HEMP INDUSTRIES ASSOCIATION, et al., Plaintiffs, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, et al., Defendants.
Civil Action No. 20-2921 (JEB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
May 3, 2021
JAMES E. BOASBERG, United States District Judge
While the debate over marijuana legalization and enforcement consumes officials both in Washington and in various state capitals, this case focuses on its cousin: hemp. It principally involves a Drug Enforcement Administration rule issued in response to a recent round of statutory amendments to the Controlled Substances Act,
Interesting as this question may be, the Court ultimately concludes that it is powerless to entertain the merits of Plaintiffs’ entreaty. Congress has provided an exclusive pathway for
I. Background
The Court begins with an overview of the relevant statutory and regulatory background, then offers a brief survey of the hemp-production process at the core of this suit, and concludes with a procedural history.
A. Legal Background
Passed in 1970 and enforced by DEA, the CSA creates a comprehensive regulatory regime that criminalizes the unauthorized manufacture, distribution, and dispensation of controlled substances. See
The term “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
Invoking those rulemaking powers, DEA on August 21, 2020, published an interim final rule intended to “conform[] [its] regulations” to the AIA’s statutory amendments. See
Finally, the CSA provides for original jurisdiction in the courts of appeals over “[a]ll final determinations, findings, and conclusions” made by DEA under the statute. See
B. Factual Background
These statutory and regulatory developments occurred amidst an American hemp economy witnessing rapid and substantial growth. As of 2019, nearly 512,000 acres of land were licensed for hemp cultivation in the United States, and one survey the year after found more than 5,400 state-licensed hemp processors — both significant increases from years prior. See
Among the ingredients for each of these products are extracts derived from hemp plants. Id., ¶ 29. In their final form, the extracts contain less than 0.3% delta-9 THC and are therefore not psychoactive or subject to the CSA. Id., ¶¶ 15, 29. The problem here for Plaintiffs lies in the hemp-extract production process. As a high-level understanding of that process is necessary to grasp the substantive issues underlying this action, the Court — with useful assistance from Plaintiffs — will briefly outline its key stages.
The journey begins with the cultivation and harvest of hemp plants, which are soon transferred to third-party processors for “milling” and “extraction.” Id., ¶¶ 32–34. Deploying a series of complex procedures, the processors separate the hemp flower from the remainder of the plant, extract cannabinoids from raw flower material (the remains of which are then discarded), and evaporate the resulting oil in order to remove extraneous solvents, fats, and lipids. Id., ¶¶ 33–35. Evaporation generates two outputs of particular relevance here: intermediate hemp material and waste hemp material. Both substances “naturally (and unavoidably) exceed” 0.3% delta-9 THC concentration, as prior steps in the production process have stripped away the low-THC and THC-free parts of the hemp plant. Id., ¶¶ 35–37; see also id., ¶¶ 35–36 (explaining that IHM and WHM “contain[] concentrated levels of cannabinoids”). According to Plaintiffs, however, neither IHM nor WHM is added to or otherwise used as an ingredient in any consumer product. Id., ¶¶ 35–36. IHM, rather, is further refined into extracts or isolates containing less than 0.3% delta-9 THC, which are in turn used as ingredients in such consumer products. Id., ¶¶ 35, 38. Plaintiffs do not discuss what processors or businesses do with WHM.
C. Procedural History
Plaintiffs here are the Hemp Industries Association and RE Botanicals, Inc. HIA, which represents the interests of American hemp companies and consumers, has more than a thousand business, farming, and individual members, roughly 300 of whom manufacture, process, or store IHM and WHM. Id., ¶ 11. RE Botanicals, meanwhile, is a private corporation that produces and markets hemp products (and thus handles the same two substances). Id., ¶ 12.
These two Plaintiffs first filed suit not in this district court, but rather upstairs in the D.C. Circuit. Displeased with DEA’s August 2020 IFR — which, as previously noted, states that “a cannabis derivative, extract, or product that exceeds the 0.3% [delta-9]-THC limit is a schedule I controlled substance,” even if the product is “derived from a [below-threshold] hemp plant,”
Plaintiffs, as it turned out, were just getting started: less than a month later, they commenced a distinct action in this Court against DEA and its Acting Administrator. See ECF
Additional proceedings in this Court ensued. Prior to any response from the Government, Plaintiffs filed a self-styled Emergency Motion for Expedited Discovery seeking an order compelling DEA to answer two interrogatories aimed at ascertaining whether IHM and WHM were controlled substances under the CSA. See ECF No. 21 (Pl. Disc. Mot.) at 8. The Court denied that invitation, noting that “as best [it] can tell, no court has ever ordered this kind of pre-Answer discovery against a federal agency.” ECF No. 24 (Disc. Op.) at 2. In doing so, the Court expressed its “present doubts” as to whether it even had subject-matter jurisdiction over the lawsuit in light of Section 877’s command that challenges to final DEA determinations be brought in the courts of appeals. Id. at 4–5. It nonetheless elected to “await Defendants’ fuller briefing” before tackling this jurisdictional issue. Id. (cleaned up) (citations omitted).
Such briefing has now arrived. As anticipated, the Government soon filed a Motion to Dismiss for lack of subject-matter jurisdiction, see ECF No. 26, which Plaintiffs countered with an Amended Complaint. The revised pleading seeks relief similar (but not identical) to its
II. Legal Standard
Defendants’ Motion invokes the legal standard for dismissal under Rule 12(b)(1). When a defendant brings a motion to dismiss under that Rule, the plaintiff must demonstrate that the court has subject-matter jurisdiction to hear his claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). “Because subject-matter jurisdiction focuses on the court’s power to hear the plaintiff’s claim,” the court has “an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). “Absent subject matter jurisdiction over a case, the court must dismiss it.” Bell v. U.S. Dep’t of Health & Human Servs., 67 F. Supp. 3d 320, 322 (D.D.C. 2014).
In policing its jurisdictional borders, the court must scrutinize the complaint, granting the plaintiff the benefit of all reasonable inferences that can be derived from the alleged facts. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The court need not rely “on the complaint standing alone,” however, but may also look to undisputed facts in the record or resolve disputed ones. See Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Nor need the court accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint or merely amount to legal conclusions. See
III. Analysis
The Court begins by explaining why
A. Exclusive-Review Provision
“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015) (quoting Bowles v. Russell, 551 U.S. 205, 212 (2007)). “Litigants generally may seek review of agency action in district court under any applicable jurisdictional grant.” Id. Not so, however, when Congress has established a “special statutory review scheme.” Id. In such circumstances, courts assume that “Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies.” Id. (quoting City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)); accord Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984) (“[A] statute which vests jurisdiction in a particular court cuts off original jurisdiction in other courts in all cases covered by that statute.”).
The CSA contains such a statutory-review provision. It states, in relevant part:
All final determinations, findings, and conclusions of the Attorney General under this subchapter shall be final and conclusive decisions of the matters involved, except that any person aggrieved by a final decision of the Attorney General may obtain review of the decision in the United States Court of Appeals for the District of Columbia or for the circuit in which his principal place of business is located upon petition filed with the court and delivered to the Attorney General within thirty days after notice of the decision.
Before considering the import of Section 877 for the present case, the Court finds it useful to review a key D.C. Circuit precedent on the provision’s operation. In John Doe, Inc., a plaintiff dissatisfied with DEA’s denial of an importing permit brought suit in district court, arguing that the agency’s determination was contrary to law and seeking an injunction requiring it to approve the application. See 484 F.3d at 564; John Doe, Inc. v. Gonzalez, No. 06-966, 2006 WL 1805685, at *11 (D.D.C. June 29, 2006). The Circuit affirmed the district court’s dismissal for lack of subject-matter jurisdiction, holding that Section 877 assigned review of the plaintiff’s claims regarding DEA’s “final determination” exclusively to the court of appeals. See 484 F.3d at 568–70. As the district court explained, “[T]he CSA, pursuant to Section 877, provides one explicit avenue for judicial review — i.e., via petition to the applicable court of appeals — and nowhere does it contemplate that district courts should involve themselves in adjudicating CSA-based determinations by the DEA.” 2006 WL 1805685, at *20. While the court of appeals could
Although John Doe, Inc. does not squarely control this case, for the reasons that follow, the Court concludes that — much as in that precedent — Plaintiffs here are effectively challenging a “final determination[]” or “conclusion[]” made by DEA — specifically, its August 2020 IFR. See
As a preliminary matter, both parties appear to agree that the IFR — which, once again, became effective and binding on regulated parties upon its promulgation, see
The question, then, becomes whether Plaintiffs’ lawsuit challenges the IFR, such that review thereof may only be had in the court of appeals per the plain terms of the CSA’s exclusive-review provision. Three steps make clear that it does.
Begin with what the IFR says. As previously discussed, the IFR amends DEA’s regulatory definition of marijuana extract and tetrahydrocannabinols. See
Second, consider what Plaintiffs claim the IFR means. At its core, they believe that the rule establishes that “the CSA’s registration requirements do continue to apply to entities handling . . . IHM and WHM.” Am. Compl., ¶ 83. In other words, Plaintiffs maintain, DEA “publicized its view” in the IFR that IHM and WHM “are Schedule I substances,” thereby “assert[ing] its authority to impose criminal and/or civil liability against unregistered hemp processors who manufacture and/or process IHM and WHM.” Id., ¶ 3. The IFR thus both “constitute[s] DEA’s most direct claim that IHM and WHM are illegal,” id., ¶ 84, and “confirms [the agency’s] intent to regulate hemp production.” Id., ¶ 83; see also id., ¶¶ 100–01 (quoting IFR as evidence of DEA’s position that IHM and WHM are not exempt from Schedule I); Pl. Disc. Mot. at 5 (arguing that IFR “effectively reschedules hemp derivatives and extracts” and “criminalize[s]” an “essential intermediate step in the production of hemp” products).
Finally — and this is the key point that closes the loop — the Court looks at Plaintiffs’ position in this lawsuit and the relief they seek. According to them, the DEA stance outlined above — i.e., its “asserti[on] [of] authority to regulate the hemp production process” — constitutes “an affront to Congress’s clear command that possession and manufacture of IHM and WHM be permitted.” Id., ¶ 90. Put differently, they argue that the very regulatory authority laid out in the IFR flouts the AIA. Id., ¶¶ 87, 99–101; see id., ¶ 83 (contending that IFR “confirms DEA’s intent to regulate hemp production in defiance of Congress’s express mandate in the [AIA]”). For relief, they seek a declaration that — contrary to the IFR — “the definition of ‘hemp’ as set forth in [the AIA] includes IHM and WHM,” or that the AIA “authorizes and/or immunizes the possession and manufacture of IHM and WHM” such that the substances need
It is clear that such relief would have a singular effect: nullifying the unlawful assertion of agency authority that Plaintiffs insist the IFR sets forth. Put simply, the Amended Complaint “specifically identifies the IFR as embodying what [Plaintiffs] contend is an incorrect interpretation of the relevant statutes and an unlawful assertion [of] regulatory authority. They seek an injunction enjoining DEA from asserting that regulatory authority and a judicial declaration that their own, contrary interpretation is the correct one, and that they should be exempt from its application.” Def. Reply at 6–7. It is thus difficult to see how this lawsuit — which arrived less than two months after the IFR’s promulgation — is anything but a challenge to the IFR that falls within the “exclusive jurisdiction [of] the courts of appeals.” John Doe, Inc., 484 F.3d at 568 (citing
To be sure, and as they repeatedly state, Plaintiffs do not in these proceedings seek a declaration that the IFR itself is invalid or an injunction directly enjoining its application. They expressly sought the latter relief in their initial Complaint, see Compl., ¶ 114, a claim indistinguishable from the direct assault on the permit denial in John Doe, Inc. that the D.C. Circuit determined could only proceed in the court of appeals. See 484 F.3d at 570. But the fact that Plaintiffs’ amended pleading attacks the very position that they claim DEA adopted in the IFR without explicitly seeking to invalidate or reverse the IFR itself by name does not make this suit any less of a challenge to the IFR or any less of an attempt to “obtain review of” the assertion of regulatory authority contained therein. See
Ample authority reinforces this commonsense result. For instance, in FCC v. ITT World Communications, Inc., 466 U.S. 463 (1984), the Supreme Court held that a district court lacked jurisdiction to consider a claim raising the same substantive issues that were at stake in a final agency decision, review of which a statutory provision committed to the exclusive jurisdiction of the court of appeals. The procedural posture was relatively straightforward. First, the FCC denied the plaintiff’s petition for rulemaking to curtail the agency’s negotiations with foreign governments. Id. at 465. Having appealed that denial to the D.C. Circuit, the plaintiff simultaneously filed a lawsuit in the district court seeking to enjoin the agency from conducting the very same foreign negotiations. Id. at 466, 468. The Supreme Court determined that the district court lacked jurisdiction over such claim, remarking that “[l]itigants may not evade [exclusive-review] provisions by requesting the District Court to enjoin action that is the outcome of the agency’s order.” Id. at 468–69. The plaintiff could not file a complaint in the district court raising, “[i]n substance,” the “same issues” and attempting “to enforce the same restrictions upon agency conduct as did the petition for rulemaking,” review of which was only proper in the court of appeals. Id.; see also Sandwich Isles Commc’ns, Inc. v. Nat’l Exch. Carrier Ass’n, 799 F. Supp. 2d 44, 49–50 (D.D.C. 2011) (similarly determining that court lacked jurisdiction to hear claim where plaintiffs “in essence . . . are seeking review of an FCC order” — notwithstanding their insistence that the “case does not amount to an effort to obtain judicial
So too here: Plaintiffs may not “evade” Section 877 by filing a district-court action that, “[i]n substance,” seeks review of the “same issues” that the IFR purportedly addresses, and that further seeks — much like their (presently pending) petition for review in the court of appeals — “to require [DEA] to conduct future [action] on the terms that [Plaintiffs] propose[].” ITT World, 466 U.S. at 468 & n.5; see also Daniels v. Union Pac. R.R. Co., 530 F.3d 936, 942–43 (D.C. Cir. 2008) (holding that district court lacked subject-matter jurisdiction over claim that, in substance but not in name, challenged agency’s interpretation of its regulations, thus rejecting attempt to “circumvent[] review of the [agency’s] regulations in” court of appeals (as required by statute) “by instead indirectly . . . seeking review of the regulations in district court”); Bright v. Lehman, 725 F.2d 788, 790 (D.C. Cir. 1984) (“We will not allow [plaintiff] to circumvent the appeals procedure defined by Congress simply by casting a [different] label on his claim.”); Durso v. Napolitano, 795 F. Supp. 2d 63, 69–71 (D.D.C. 2011) (concluding that district court lacked subject-matter jurisdiction over claim “inescapably intertwined” with review of final order subject to jurisdiction of court of appeals, even if claim did not “direct[ly]” challenge such order, and noting that plaintiffs may not “avoid[] special review statutes through creative pleading”); cf. John Doe, Inc., 2006 WL 1805685, at *21 (“[C]ourts have traditionally refused to allow litigants to circumvent clear statutory directives requiring direct petition to the courts of appeals.”).
Consider for a moment the result if the opposite were true. Litigants could routinely skirt Section 877’s command that review of DEA’s final decisions and determinations under the CSA be entrusted to the court of appeals simply by challenging the substance of such decisions and
That state of affairs would make a mockery of congressional intent vis-à-vis Section 877. Yet, it is not meaningfully different from what Plaintiffs do here: in essence, ask the Court to endorse their own desired statutory interpretation — which just so happens to be the complete opposite of the position they claim DEA adopted in a promulgated rule — and to enjoin the agency from acting any differently. See Pl. Opp. at 13 (arguing that AIA “displaces . . . DEA from regulating matters which ‘relate to the production of hemp,’ including the production of IHM and WHM”) (quoting
It matters not, accordingly, that Plaintiffs seek technically different “relief” in this Court — i.e., a declaration and an injunction — than they “could obtain” upon a challenge to the IFR “in the D.C. Circuit.” Pl. Opp. at 17; cf. Durso, 795 F. Supp. 2d at 70–72 (explaining that plaintiffs could not bypass exclusive-review statute simply by seeking form of relief in district
District courts in analogous circumstances have refused to bite on comparable bait offered by similar plaintiffs, dismissing for lack of subject-matter jurisdiction claims that, in substance, sought review of a DEA determination committed to the exclusive jurisdiction of the court of appeals. Those dismissals occurred regardless of the technical nature of the relief requested. See, e.g., Olsen v. Holder, 610 F. Supp. 2d 985, 993–95 (S.D. Iowa 2009) (dismissing claim seeking declaration that DEA improperly classified marijuana as Schedule I controlled substance, and concluding that “the present lawsuit amounts to nothing more than an attempt to circumvent the clear Congressional intent to have scheduling determinations . . . subject to review only by the Courts of Appeals”); Nation v. Trump, 395 F. Supp. 3d 1271, 1276–78 (N.D. Cal. 2019), aff‘d, 818 F. App’x 678 (9th Cir. 2020) (dismissing claims that “relie[d] on the
At bottom, the Court does not believe that Section 877 — to say nothing of the comparable statutory provisions providing for direct review of decisions made by other agencies under different legislation — can be so easily evaded. Nor will it endorse a mechanism that, upon replication by other savvy plaintiffs, could defeat the purpose of Congress’s exclusive-review provision. See Def. Reply at 8 (“[Section] 877 would be a dead letter if a plaintiff could simply seek a declaration that DEA erred rather than challenging the supposed error itself.”); John Doe, Inc., 2006 WL 1805685, at *21 (declining to adopt plaintiff’s argument that “would support a loophole around [sic] the common Section 877 jurisdiction held by the courts of appeals”); cf. DCH Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 506, 508 (D.C. Cir. 2019) (rejecting jurisdictional argument that would enable plaintiffs to avoid statutory bar on judicial review simply by “recasting” their claims). That is especially so when the inevitable consequence of such a regime would be the precise ills the D.C. Circuit warned that courts should construe Section 877 to avoid — to wit, “forum shopping” and “duplicative and potentially conflicting review.” John Doe, Inc., 484 F.3d at 570 (citation omitted) (warning against adopting “narrow interpretation of § 877”); cf. Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 551 (D.C. Cir. 1992) (rejecting plaintiff’s argument for jurisdiction where it “would invite an endless stream of suits filed in district courts . . . by parties seeking to stall or foreclose agency action”); City of Rochester, 603 F.2d at 936 (observing that “[t]he rationale for statutory review is that coherence and economy are best served if all suits pertaining to designated agency decisions are segregated in particular courts” and raising concerns regarding potential “duplication and inconsistency”).
Briefly: their Amended Complaint insists that the IFR confirms that “the CSA’s registration requirements do continue to apply to entities handling . . . IHM and WHM.” Am. Compl., ¶ 83. They likewise argue that the IFR “effectively reschedules hemp derivatives and extracts” and “criminalize[s]” an “essential intermediate step in the production of hemp” products. See Pl. Disc. Mot. at 5; see also supra at 13 (recounting other statements). Similarly telling are a pair of letters from federal lawmakers quoted in the Amended Complaint. See Am. Compl., ¶¶ 88–89. One, from two Senators, asserts that “the IFR criminalizes the intermediate steps of hemp processing,” thereby “rewrit[ing] the [AIA]” and “do[ing] significantly more” than “merely implement[ing] the [statute].” ECF No. 33-2 (Declaration of David Kramer), Exh. F (Wyden & Merkley Ltr.) at 1. The other, from nine Representatives, recites the IFR’s text and states that it “seems to have ignored the clear legislative intent of the [AIA] in making the processing of hemp into extracts, derivatives, and cannabinoids subject to DEA enforcement as a violation of the [CSA].” Id., Exh. N (House Ltr.) at 1. No matter what the Government says about the IFR, then, Plaintiffs’ own materials belie their Opposition’s latest attempt to cast this lawsuit as anything other than a collateral attack on the substance of a DEA decision.
Take Monson v. DEA, 589 F.3d 952 (8th Cir. 2009), the case to which Plaintiffs devote the most attention. See Pl. Opp. at 27–31. There, the Eighth Circuit held that Section 877 did not strip the district court of jurisdiction over a claim seeking a declaration that industrial hemp cultivated under state licenses was not “marijuana” under the meaning of the CSA. Id. at 955–56, 960. Of critical importance to that jurisdictional ruling, however, was the fact that “there was no final decision of the DEA under the CSA at issue.” Id. at 960; see also id. at 961 (reiterating that “[t]here was no final decision of the DEA to be reviewed”); id. at 960 (citing district-court cases that involved no “final decision under the CSA”). As the court explained, “Explicit in [Section 877’s] grant of jurisdiction to the court of appeals is the requirement that the DEA issue a ‘final decision’ under the Act.” Id. at 960. Because the plaintiffs’ lawsuit did not “challenge” any such decision, jurisdiction in the district court was proper. Id. The court even distinguished John Doe, Inc. on this very basis. See id. at 961 (“Unlike the applicant in John Doe, Inc., . . . [plaintiffs] did not file their complaint in the District Court seeking review of a final action by the DEA under the CSA.”).
Monson, accordingly, is silent on what happens in a case like this one, where Plaintiffs seek a judicial pronouncement as to the validity of a substantive position adopted by DEA in a rule qualifying as a “final decision” under the CSA. See
Plaintiffs’ other citations founder for the same reason: none involved a DEA final decision on the precise substantive matter pressed by the litigants. See, e.g., Novelty Distributors, Inc. v. Leonhart, 562 F. Supp. 2d 20, 26 (D.D.C. 2008) (exercising jurisdiction where both parties agreed that the relevant agency action was not a “‘final determination, finding, or conclusion’ under the CSA”) (cleaned up) (quoting
* * *
It is important to clarify what this decision does not mean. The Court does not conclude that “any challenge, without qualification,” touching on “any issue related to DEA” comes within the scope of Section 877 such that a district court may not entertain it. See Pl. Opp. at 19 (internal quotation marks omitted). Nor does it find that Section 877 “necessarily vests exclusive jurisdiction [in the] courts of appeals over any and all enforcement actions” under the CSA. Id. at 21. Its holding, rather, is far more modest — namely, that when the substance of a lawsuit challenges an assertion of agency authority set forth in a DEA rule committed to the exclusive review of the court of appeals by statute, such lawsuit falls within the ambit of that exclusive-review provision. In the precise circumstance of the present case, permitting Plaintiffs to proceed in this district court would endorse an impermissible end run around Section 877.
That narrow disposition resolves this case. The Court, accordingly, has no occasion to reach any of the Government’s alternative arguments for why subject-matter jurisdiction is wanting here, including its contentions that Plaintiffs lack standing and that their claims are not ripe. Nor does it offer any opinion on the underlying merits of Plaintiffs’ claims regarding IHM and WHM.
B. Leedom Jurisdiction
Plaintiffs have one final arrow in their quiver. They claim that, even if the Court lacks statutory jurisdiction over their case, it may nonetheless exercise jurisdiction under the doctrine of Leedom v. Kyne, 358 U.S. 184 (1958). See Am. Compl., ¶ 10; Pl. Opp. at 33–36. That doctrine — to the extent it remains viable today, see DCH Reg’l, 925 F.3d at 509 (suggesting
Plaintiffs, to their credit, appear to recognize the long odds of this jurisdictional bid. They concede that Leedom jurisdiction is “exceptional” and “highly disfavored,” Pl. Opp. at 33–34, and they acknowledge the D.C. Circuit’s guidance that invocation of the “extremely narrow” doctrine is “extraordinary.” Id. (quoting Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006)). They nonetheless toss up this “Hail Mary pass,” Nyunt, 589 F.3d at 449, and urge the Court to retain jurisdiction under Leedom. Like most such last-second heaves, however, this one falls harmlessly to the turf.
To the extent its prior musings throughout this Opinion were belabored, the Court handles the present contretemps with dispatch. The Leedom doctrine applies only when three requirements are met: “(i) the statutory preclusion of review is implied rather than express; (ii) there is no alternative procedure for review of the statutory claim; and (iii) the agency plainly acts in excess of its delegated powers and contrary to a specific prohibition in the statute that is clear and mandatory.” DCH Reg’l, 925 F.3d at 509 (quoting Nyunt, 589 F.3d at 449) (cleaned up). Even under Plaintiffs’ theory of the case wherein they do not challenge the IFR — a framing the Court has already rejected — they plainly cannot make this showing.
As an initial matter, Plaintiffs may obtain review of the precise statutory claim they bring here via a petition for review in the court of appeals (either now or upon some future DEA final determination). See Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43–44 (1991); Ukiah, 981 F.2d at 550. Furthermore, they have not demonstrated that DEA committed an error “so extreme that one may view it as jurisdictional or nearly so,” as required
IV. Conclusion
For the aforementioned reasons, the Court will grant Defendants’ Motion to Dismiss for lack of subject-matter jurisdiction. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: May 3, 2021