ORDER
On September 15, 2008, Plaintiff, Carl Olsen, filed an “Original Complaint for Declaratory and Injunctive Relief.” Clerk’s No. 1. Plaintiffs action asserts that the current scheduling of marijuana as a Schedule I controlled substance is unlawful under the Controlled Substances Act of 1970 (“CSA”). Specifically, Plaintiff contends that marijuana “no longer meets the statutory requirement for inclusion in Schedule I of the CSA” because several states have determined that marijuana has a legitimate medical use, in contradiction to the CSA’s requirement that a Schedule I drug have “no currently accepted medical use in treatment in the United States.” Pl.’s Compl. at 1; 21 U.S.C. § 812(b)(1)(B). Plaintiff seeks the following relief: 1) a declaratory ruling that the maintenance of *987 marijuana on Schedule I is unlawful; 2) an injunction against the Defendants 1 to prevent them from enforcing laws that treat marijuana as a Schedule I drug; and 3) an order requiring the Drug Enforcement Administration to either reschedule marijuana or to remove marijuana from the drug schedules entirely; and 4) an order requiring Defendants to initiate proceedings to remove restrictions on marijuana from international treaties.
Presently before the Court are the following motions: 1) Defendants’ Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim upon which Relief can be Granted (Clerk’s No. 6), filed November 17, 2008; 2 2) Plaintiffs Motion for Summary Judgment (Clerk’s No. 9), filed November 23, 2008; 3 3) Plaintiffs Motion for Preliminary Injunction (Clerk’s No. 10), filed November 24, 2008; 4 and 4) Plaintiffs Motion for Temporary Restraining Order (Clerk’s No. 25), filed January 14, 2009. 5 In addition to these matters, Plaintiff has filed several Motions for Judicial Notice Pursuant to Federal Rule of Evidence 201. Clerk’s Nos. 13, 19, 22, 28, 36. 6 As a preliminary matter, the Court grants Plaintiffs requests for judicial notice, as they merely contain supplementary case law and documentation that Plaintiff believes relevant to the case.
I. FACTUAL BACKGROUND
Plaintiff is a member and priest in the Ethiopian Zion Coptic Church, a recognized religion that employs marijuana as “an essential portion of [its] religious practice.” Compl. ¶¶ 23-27. Plaintiff has been party to numerous lawsuits seeking, in one form or another, recognition of what he contends is his religious right to use marijuana.
See State v. Olsen,
In the present case, Plaintiff has adopted a strategy somewhat different from that asserted in previous cases in his ongoing effort to decriminalize marijuana. Accordingly, a procedural summary of Plaintiffs activities in relation to the present matter is appropriate. In previous cases, Plaintiff has generally asserted that he has a First Amendment entitlement to use marijuana as part of the free exercise of his religion, or that an exception must be made to the marijuana laws to permit his religious use of it. Here, however, Plaintiff is not directly asserting either of these positions. 7 Rather, Plaintiff argues that: 1) a drug is only appropriately listed on Schedule I if it has “no currently accepted medical use in the United States”; 2) Congress gave the States the authority to determine what constitutes “accepted medical use” and the Supreme Court has reaffirmed the States’ right to make that determination; 3) twelve states have passed laws finding that marijuana has “accepted medical use[s]”; 4) because twelve states have concluded that marijuana has an “accepted medical use,” the listing of marijuana in Schedule I is invalid; and 5) federal enforcement of the CSA with regard to marijuana is, therefore, unlawful. Plaintiff additionally contends that, because marijuana is improperly and unlawfully classified as a Schedule I controlled substance, the Defendants must undertake proceedings to amend any international treaties that require marijuana to be listed in Schedule I.
In his effort to bring his arguments to fruition, Plaintiff filed a “Petition for Marijuana Rescheduling” with the Drug Enforcement Administration (“DEA”) on May 12, 2008. Clerk’s No. 1.5 (Ex. 12). Therein, Plaintiff asserted the same arguments as in the present case, namely that marijuana is improperly listed as a Schedule I controlled substance because twelve states have concluded that marijuana has an “accepted medical use,” contrary to the requirements listed in 21 U.S.C. § 812(b)(1) for inclusion of a substance in Schedule I. Id. The DEA sent Plaintiff a letter on June 25, 2008, stating that his Petition for Marijuana Rescheduling had been accepted for filing. Clerk’s No. 1.6 (Ex. 16). On August 5, 2008, Plaintiff sent the DEA a document entitled, “Notice and Deadline to Cease and Desist Illegal Enforcement of Fraudulant [sic] Marijuana Regulation.” Id. (Ex. 17). Therein, Plaintiff stated that the DEA’s “current scheduling of marijuana in Title 21 Code of Federal Regulations, Section 1308.11 Schedule I, is in violation of federal law, Title 21 United States Code, Section 903.” 8 Id. Plaintiff further *989 stated that failure by the DEA to cease and desist enforcement of the illegal marijuana regulation within 30 days would result “in a federal civil injunction being filed against the Drug Enforcement Administration” in federal court. Id. Having received no further response from the DEA, Plaintiff filed the present lawsuit on September 15, 2008. Clerk’s No. 1.
In November 2008, the Defendants filed their Motion to Dismiss. Defendants’ Motion first argued that Plaintiffs federal action must be dismissed on the basis that Plaintiff had not received a final determination from the DEA in regard to his Petition for Marijuana Rescheduling and that Plaintiff, therefore, had failed to exhaust his administrative remedies under the Administrative Procedures Act. See 5 U.S.C. § 704 (permitting judicial review of agency actions that are “made reviewable by statute [or] final agency action for which there is no other adequate remedy in a court”). Plaintiff filed a resistance to the Defendants’ Motion to Dismiss urging that he was not required to exhaust administrative remedies before filing the present lawsuit.
On December 19, 2008, the DEA issued a nine page letter (the “DEA Letter”) rejecting Plaintiffs Petition for Marijuana Rescheduling and declining to institute rulemaking proceedings for the purposes of rescheduling marijuana. See Clerk’s No. 22. In light of the DEA Letter, the Defendants filed a Reply to Plaintiffs Resistance to the Motion to Dismiss, conceding that, “[b]ecause Plaintiff has now exhausted his administrative remedies, that portion of Defendants’ motion to dismiss based on lack of administrative exhaustion is moot.” Defs.’ Reply at 2. While admitting that Plaintiff is now “entitled to federal court review of the administrative decision,” however, Defendants maintain that jurisdiction is still improper because “[r]e-view of administrative decisions under the CSA ... lies exclusively with the courts of appeal.” Id.
On January 16, 2009, one day after the Defendants filed their Reply, Plaintiff “filed a Petition for Review in the United States Court of Appeals for the Eighth Circuit, pursuant to 21 U.S.C. § 877, from the ‘DEA Letter’ of December 19, 2008.” Clerk’s No. 28. Despite his filing with the Court of Appeals, Plaintiff maintains that the present lawsuit is appropriately before this Court on the basis that “[t]his Court is more qualified to authoritatively interpret the language of the CSA than the DEA.” Pl.’s Supp. Resistance at 2.
II. DEFENDANTS’ MOTION TO DISMISS
The Defendants contend that Plaintiffs Complaint must be dismissed because this Court lacks subject matter jurisdiction over Plaintiffs claims pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants further assert that Plaintiff has failed to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
A. Standard of Review
A federal district court has subject matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal Rule of Civil Procedure 12(b)(1) provides that a party may raise the defense of “lack of jurisdiction over the subject matter” in a motion before answering the complaint filed in any action. Fed.R.Civ.P. 12(b)(1). Federal courts have a duty in every case to determine whether the prerequisite of subject matter jurisdiction has been satisfied.
Bradley v. American Postal Workers Union, AFL-CIO,
In order for the Court to dismiss a claim under Federal Rule of Civil Procedure 12(b)(1), the opposing party must successfully challenge the claim “on its face or the factual truthfulness of its averments.”
Titus v. Sullivan,
B. Law and Analysis
The CSA is a comprehensive federal regulatory scheme that makes it unlawful for any person to “knowingly or intentionally ... manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance,” or to “possess a controlled substance,” except “as authorized” by the CSA. 21 U.S.C. §§ 841(a), 844(a). Specifically, the CSA subdivides controlled substances into five “schedules.” See 21 U.S.C. § 812(a). Schedule V controlled substances are the least regulated, whereas Schedule I substances are subject to the most stringent controls and the harshest penalties. The CSA provides the following guidelines for the scheduling of controlled substances:
(b) Placement on schedules; findings required
Except where control is required by United States obligations under an international treaty, convention, or protocol, in effect on October 27, 1970, and except in the ease of an immediate precursor, a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for each of the schedules are as follows:
(1) Schedule I.—
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.
(2) Schedule II.—
*991 (A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
(C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.
(3) Schedule III.—
(A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.
(4) Schedule IV.—
(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule III.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III.
(5) Schedule V.—
(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.
21 U.S.C. § 812.
Plaintiffs assertion that marijuana’s presence on Schedule I is unlawful is based on a selective reading of § 812, and ignores other relevant language in § 812 and in the CSA in general. Section 812(a) provides for the establishment of the five schedules. Section 812(a), however, also specifically provides that the five schedules “shall initially consist of the substances listed in this section.” 21 U.S.C. § 812(a). Marijuana was listed on Schedule I at the time of the CSA’s enactment, under § 812(c), which provides that “Schedules I, II, III, IV, and V shall, unless and until amended pursuant to section 811 of this title, consist of the following drugs or other substances.... ” 21 U.S.C. § 812(c) (emphasis added); 21 U.S.C. § 812(c)(c)(10) (listing “marihuana” on Schedule I); see also 21 U.S.C. § 802(6) (providing that a “controlled substance” is “a drug or other substance ... included in schedule I, II, III, TV, or V of part B of this subchapter”). Section 812(b) then provides a forward-looking component to be used in future scheduling determinations, providing with limited exceptions that “a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance.” 21 U.S.C. § 812(b).
“In enacting the statutory classifications of controlled substances, Congress expressly provided that its initial designation of the schedules would remain in effect “unless and until amended pursuant to section 811 of [the CSA].” ”
United States v. Schrock,
Congress provided “a comprehensive reclassification scheme” in § 811 of the CSA.
United States v. Fogarty,
(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. § 811(c). Before undertaking any scheduling, rescheduling, or descheduling determination, however, the Attorney General must “gather[ ] the necessary data [and] request from the Secretary [of Health and Human Services] a scientific and medical evaluation, and [the Secretary’s] recommendations, as to whether *993 such drug or other substance should be so controlled or removed as a controlled substance.” 21 U.S.C. § 811(b). In making this evaluation and recommendation, the Secretary “shall consider factors (2), (3), (6), (7), and (8) [enumerated above] and any scientific or medical considerations involved in paragraphs (1), (4), and (5).” Id. “The recommendations of the Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters.... ” Rulemaking proceedings by the Attorney General may be initiated by the Attorney General’s own motion, at the request of the Secretary of Health and Human Services, or “on the petition of any interested person.” 21 U.S.C. § 811(a).
The CSA provides a methodology for appeal of § 811 determinations by the Attorney General:
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. Findings of fact by the Attorney General, if supported by substantial evidence, shall be conclusive.
21 U.S.C. § 877.
Plaintiff insists that, despite the detailed regulatory scheme set out for modification of the controlled substances schedules in the CSA, this Court has the authority to find that marijuana is not properly listed in Schedule I and to order the Defendants to cease and desist from enforcing laws arising from marijuana’s classification as such. The Court disagrees and finds that it lacks jurisdiction over the present matter because Plaintiffs proper and exclusive remedy is one he is already pursuing in parallel litigation, namely, he must petition the Attorney General for a re- or descheduling determination and, upon an adverse ruling, appeal the Attorney General’s determination to the proper United States Court of Appeals in conformity with 21 U.S.C. § 877.
“Where the intent of Congress is clear to require administrative determination, either to the exclusion of judicial action or in advance of it, a strong showing is required, both the inadequacy of the prescribed procedure and of impending harm, to permit short-circuiting the administrative process.”
Aircraft & Diesel Equip. Corp. v. Hirsch,
Plaintiff acknowledges the existence of the administrative procedures of § 811 and the fact that exclusive jurisdiction to appeal from an adverse DEA administrative determination lies with the Courts of Appeals. Nonetheless, Plaintiff insists that because he is seeking a declaration that marijuana is improperly classified as a Schedule I controlled substance, he need not follow the typical administrative review process. Plaintiff cites Monson v. DEA, 522 F.Supp.2d 1188, 1194 (D.N.D.2007) in support of this proposition.
In
Monson,
two North Dakota farmers with state licenses to cultivate industrial hemp sought a declaration that they could not be subjected to federal prosecution under the CSA for engaging in the state-licensed activity.
Plaintiff contends that “[s]imilar to the plaintiffs in Monson v. DEA, the Plaintiff here seeks a declaration that the Controlled Substances Act does not apply to the Plaintiffs use of marijuana as a religious sacrament because marijuana is currently misclassified.” Pl.’s Supp. Resistance at 6. The Court finds Monson easily distinguishable. In Monson, the plaintiff farmers argued that industrial hemp did not fall within the definition of “marijuana” in the CSA, i.e., that industrial hemp was never a controlled substance intended to be regulated by the CSA in the first instance. In the present case, Plaintiff does not assert that marijuana was never a controlled substance or that the inclusion of marijuana as a Schedule I substance at the time the CSA was enacted was improper. Rather, he contends that marijuana no longer meets the criteria for inclusion on Schedule I because several states have determined that it has an “accepted medical use in treatment in the United States” pursuant to 21 U.S.C. § 812(b)(1)(B). In short, the relief that Plaintiff seeks is relief Congress expressly anticipated in its formulation of the CSA. See 21 U.S.C. § 811(a) (authorizing the Attorney General to transfer a substance between schedules or to “remove any drug ... from the schedules if he finds that [it] does not meet the requirements for inclusion on any schedule”). Furthermore, Plaintiffs argument is one for which Congress provided a specific and detailed administrative avenue of relief, as well as a means for appealing the denial of such relief. The Court, therefore, concludes that the present lawsuit amounts to nothing more than an attempt to circumvent *995 the clear Congressional intent to have scheduling determinations made by the Attorney General, consistent with the factors in § 811 and subject to review only by the Courts of Appeals. 11
III. CONCLUSION
For the reasons stated herein, Plaintiffs Motions for Judicial Notice Pursuant to Federal Rule of Evidence 201 (Clerk’s Nos. 13, 19, 22, 28, 36) are GRANTED. The Court, however, finds that it lacks subject matter jurisdiction over the present action. Having exhausted his administrative remedies by petitioning the DEA to reschedule marijuana, Plaintiffs only recourse is to pursue an appeal of the DEA’s adverse decision to the appropriate Court of Appeals, consistent with the provisions of 21 U.S.C. § 877. Accordingly, Defendants’ Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim upon which Relief can be Granted (Clerk’s No. 6) is GRANTED. Plaintiffs Motion for Summary Judgment (Clerk’s No. 9), Plaintiffs Motion for Preliminary Injunction (Clerk’s No. 10), and Plaintiffs Motion for Temporary Restraining Order (Clerk’s No. 25) are DENIED as moot.
IT IS SO ORDERED
Notes
. Plaintiff originally named Michael Mukasey, Attorney General of the United States, Michele Leonhart, Acting Administrator, United States Drug Enforcement Administration, and Condoleezza Rice, United States Secretary of State, as Defendants in this matter. The Court substitutes current Attorney General Eric Holder for former Attorney General Michael Mukasey and substitutes current Secretary of State Hillary Clinton for former Secretary of State Condoleezza Rice, pursuant to Federal Rule of Civil Procedure 25(d).
. Plaintiff filed a resistance to the motion on November 22, 2008. Clerk's No. 8. Defendants filed a supplemental brief in support of the Motion to Dismiss on January 15, 2009. Clerk’s No. 27. Plaintiff filed a supplemental response on January 20, 2009. Clerk’s No. 33.
. Defendants filed a resistance to the motion on December 17, 2008. Clerk's No. 17. Plaintiff filed a Reply on the same date. Clerk’s No. 18.
. Defendants filed a resistance to the motion on December 11, 2008. Clerk’s No. 18. Plaintiff filed a Reply on December 14, 2008. Clerk’s No. 16.
. Defendants filed a resistance to the motion on January 26, 2009. Clerk’s No. 34. Plaintiff filed a Reply on January 29, 2009. Clerk’s No. 35.
. The only Motion for Judicial Notice that Defendants have filed a response to is the one filed December 26, 2008. The Government filed its response on January 5, 2009. Clerk’s No. 20. Plaintiff filed a Reply on January 6, 2009. Clerk’s No. 21.
. Plaintiff's Complaint does, however, allege that his "religious freedom is being irreparably injured by the DEA's unlawful scheduling of marijuana.” Compl. at 14 (subpart F).
. 21 U.S.C. § 903 provides:
No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.
. As noted, Defendants also contend that dismissal is warranted under Federal Rule of Civil Procedure 12(b)(6).
Bell Atlantic Corp. v. Twombly,
. The Attorney General has delegated authority concerning "functions vested in the Attorney General by the Comprehensive Drug Abuse Prevention and Control Act of 1970" to the Administrator of the Drug Enforcement Administration. 28 C.F.R. § 0.100(b). The Administrator of the Drug Enforcement Administration has, in turn, delegated this authority to the Deputy Administrator of the Drug Enforcement Administration, pursuant to 28 C.F. R. § 0.104. See App. to Subpart R, § 12. For simplification, the Court will refer to the Attorney General and the DEA interchangeably throughout this order.
.
See John Doe, Inc. v. Drug Enforcement Admin.,