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PEARSON v. MCCAFFREY

April 19, 2001

DURK PEARSON, SANDY SHAW, JULIAN WHITAKER, JEFFREY SINGER, RICHARD FISHER, AMERICAN PREVENTIVE MEDICAL ASSOCIATION, LIFE EXTENSION FOUNDATION, PLAINTIFFS,
v.
BARRY MCCAFFREY, AS DIRECTOR, OFFICE OF NATIONAL DRUG CONTROL POLICY; DONNA SHALALA, AS SECRETARY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; THOMAS CONSTANTINE, AS ADMINISTRATOR, UNITED STATES DRUG ENFORCEMENT ADMINISTRATION; AND JANET RENO, AS ATTORNEY GENERAL OF UNITED STATES, DEFENDANTS.



The opinion of the court was delivered by: Bryant, Senior District Judge.

  MEMORANDUM

Before the Court is Plaintiffs' Application for a Preliminary Injunction and Defendants' Motion to Dismiss. Plaintiffs have requested that the Court enjoin Defendants from initiating civil, criminal, or administrative proceedings against: 1) Plaintiff physicians who practice medicine in states with laws allowing for the prescription and use of medicinal marijuana and who seek to recommend and prescribe medicinal marijuana to certain of their seriously and terminally ill patients; 2) Plaintiff patients who seek to obtain and use prescribed medicinal marijuana; and 3) Plaintiff scientists who seek to consult with Plaintiff physicians and patients regarding non-combustion means by which to inhale medicinal marijuana. Plaintiffs assert that at press conferences held on October 28, 1996, and December 30, 1996, Defendants announced several ways that the federal government could take adverse action against physicians who prescribe marijuana and against patients who rely on such prescriptions in those states where such prescription is legal. Plaintiffs further assert that Defendants published that policy regarding such action ("the federal policy") in the Federal Register on February 11, 1997.

I. Background

Currently, in several states, physician prescription or recommendation of marijuana to terminally ill patients and terminally ill patients' use of marijuana is lawful.*fn1 On October 28, 1996, shortly before the passage of the medical marijuana propositions in California and Arizona, Defendant Barry McCaffrey ("Defendant McCaffrey") publicly stated that any physician recommending or prescribing marijuana would be prosecuted under federal law. On December 30, 1996, in a nationally broadcast press conference, Defendants McCaffrey, Donna Shalala, and Janet Reno announced the federal policy and described several ways that the federal government could take adverse action against physicians who prescribe marijuana and against patients who rely on prescriptions in states where such prescription is legal. On February 11, 1997, the Office of National Drug Control Policy (ONDCP) published the federal policy in the Federal Register.

Under the federal policy, the federal government may: 1) prosecute any physician who prescribes or recommends marijuana to patients; 2) prosecute any patient who uses prescribed marijuana; 3) revoke the DEA registration numbers of any physician who prescribes or recommends marijuana to patients; 4) exclude any physician who prescribes or recommends marijuana to patients from the Medicaid and Medicare programs; and 5) enforce all federal sanctions against physicians and patients.*fn2

II. The Parties' Requests for Relief

A. Plaintiffs' Application for Preliminary Injunction

In their Application for Preliminary Injunction, Plaintiffs assert that the federal policy is unconstitutional for several reasons. First, Plaintiffs state that the federal policy violates patient and physician First Amendment rights because the speech at issue (prescription, recommendation, and scientific consultation) is fully protected. Therefore, Plaintiffs argue, the federal policy is an unconstitutional prior restraint, an unconstitutional content-based suppression of protected speech, and is unconstitutionally overbroad.

Second, Plaintiffs argue that the federal policy violates the Tenth Amendment because it causes all states to be "effectively coerced and cajoled into aiding federal authorities in the apprehension and prosecution of those who violate the [federal] [p]olicy." Application Prelim. Inj. at 18.

Third, Plaintiffs assert that the federal policy violates the Ninth Amendment by violating the unenumerated rights of physicians to recommend and prescribe needed treatment to a seriously or terminally ill patient, as well as the rights of patients to receive such treatment.

Fourth, Plaintiffs argue that the federal policy violates the Commerce Clause. Plaintiffs assert that because neither intrastate recommendation and prescription of marijuana, nor the cultivation, growth, or use of medicinal marijuana substantially affects the channels or instrumentality of interstate commerce, it is beyond the power of Congress or administrative agencies to regulate such activity.

Fifth, Plaintiffs argue that the federal policy violates the Administrative Procedures Act (APA) because it imposes two rules of general applicability, thus final rules, without providing adequate notice and opportunity for public comment.

Finally, Plaintiffs argue that the federal policy exceeds ONDCP's statutory authority. The federal policy announces that physicians who prescribe or recommend marijuana under state law will have their DEA prescription drug licenses revoked and their participation in Medicare and Medicaid prohibited. Plaintiffs assert that neither the CSA nor the Social Security Act provide the Federal government with the authority to revoke licenses or participation in Medicare and Medicaid based upon a recommendation or prescription for medical marijuana in accordance with state law.

B. Defendants' Motion to Dismiss

In their Motion to Dismiss, Defendants assert several arguments. First, they state that Plaintiffs' claims are not appropriate for judicial resolution at this time because Plaintiffs lack standing and their claims are not ripe for judicial review. Defendants also note that none of the federal agency Defendants has taken any final agency action affecting the Plaintiffs. In addition, Defendants assert that the DEA has the authority to revoke a doctor's registration to dispense controlled substances for violations of the CSA.

Defendants also claim that the federal policy is fully consistent with the First Amendment, and does not violate the Ninth or Tenth Amendments. Moreover, because the federal policy is a "statement of agency policy," it is exempt from the notice and comment requirements for rulemaking under the APA. Finally, Defendants argue that Plaintiffs are not entitled to a preliminary injunction because they are not likely to succeed on the merits, and the balance of equitable factors weighs against enjoining enforcement of the CSA, a statute Congress enacted to protect the public health and safety.

III. Analysis

A. Standing

In their Motion to Dismiss, Defendants argue that Plaintiffs lack standing to bring this suit because federal law does not prohibit a physician from merely discussing the risks and benefits of medical marijuana use with a patient. In addition, Defendants note that the Department of Justice (DOJ) has not threatened to bring charges against doctors or scientists for engaging in discussions about medical marijuana. Thus, Defendants argue, in the absence of a "credible and immediate" threat of prosecution, Plaintiffs do not have standing to bring this case. Defs.' Mot. Dismiss at 8.

Plaintiffs challenging a statute or policy in federal court must demonstrate that they have or will sustain some immediate injury from the challenged statute or official conduct. See O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). However, "[b]ecause of the sensitive nature of constitutionally protected expression, [the Supreme Court has] not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser." Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Plaintiffs have noted that the federal policy, and thus, the CSA, has had a chilling effect — that doctors and researchers have been fearful of discussing the potential benefits of medical marijuana with their colleagues and patients. While these Plaintiffs have not been prosecuted by the government for such actions, their fear of potential sanctions is both credible and immediate. Therefore, this Court finds that there is enough at stake here to determine that Plaintiffs have standing to challenge the federal policy as it relates to enforcement of provisions of the CSA.

However, as noted above, part of the federal response involves the exclusion of physicians prescribing or recommending medicinal marijuana from participation in the Medicare and Medicaid programs. In the most recent Conant court decision, on ...


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