana, rendering the current case moot. And if the DEA did not,

the administrative process would generate a comprehensive record that would

aid in eventual judicial review. The Supreme Court has observed that the

creation of such a record can be “especially” beneficial “in a complex or technical

factual context,” id., which is the context involved in the case at bar. Accord

Shenandoah v. U.S. Dep’t of Interior, 159 F.3d 708, 713 (2d Cir. 1998); City of New

York v. Heckler, 742 F.2d 729, 737 (2d Cir. 1984).

Moreover, we think that the kinds of arguments Plaintiffs advance make

this case well suited to administrative evaluation and inappropriate for federal

court determination in the first instance. Plaintiffs do not contend that a decisive

event or singular discovery has rendered the previous classification of marijuana

under the CSA indefensible. Rather, Plaintiffs claim that a shift over time in our

understanding of the uses and dangers of marijuana warrants a change in
 16
marijuana’s classification. This argument raises a complex policy question:

whether the extant regulatory regime continues to advance the CSA’s goals in

light of the current state of our knowledge about the drug. It is possible that the

current law, though rational once, is now heading towards irrationality; it may

even conceivably be that it has gotten there already. Courts are not especially

good at dealing with situations of this sort by themselves. In such circumstances,

dialogue between courts and other law‐defining institutions, like agencies, often

works best. See United States v. Then, 56 F.3d 464, 468‐69 (2d Cir. 1995) (Calabresi,

J., concurring).

A sensible response to our evolving understanding about the effects of

marijuana might require creating new policies just as much as changing old ones.

This kind of constructive governmental work, mixing adjudication and program‐

design, creating policy through the balancing of competing legitimate interests, is

not generally best accomplished by federal courts on their own; it is, however,

the stock‐in‐trade of administration. See, e.g., James M. Landis, The Administrative

Process (1938). Assuming, of course, that one can get the administrative agency

to act.
 17
For the foregoing reasons, requiring exhaustion is appropriate in the

instant case. Although not mandated by Congress, it is consistent with

congressional intent, as manifested in the CSA’s text and structure. And it

advances the goals that the Supreme Court has announced the doctrine serves.

The District Court’s decision to require exhaustion here was therefore correct.

None of the recognized exceptions to the doctrine govern this case at this
time.

Even where exhaustion is seemingly mandated by statute or decisional

law, the requirement is not absolute. The Supreme Court itself has recognized

exceptions to the exhaustion requirement under “three broad sets of

circumstances.” McCarthy, 503 U.S. at 146.

First, exhaustion may be unnecessary where it would be futile, either

because agency decisionmakers are biased or because the agency has already

determined the issue. Id. at 148. It does not appear, however, that this futility

exception currently applies here. Plaintiffs cite to various public statements by

former Attorney General Jefferson Beauregard Sessions III and former Acting

Administrator of the DEA Charles Philip Rosenberg to suggest that the

administrative process would be biased against them. But Plaintiffs’ evidence,

even if given the interpretation they suggest, does not qualify them for the
 18
exception, since the public statements relied on do not implicate the relevant

decisionmaker. Neither Sessions nor Rosenberg remains part of the review

process. Nor, indeed, would they have been the relevant decisionmakers at the

time Plaintiffs initiated their suit. On the medical and scientific claims central to

Plaintiffs’ argument, it is the opinion of the Secretary of Health and Human

Services that matters, not the judgment of the Attorney General or the head of

the DEA. See 21 U.S.C. § 811(b) (stating that “[t]he recommendations of the

Secretary to the Attorney General shall be binding on the Attorney General as to

[the] scientific and medical” evaluation of substances considered for scheduling).

Plaintiffs make no plausible allegations of bias on the part of the Secretary.

Futility on account of bias has, therefore, not been adequately alleged.

The Supreme Court has further stated that exhaustion may be unnecessary

where the administrative process would be incapable of granting adequate relief.

See McCarthy, 503 U.S. at 147. That second exception, too, is inapposite at the

moment. Although Plaintiffs style their claims in many different ways, the

gravamen of their argument is that marijuana should not be classified as a

Schedule I substance under the CSA. Were a court to agree, the remedy would

be to re‐ or deschedule cannabis. It cannot be seriously argued that this remedy
 19
is not available through the administrative process. It is precisely the remedy

provided under 21 U.S.C. § 801 et seq. Plaintiffs are therefore not currently

entitled to bypass exhaustion under this second exception either.

Finally, exhaustion may be unnecessary where pursuing agency review

would subject plaintiffs to undue prejudice. McCarthy, 503 U.S. at 146‐47. In

particular, “an unreasonable or indefinite timeframe for administrative action”

may sufficiently prejudice plaintiffs to justify a federal court in taking a case

prior to the complete exhaustion of administrative remedies. Id. at 147. Not

every delay will be sufficiently severe to justify waiver, however. Although, in

most cases, “respondents would clearly prefer an immediate appeal . . . rather

than the often lengthy administrative review process,” a mere preference for

speedy resolution is not enough. Heckler v. Ringer, 466 U.S. 602, 619 (1984).

“[T]hreatened or impending irreparable injury flowing from delay incident to

following the prescribed [administrative] procedure” militates in favor of

waiving exhaustion, but only if there is a “strong showing . . . both [of] the

inadequacy of the prescribed procedure and of impending harm.” Aircraft &

Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 773‐74 (1947).
 20
Despite the apparently dire situation of some of the Plaintiffs, they do not

yet meet the requirement for this exception to the exhaustion requirement. In

point of fact, the existing classificatory scheme has not prevented Plaintiffs

Bortell, Cotte, or Belen from obtaining their allegedly life‐saving medication.

Nor have Plaintiffs otherwise explained how pursuing agency review would

subject them to an additional “irreparable injury flowing from delay incident” to

the administrative process itself. Id. at 773. Accordingly, despite their

concededly difficult position, Plaintiffs are not currently entitled to bypass

agency review.

United States v. Kiffer does not require that we waive exhaustion here at
the moment.

The exhaustion requirement under the CSA is, however, prudential, not

jurisdictional. It is not mandated by the statute. Rather, it is a judicially‐created

administrative rule, applied by courts in their discretion.

This explains why this Court has, on at least one previous occasion,

considered a challenge to the scheduling of marijuana under the CSA without

requiring exhaustion, in United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973). That

case is readily distinguishable, however, and its holding does not mean that

exhaustion should not be required in the current case at this time. The Kiffer
 21
Court began by observing that “timely and successful use of th[e] administrative

[process] would have obtained for [the] appellants [in that case] the very relief

they seek from us—a declaration either that mari[j]uana should not be subject to

the [CSA] or that it should be covered only in another schedule.” Id. at 351. The

Court began, then, with the assumption that exhaustion did apply. It waived the

normal requirement only because of two factors that do not obtain in the instant

case: first, because the “application of the . . . doctrine [of exhaustion] to criminal

cases is generally not favored,” id. at 352, and, second and more significantly,

because, at the time Kiffer was heard, the federal government had taken the

position that it did not have the power to re‐ or deschedule marijuana at all, as a

result of foreign treaty commitments, id. at 351. Under those circumstances,

where “there [wa]s some doubt whether appellants in fact [had] an

administrative remedy,” the Court declined to require exhaustion. Id. The

instant case is different. It is, of course, civil. And, as the D.C. Circuit has since

held, foreign treaty commitments have not divested the Attorney General of the

power to re‐ or deschedule marijuana. See Nat’l Org. for Reform of Marijuana Law

(NORML) v. Drug Enforcement Admin., 559 F.2d 735 (D.C. Cir. 1977). Kiffer’s

result is therefore not controlling. In fact, the case’s logic reinforces our
 22
conclusion that Plaintiffs should attempt to exhaust their administrative

remedies before seeking relief from us. But Kiffer also makes clear that, when

appropriate, we do have the power to act even if the administrative agency has

not.

Strong interests compel this Court to retain jurisdiction.

This case reaches us as an appeal from a ruling on a motion to dismiss.

Under settled principles of adjudication, we must, therefore, accept the well‐

pleaded facts in the complaint as true. Taking the facts as alleged, and,

accordingly, taking the supposed benefits some Plaintiffs have experienced from

marijuana as true as well, we—like the District Court below—are struck by the

transformative effects this drug has assertedly had on some Plaintiffs’ lives. As a

result, we are troubled by the uncertainty under which Plaintiffs must currently

live. Plaintiffs claim that marijuana has extended their lives, cured seizures, and

made pain manageable. If true, these are no small things. Plaintiffs should not

be required to live indefinitely with uncertainty about their access to allegedly

life‐saving medication or live in fear that pursuing such medical treatment may

subject them or their loved ones to devastating consequences.
 23
Plaintiffs argue that the administrative process will prolong their ordeal

intolerably. And their argument is not without force. Plaintiffs document that

the average delay in deciding petitions to reclassify drugs under the CSA is

approximately nine years. Such long delays cast doubt on the appropriateness of

requiring exhaustion. Accord Gibson v. Berryhill, 411 U.S. 564, 575 n.14 (1973).

And where, as here, health is involved, delay can be even more problematic. See

Abbey v. Sullivan, 978 F.2d 37, 46 (2d Cir. 1992) (observing that, “if the delay

attending exhaustion would subject claimants to deteriorating health . . . then

waiver [of exhaustion] may be appropriate”).

Indeed, on the alleged facts, which, we repeat, we must for now take as

true, undue delay by the agency might make applicable each of the three

exceptions to exhaustion that the Supreme Court has recognized and which we

discussed earlier. Specifically, undue delay, if it in fact results in catastrophic

health consequences, could make exhaustion futile. Moreover, the relief the

agency might provide could, because of undue delay, become inadequate. And

finally, and obviously, Plaintiffs could be unduly prejudiced by such delay.

To be clear, Plaintiffs have not alleged that they will necessarily suffer

sufficient harm as a result of the time it would take to pursue the administrative
 24
process to justify an exception to exhaustion now. Plaintiffs do, however,

plausibly raise the specter of delay and plausibly suggest that the delay could

become problematic. And although agencies, like legislatures, are often the best

decisionmakers, this is so only when they actually do decide.

Courts have, moreover, on occasion deemed it proper to encourage

prompt decisionmaking. Thus, where agencies have a history of dilatory

proceedings, federal courts have sometimes retained jurisdiction of related cases

to facilitate swift review. In Telecommunications Research and Action Center v.

F.C.C., 750 F.2d 70 (D.C. Cir. 1984), our sister circuit retained jurisdiction of a case

in part because of the failure of a federal agency to act with adequate speed. See

750 F.2d at 80‐81. “Whether or not the[] [agency’s] delays would justify

mandamus,” the court stated, they were significant enough that it should retain

jurisdiction to promote a quick resolution. Id. at 81; see also, e.g., In re Pesticide

Action Network N. Am., 532 F. Appʹx 649, 652 (9th Cir. 2013) (summary order)

(observing that “it is well established that we may retain jurisdiction over [a case]
 25
to ensure that [the agency] acts expediently”); cf. Then, 56 F.3d at 468‐69 (2d Cir.

1995) (Calabresi, J., concurring).4

We think it possible that future action by us may become appropriate here.

Plaintiffs have not asked for—and we do not even consider issuing—a writ of

mandamus to force the DEA to act. But we exercise our discretion to keep

jurisdiction of the case in this panel, to take whatever action may become

appropriate if Plaintiffs seek administrative review and the DEA fails to act

promptly. And we note that, under the unusual health‐related circumstances of

this case, what has counted as appropriate speed in the past may not count as

appropriate speed here.

In doing this, we specify that we are not retaining jurisdiction to review

the actions the agency may take. Jurisdiction over those may well lie solely in

another circuit. Nor do we intend to retain jurisdiction indefinitely. Unless the

Plaintiffs seek agency review and so inform us within six months, we will affirm

the District Court’s judgment dismissing this case. (And if only some Plaintiffs

4Some courts in other jurisdictions have gone even further in asserting a role for courts
to ensure prompt action by lawmakers. See Vincent v. Pabst Brewing Co., 177 N.W.2d
513, 517 (Wis. 1970); Corte Cost., 24 ottobre 2018, n. 207 (It.); see generally Guido
Calabresi, A Common Law for the Age of Statutes (1982), especially id. at 35‐37. We wish to
make clear that we make no such assertion of power in the federal courts generally.
 26
seek agency review, we will dismiss the complaint as to those who do not.) But

if Plaintiffs do seek agency review, and the agency fails to act with alacrity,

Plaintiffs may return directly to us, under our retained jurisdiction.5

To be clear, we repeat that this case remains in our purview only to the

extent that the agency does not respond to Plaintiffs with adequate, if deliberate,

speed. In other words, we retain jurisdiction exclusively for the purpose of

inducing the agency to act promptly.

CONCLUSION

Because Plaintiffs failed to exhaust their administrative remedies and do

not at this time qualify for an exception to the exhaustion doctrine, the District

Court did not err in requiring Plaintiffs to bring their claims to the relevant

agency first. But, in light of the unusual circumstances of this case, we hold the

case in abeyance and retain jurisdiction in this panel to take whatever further

5Because Plaintiffs’ allegations with respect to the catastrophic harm they are facing are
not implausible, we must take them as true at this stage of the litigation. Should the
agency fail to act, we would, before proceeding further, however, have to look into the
allegations more deeply. Accordingly, should the case return to us, it may be
appropriate to remand to the District Court for further factfinding. At that time, if
Plaintiffs have not at least raised a disputed issue of material fact as to the veracity of
their allegations, summary judgment against them would be appropriate.
 27
action might become appropriate should Plaintiffs initiate administrative review

and the administrative process fail to operate with adequate dispatch.
DENNIS JACOBS, Circuit Judge, dissenting:

The plaintiffs seek a declaration that the classification of marijuana as a
Schedule 1 substance is unconstitutional because it does not reflect contemporary
learning regarding the drug’s medicinal uses. I agree with the District Court that
this case must be dismissed for failure to exhaust administrative remedies in the
Drug Enforcement Agency (“DEA”). The majority opinion does not actually
disagree, though it seems to treat lack of jurisdiction as a prudential speed bump.
I dissent from the majority opinion’s decision to hold the case in abeyance so that
we may turn back to it if, at some future time, we get jurisdiction.

The majority posits that jurisdiction may materialize if the plaintiffs,
claiming emergency, do not obtain a prompt decision on their not‐yet filed
petition to the DEA‐‐but this seems to be no all‐fired emergency, given that the
plaintiffs are afforded half a year to file a petition on which hang supposed
“serious, life‐or‐death” consequences. Majority Op. 3. For the following reasons,
the plaintiffs’ claims of emergency are tenuous, and constitute a further argument
against retaining jurisdiction that we do not have in order to hurry along an
administrative decision on a petition that has not been filed.

 Plaintiffs Dean Bortell and Sebastien Cotte sue on behalf of their severely
ill children, who rely on marijuana for treatment. Bortell and Cotte
concede that their children get all the treatment they need, including
marijuana, and dwell in states that do not outlaw it or that do not enforce
any vestigial prohibition; their grounds for claiming urgency are that their
children are unable to take that medicine with them if they travel onto
federal lands or into states where marijuana is illegal. The parents add
that they suffer fear they might be subject to federal prosecution because
they are involved in their children’s medical treatment. I view these
claims as contrived and fanciful. Nobody need fear severe consequences
for administering medical marijuana to sick children.

 Jose Belen is a veteran with post‐traumatic stress disorder who
successfully uses marijuana to manage his symptoms, but complains that
his travel is restricted and that he cannot take full advantage of his
veterans benefits (presumably for the government to pay for the
marijuana).
  Plaintiff Marvin Washington asserts that he is impeded from seeking
federal aid to expand his business so that he can sell cannabis products.
No emergency here, and likely no standing either.

 Finally, the Cannabis Cultural Association assists people of color who wish
to participate in the cannabis industry but who cannot because they
jumped the gun, and have been arrested or convicted for cannabis use. I
cannot see that this Association has standing to challenge the classification
of marijuana under the nation’s drug laws, let alone to seek an emergency
resolution of that issue.

* * *

As to the Judgment below, which dismissed the claims for failure to
exhaust administrative remedies, I agree with the District Court‐‐and with the
majority opinion, which agrees that exhaustion is required (at least for now).

I part company with the majority opinion insofar as it holds the case in
abeyance with the expectation of taking some measures if the DEA fails to act
with “adequate dispatch.” Majority Op. 27. Our failure to dismiss the case now
is error for several reasons that are easily stated.

First, it is common ground that the case was properly dismissed under
12(b)(1) for failure to exhaust remedies; so neither this Court nor the District
Court has jurisdiction to grant a remedy. And we cannot simply decide to wait
for jurisdiction that (as we are properly ruling) we do not have. Our job as a
circuit court is to issue mandates. We do not fulfill the requirements of the job by
holding a case in abeyance on the off chance that we may get jurisdiction to
decide it in the future.

Second, the terms of the hold on this case are without content: we may
take “whatever further action” if the agency fails to act “promptly” or “with
adequate dispatch” or “[with] appropriate speed” or “with alacrity”. Majority
Op. 25‐27. This is of no help‐‐the DEA is unlikely to discern what “adequate

2
dispatch” or “appropriate speed” may mean for an issue that (as the majority
opinion observes) “stretch[es] back decades”.1 Majority Op. 2.

* * *

Given all this, it would be surprising if solid precedent supported this
procedural invention. The majority opinion adduces none. The majority thinks
that United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973), “makes clear that, when
appropriate, we do have the power to act even if the administrative agency has
not.” Majority Op. 22. But in that case, the Court excused administrative
exhaustion only because the defendant had shown that exhaustion would be
futile and unduly prejudicial. Id. at 351‐352 (“[I]t appears now that the
administrative route for [the defendants] would at best provide an uncertain and
indefinitely delayed remedy . . . [and impose on them a] severe burden.”).
Accordingly, Kiffer stands only for the uncontroversial proposition that
exhaustion may be excused where it would be futile or unduly prejudicial; it
does not condone waiting around until an exception is met. The majority
opinion (correctly) concludes that the plaintiffs do not meet the requirements for
either exception. The relevance of Kiffer ends there.

The majority opinion relies on Telecommunications Research & Action
Center v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) (“TRAC v. F.C.C.”); but that Court
decided a mandamus petition (none is before us here). Moreover, the court did
not hold the case in abeyance, but retained jurisdiction (that it already had) only
to ensure that the agency fulfilled its sua sponte promise to address the issue
expeditiously. And the court gave the agency specific direction. Id. at 80‐81
(directing the agency to advise the Court of its progress every 60 days).

1 The majority opinion also limits its “purview” to a failure of the agency
to act with “adequate, if deliberate, speed.” Majority Op. 26. The echo of that
phrase from Brown v. Board of Education II is unfortunate, however, given that,
in the many decades since, school integration is an unfinished project. The
phrase seems to be derived from Admiralty law in the days of sail, which
likewise offers no useful context. And in Francis Thompson’s ʺHound of
Heaven,ʺ “deliberate speed” is the pace by which God pursues us. No help there
either.

3
 The majority opinion’s “e.g.” cite to a single Ninth Circuit summary order
does not bespeak a wealth of examples. In that case as well, the court considered
a mandamus petition. It decided that a writ of mandamus was not warranted,
and declined to retain jurisdiction, citing only TRAC v. F.C.C. for the proposition
that it could have retained jurisdiction if it wanted to. In re Pesticide Action
Network N. Am., 532 F. App’x 649, 652 (9th Cir. 2013). (The parenthetical quote
from Pesticide classifies itself as “well‐established”‐‐often a tell that the point is a
novation.) The majority’s remaining authority, a concurring opinion by Judge
Calabresi, advances the speculative idea that courts may prod government when
laws outlive the views of the bien pensant community. None of these cases
supports the idea that a court is permitted to hold a case in abeyance because the
court may on contingency gain jurisdiction to hear it, and can bully the agency in
the meantime. As near as I can make it out, the holding of the majority opinion
is: a court without jurisdiction should proceed with caution.

* * *

I doubt that the DEA will be hurrying its work on an application that these
plaintiffs have not yet filed, seeking administrative action on an old and ramified
controversy. Unless the panel opinion precipitates a swift administrative
rejection, there is no reason to anticipate a swift ruling that entails the assessment
of countervailing risks, the pendency of legislation, and the eliciting of opinions
on issues of medicine and public health. So I fully expect to see further
proceedings in this appeal. No one can tell what this panel could do then, or
(more accurately) would do. In the meantime, the one thing that will not happen
is the issuance of the mandate, since I presume the majority will not thus oust
this panel and this Court of the ability to take “whatever further action” may be
necessary. Majority Op. 26. As and when this case returns to this Court and this
panel, I will be an interested and bemused spectator.

4