While most attention has focused on the recently concluded marijuana rescheduling hearing, an equally significant legal battle has unfolded in the D.C. Circuit over the final rescheduling order (“Final Order”). Petitioners, the Department of Justice, newly intervening parties, and amici participants have exchanged a series of briefs over the past month. Those filings may ultimately determine whether the rescheduling effort survives judicial review.
At this stage, however, the court is not deciding whether moving marijuana to Schedule III was lawful. Instead, the parties are litigating several threshold issues. The court must resolve those questions before it can reach the merits. Most importantly, it must decide whether any petitioner has standing to challenge the Final Order, whether implementation of that order should be stayed while the litigation proceeds, and whether additional parties may intervene in support of rescheduling.
How the court answers these procedural questions may prove just as important as the merits of the Final Order.
(All briefs discussed can be found on PACER, D.C. Circuit Court of Appeals Docket #: 26-1136)
Standing comes first
As I have discussed previously, the fate of the Final Order may turn less on marijuana policy than on a fundamental question of administrative law: standing. Before the D.C. Circuit can consider whether the Department of Justice lawfully moved marijuana to Schedule III, it must determine whether any petitioner has suffered the type of concrete injury required to challenge the Final Order.
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Medical Marijuana Schedule III Litigation: The D.C. Circuit’s First Major Test
