Washington v. Barr
925 F.3d 109
2d Cir.2019Background
- Plaintiffs: several individuals (including children and a veteran who claim life‑saving medical benefits from cannabis) and a membership org (Cannabis Cultural Association) challenge marijuana’s classification as Schedule I under the Controlled Substances Act (CSA).
- Plaintiffs seek declaratory and injunctive relief to reschedule/deschedule marijuana and allege harms from Schedule I status (travel restrictions on federal lands, fear of prosecution, business and veterans‑benefit impacts).
- Defendants: United States, Attorney General, DOJ, DEA (agency with statutory authority to schedule/reschedule under 21 U.S.C. § 811).
- District Court dismissed under Fed. R. Civ. P. 12(b)(1) and (6) for failure to exhaust administrative remedies; denial of leave to amend. Plaintiffs appealed.
- Second Circuit panel affirmed that exhaustion is appropriate (prudentially required under the CSA’s text and structure) but did not reach the merits; it held the ordinary exhaustion exceptions inapplicable at present.
- Because some plaintiffs plausibly alleged imminent, serious health consequences and because of the DEA’s historical delays, the panel held the case in abeyance and retained jurisdiction for six months to permit plaintiffs to seek agency review and to enable the court to act if the DEA fails to act with adequate dispatch.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs may sue in federal court without first pursuing DEA administrative rescheduling | Exhaustion not required; courts can decide constitutional and arbitrary/classification questions now | CSA contemplates administrative process; plaintiffs must exhaust before judicial review | Exhaustion is prudentially required here; plaintiffs must pursue DEA process first |
| Whether any exhaustion exception applies (futility, inadequacy of remedy, undue prejudice/delay) | Exception applies because agency is biased, remedies will be inadequate, or delay will cause irreparable harm | No plausible bias in relevant decisionmaker (HHS Secretary); administrative remedy is the very remedy sought; alleged harm does not yet show undue prejudice | No exception applies now; plaintiffs have not shown futility, inability to obtain relief via agency, or sufficient irreparable injury from delay at this stage |
| Effect of precedent United States v. Kiffer on exhaustion requirement | Kiffer allowed judicial review without exhaustion in prior cannabis context | Kiffer is distinguishable (criminal context, government previously claimed no administrative remedy exists) | Kiffer is not controlling; does not compel waiving exhaustion here |
| Whether court may retain jurisdiction to ensure agency acts promptly given agency delay and health-related stakes | Plaintiffs need prompt relief; agency delays can be severe and prejudicial | Courts ordinarily lack jurisdiction until exhaustion; mandamus not sought | Court may retain the appeal in abeyance and keep jurisdiction limitedly for six months to allow plaintiffs to seek agency review and to enable the court to act if DEA fails to respond with adequate dispatch (no merits determination made) |
Key Cases Cited
- Woodford v. Ngo, 548 U.S. 81 (exhaustion doctrine; no judicial relief until administrative remedies exhausted)
- McCarthy v. Madigan, 503 U.S. 140 (exhaustion can be imposed as prudential rule when consistent with congressional intent)
- Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496 (legislative purpose governs whether courts should require exhaustion)
- Gonzales v. Raich, 545 U.S. 1 (background on CSA and federal authority over scheduled substances)
- United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973) (contextual precedent excusing exhaustion in limited, distinguishable circumstances)
- Telecommunications Research & Action Ctr. v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) (retaining jurisdiction to promote prompt agency action in the face of significant delays)