UNITED STATES of America, Plaintiff-Appellee, v. William Waldo EMERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Scott WOLLMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bruce EHRLICH, Defendant-Appellant.
Nos. 86-5267, 86-5274 and 86-5275
United States Court of Appeals, Ninth Circuit
Decided May 10, 1988
846 F.2d 541
Argued and Submitted June 2, 1987.
AFFIRMED.
BACKGROUND
Defendants were indicted for their activities involving the distribution of MDMA from or before September 1985 to February 1986. Defendants moved to dismiss the indictment on the ground that the Administrator improperly scheduled MDMA as a temporarily controlled substance. The district court denied the motion. Defendant Emerson then pled guilty to conspiracy to distribute a controlled substance. Defendants Wollman and Ehrlich pled guilty to distribution and conspiracy to distribute a controlled substance. All pleas reserved the right to appeal the court‘s order upholding the temporary scheduling of MDMA. The defendants timely appeal to this court under
ANALYSIS
The Controlled Substances Act, Pub.L. No. 91-513, tit. II, 84 Stat. 1242 (1970) (codified as amended at
Yolanda Orozco, Los Angeles, Cal., for defendant-appellant Emerson.
Michael D. Nasatir, Nasatir & Hirsch, Santa Monica, Cal., for defendant-appellant Ehrlich.
J. Brendan O‘Neill, Santa Monica, Cal., for defendant-appellant Wollman.
Michael W. Emmick, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before HUG, BOOCHEVER and WIGGINS, Circuit Judges.
BOOCHEVER, Circuit Judge:
William Waldo Emerson, Scott Wollman, and Bruce Ehrlich (defendants) appeal their convictions under
- Its actual or relative potential for abuse.
- Scientific evidence of its pharmacological effect, if known.
- The state of current scientific knowledge regarding the drug or other substance.
- Its history and current pattern of abuse.
- The scope, duration, and significance of abuse.
- What, if any, risk there is to the public health.
- Its psychic or physiological dependence liability.
- Whether the substance is an immediate precursor of a substance already controlled under this subchapter.
Congress recognized that permanent scheduling could take from six to twelve months, during which time “enforcement actions against traffickers are severely limited and a serious health problem may arise.” S.Rep. No. 225, 98th Cong., 2d Sess. 264, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3446; see also H.R.Rep. No. 835, 98th Cong., 2d Sess., pt. 1, at 11-12 (1984). As a result, Congress amended the Controlled Substances Act in 1984 to authorize the Attorney General to schedule substances on an emergency basis without “wait[ing] the exhaustive medical and scientific determinations ordinarily required when a drug is being considered for control.” S.Rep. No. 225, 98th Cong., 2d Sess. 265, reprinted in 1984 U.S.Code Cong. & Admin.News at 3447. The amendment, the Dangerous Drug Diversion Control Act of 1984 (1984 Act), Pub.L. No. 98-473, tit. II, sec. 508, 98 Stat. 2070, 2071-72 (codified at
On May 31, 1985, acting pursuant to the 1973 delegation and the Attorney General‘s temporary scheduling authority under
I. REVIEWABILITY
Defendants challenge the constitutionality of section 811(h), the Administrator‘s general authority to schedule substances temporarily, and the propriety of the particular MDMA scheduling order. Ordinarily these issues would be properly before the court in a criminal proceeding. See generally
The government argues that section 811(h)(6) disallows all review by this court—including constitutional review—of the issuance of particular temporary scheduling orders. We disagree. This provision does not refer specifically to review of section 811(h)‘s constitutionality or the authority of the Administrator to schedule substances temporarily. Absent “clear and convincing” evidence that Congress intended to preclude constitutional review of agency action, we presume such review to be available. Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977); Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974); Rodrigues v. Donovan, 769 F.2d 1344, 1347 (9th Cir.1985). There is no “clear and convincing” evidence that Congress intended section 811(h)(6)‘s general preclusion of “judicial review” to extend to constitutional review of the Attorney General‘s temporary scheduling orders. Nor does the legislative history of § 811(h) provide any indication that Congress intended to undertake such “extraordinary” action. Sanders, 430 U.S. at 109, 97 S.Ct. at 986. Construing a statute to preclude constitutional review would “raise serious questions concerning [its] constitutionality,” and therefore, whenever possible, statutes should be interpreted as permitting such review. Johnson, 415 U.S. at 366-67, 94 S.Ct. at 1165. This appeal does not require us to address whether Congress has the power to preclude constitutional review. We merely hold that consistent with section 811(h)(6), we can review on appeal from a criminal conviction the constitutionality of the Administrator‘s temporary scheduling of MDMA. Cf. Rodrigues, 769 F.2d at 1347-48 (statute making Secretary of Labor‘s decision to deny payments unreviewable did not bar review to ensure that decision comported with fifth amendment‘s guarantee of due process).
We express no opinion whether section 811(h)(6) precludes judicial review of temporary scheduling orders in criminal enforcement proceedings to determine their compliance with the relevant statutory requirements. In United States v. Caudle, 828 F.2d 1111, 1112 (5th Cir.1987), the Fifth Circuit held that the order scheduling MDMA was ineffective because it failed to meet section 811(h)‘s requirement that such an order “may not be issued before the expiration of thirty days from ... the date of the publication by the Attorney General of a notice in the Federal Register of the intention to issue such order and the grounds on which such order is to be issued.”
A. Congressional Delegation to the Attorney General
Defendants argue that section 811(h) impermissibly delegates Congress’ legislative power to the executive and that its provisions are so arbitrary that it does not comport with due process of law. The constitutionality of the statute is a question of law, which we review de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
Congress may provide criminal sanctions for violation of regulations provided that the authority delegated to the executive to promulgate the regulations is “accompanied by sufficient guidelines and standards for the exercise of the authority.” United States v. Davis, 564 F.2d 840, 844 (9th Cir.1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 733, 54 L.Ed.2d 760 (1978). This court in Davis held section 811(a)‘s permanent scheduling authorization to be a constitutional delegation of authority. 564 F.2d at 843-44. Section 811(a) requires a finding of “a potential for abuse,” the requisite findings of section 812, and consideration of the eight factors in section 811(c). Section 811(h) requires a finding of necessity of temporary scheduling “to avoid an imminent hazard to the public safety” and consideration of “those factors set forth in [section 811(c)(4), (5), and (6)], including actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution.” Section 811(h)‘s scheduling criteria are as specific as reasonably practicable to meet the threat to the public safety posed by designer drugs, and to provide the Attorney General with sufficient guidance in scheduling dangerous substances temporarily.
Section 811(h)‘s temporary scheduling procedure provides significantly less opportunity for public notice and comment than that available for permanent scheduling under section 811(a). While section 811(a) requires APA notice and hearing before a substance may be permanently scheduled, section 811(h)(1)(A) only requires the Attorney General to place a notice in the Federal Register thirty days before the temporary scheduling order is issued and becomes effective. Also, section 811(h), unlike section 811(a), specifically provides that a temporary scheduling order “is not subject to judicial review.”
Defendants argue that the lack of notice and comment and restriction of judicial review remove safeguards that protect against an abuse of discretion by the Attorney General. It is true that the APA provides procedural protections to ensure that executive agencies conform to the standards set out in the legislation. See Davis, 564 F.2d at 844. Nonetheless, the absence of notice and public comment does not render section 811(h) a constitutionally infirm delegation of legislative power. The temporary scheduling of a controlled substance is an emergency measure, lasting at most eighteen months. Requiring lengthy public comment could jeopardize the public safety sought to be protected by temporary scheduling.
Nor do we believe that section 811(h)(6)‘s preclusion of “judicial review” invalidates the statute under a separation of powers theory. We have held that the section is subject to constitutional review. Temporary scheduling orders are thus reviewable to ensure compliance with the fifth amendment‘s guarantee of due process. See supra section I. Even assuming that section 811(h)(6) bars all judicial review of scheduling orders to determine their compliance with the statutory requirements of section 811(h), we do not find this unconstitutional. A constitutionally imposed requirement of judicial review to ensure compliance with statutory standards would invalidate many statutes precluding judicial review. See
B. Due Process
Defendants also challenge section 811(h) as an inappropriate means to protect the public safety. Defendants argue that two aspects of the temporary scheduling procedure are arbitrary and irrational and therefore violate due process of law. First, the temporary procedure requires all temporarily scheduled drugs be placed in Schedule I. Second, the procedure‘s “necessary to avoid an imminent hazard to the public safety” standard withdraws consideration of scientific evidence, the drug‘s dependence liability, and whether the precursor of the substance is already controlled. Defendants assert no fundamental right to distribute controlled substances. Thus, to successfully assert a substantive due process claim they must “overcome a presumption of constitutionality” and show that Congress “has acted in an arbitrary and irrational way.” National R.R. Passenger Corp. v. Atchison, T. & S.F. Ry., 470 U.S. 451, 472, 105 S.Ct. 1441, 1455, 84 L.Ed.2d 432 (1985) (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104 S.Ct. 2709, 2717, 81 L.Ed.2d 601 (1984)).2
Section 811(h) clearly survives rationality review. Harsh punishment of those who distribute substances posing “an imminent hazard to the public safety” is not an irrational means of reducing that hazard. The fact that no scheduling distinction is made between those drugs found by the Attorney General to pose varying degrees of imminent hazard does not affect section 811(h)‘s rationality. In Williamson v. Lee Optical, 348 U.S. 483, 487-88, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955) the Court held that “the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Likewise, Congress’ dispensing with scientific evaluation of a substance does not make section 811(h) irrational. Given the need for immediate action to protect public safety, the Attorney General‘s determination of an imminent threat to that safety is a reasonable basis for scheduling substances on a temporary basis.
Temporary scheduling lasts, for the most, eighteen months.
III. SUBDELEGATION OF TEMPORARY SCHEDULING AUTHORITY TO ADMINISTRATOR
Defendants also argue that the Attorney General has failed to subdelegate
Defendants contend, however, that the Attorney General has not similarly delegated his temporary scheduling authority to the Administrator. They point out that section 811(h) was enacted not in the 1970 Controlled Substances Act, but rather in the 1984 Act. Defendants argue that only by specifically delegating his authority under the 1984 Act could the Attorney General assign to the Administrator temporary scheduling authority under section 811(h). The interpretation of the Attorney General‘s 1973 authorization order is a question of law which we review de novo. Cf. Trustees of Amalgamated Ins. Fund v. Geltman Indus., 784 F.2d 926, 929 (9th Cir.) (de novo review for statutory interpretation), cert. denied, 479 U.S. 822, 107 S.Ct. 90, 93 L.Ed.2d 42 (1986).
We hold that the Attorney General‘s 1973 delegation of permanent scheduling to the Administrator does not apply to the power to schedule drugs temporarily under the 1984 Act. In so holding, we are in agreement with the Tenth Circuit‘s recent decision in United States v. Spain, 825 F.2d 1426 (10th Cir.1987). See also United States v. Hovey, 674 F.Supp. 161, 169-70 (D.Del.1987) (following Spain). We are reluctant to create a direct conflict with the Tenth Circuit, criminalizing behavior in our jurisdiction which is not proscribed in another. Further, like the Tenth Circuit, we conclude that the differences between sections 811(a) and 811(h) are so marked that we may not assume that the Attorney General‘s delegation of his authority under section 811(a) was intended to encompass the emergency powers granted to him eleven years later by section 811(h).
First, to schedule a drug temporarily under section 811(h), the Attorney General must consider only three of the eight factors required for permanent scheduling under section 811(a): the substance‘s “history and current pattern of abuse,” the “scope, duration, and significance of abuse,” and the “risk ... to the public health.”
A second difference between the two procedures is that section 811(a) requires a hearing and public comment as specified in the APA,
The third major difference between permanent and temporary scheduling further emphasizes the unilateral nature of the decision to schedule a drug under section 811(h). Before permanent scheduling, the Administrator must request a scientific and
The government argues that when in 1973 the Attorney General delegated his authority to schedule substances permanently under the Controlled Substances Act of 1970, he impliedly delegated his authority under any amendment to the Act. Any other interpretation, according to the government, would require a new delegation any time an amendment, however minor or technical, is added to the Act. Our holding does not dictate that result. As discussed above, it is because section 811(h) is an almost entirely different procedure, and the Administrator‘s role in that new procedure would be so fundamentally altered, that a specific delegation of temporary scheduling authority is necessary. Section 811(h) is more than a mere amendment; changes to the Act that do not propose such an altered role for the Administrator would not necessarily require explicit delegation. For example, in 1984, Congress also amended section 811(g) to provide for the exemption of certain mixtures containing controlled substances.
Nor is it persuasive to cite, as the government does, the subsequent actions of Congress or the Attorney General as evidence of the intent to delegate temporary scheduling to the Administrator. A failure to challenge or correct the Administrator‘s actions, or even tacit approval of those actions, is not a substitute for express delegation by the Attorney General. If delegation is to be accomplished by omission, any opportunity for prior review, however lenient, of the propriety of delegation is lost.
We emphasize, however, that our conclusion that temporary scheduling was not properly delegated to the Administrator does not imply that any such subdelegation would be inappropriate. The Tenth Circuit has questioned whether Congress intended to permit the Attorney General to subdelegate his temporary scheduling authority. Spain, 825 F.2d at 1428-29. We do not reach that issue here. Nor do we suggest that the Administrator is necessarily an inappropriate official to make the determination that temporary scheduling is necessary. We simply hold that the delegation of permanent scheduling does not encompass delegation of the very different function added to the statute eleven years after its first enactment.
IV. VALIDITY OF THE MDMA SCHEDULING ORDER
Because we hold that the Attorney General did not delegate his temporary scheduling authority to the Administrator, we do not reach the issue of whether the order placing MDMA on Schedule I was otherwise proper or whether the Administrator‘s order met section 811(h)(1)‘s procedural requirements. But see Caudle, 828 F.2d at 1112 (order ineffective because no thirty-day notice); Spain, 825 F.2d at 1429 (ques-
CONCLUSION
The Administrator‘s temporary scheduling of MDMA was an improper exercise of authority not delegated to him by the Attorney General. The judgments of conviction of the defendants are REVERSED.
WIGGINS, Circuit Judge, dissenting:
Because I disagree with the majority‘s conclusion that the Attorney General failed properly to subdelegate to the Administrator of the Drug Enforcement Agency (DEA) his authority to schedule dangerous, new, “designer” drugs temporarily, I dissent.
I do not share the majority‘s narrow reading of the Attorney General‘s authorization order for delegation of his duties to the DEA.
The majority, however, adopts wholesale the analysis of United States v. Spain, 825 F.2d 1426 (10th Cir.1987), and rules to the contrary. I believe Spain was premised on two false assumptions: (1) that whether the Attorney General had subdelegated his temporary scheduling authority depended on the degree of similarity between that process and the permanent scheduling process, and (2) that these two processes were wholly dissimilar. As for the second assertion, the Spain decision considered temporary scheduling to be fundamentally different from permanent scheduling. Id. at 1428. The court stated that the DEA is a “technical group” incompetent to determine, under section 811(h)(1), whether temporary scheduling is necessary to avoid imminent danger to the public safety. Id. Spain found this general public safety decision to be within the Attorney General‘s special expertise, and therefore it concluded that the Attorney General would not have intended the 1973 subdelegation to extend to temporary scheduling authority. Id.
However, in determining the threat to the public safety under section 811(h)(1), the substance‘s “history and current pattern of abuse,” the “scope, duration, and significance of abuse,” and “risk ... to the public health” must be considered.
I believe, therefore, that the temporary scheduling process is not so different from the permanent scheduling process. And even if it were, I do not think that would require a holding that subdelegation had not been perfected in this case. The court in Spain relied on the rule that ambiguous criminal statutes be read narrowly and with lenity in order to interpret the Attorney General‘s 1973 delegation to the Administrator as not extending to temporary substance scheduling 825 F.2d at 1429 (citing United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), and Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955)). Assuming, arguendo, that the rule of lenity applies to situations in which the criminal prohibition itself is clear but the authority to proscribe the activity is doubtful,3 I do not find the 1973 delegation to be ambiguous. The Attorney General in 1973 unquestionably delegated to the Administrator his functions under the Controlled Substances Act, and temporary scheduling is clearly one of the Attorney General‘s functions under the Controlled Substances Act as amended. I decline to construe the 1973 delegation so strictly as to defeat the Attorney General‘s obvious intention to permit the Administrator temporarily to schedule substances. Cf. Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1271, 39 L.Ed.2d 782 (1974) (“Although penal laws are to be construed strictly, they ‘ought not be construed so strictly as to defeat the obvious intention of the legislature.‘“) (quoting American Fur Co. v. United States, 27 U.S. (2 Pet.) 358, 367, 7 L.Ed. 450 (1829)). This is not the case of a rogue agency usurping the Attorney General‘s authority. If the Attorney General did not intend the Administrator to schedule substances temporarily under the 1973 delegation, I am confident he would have acted to reduce the Administrator‘s authority.
I believe the plain intent of Congress was to establish an expedited system of review in order to criminalize the possession, manufacturing, and distribution of newly-developed “designer” drugs before they became public health hazards. The responsibility for this temporary scheduling process was vested sensibly in the DEA, through the Attorney General. The majority‘s decision requires that when any amendment to a crime-fighting statute is adopted, no matter how technical or minor, a new trail of delegation and subdelegation be laid down, even when past delegation practice is clear and unambiguous. The majority‘s decision vacates a criminal conviction because of an alleged lack of proper delegation of authority. I believe the majority demands too much of the government‘s crime-fighting efforts in the face of an unambiguous delegation of responsibility by Congress.
I respectfully dissent.