INTERVENOR’S RESPONSE TO PETITION FOR WRIT OF...

Intervenor’s Response to Petition for Writ of Mandamus – Cover

No. 11-5121

_____________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________________________________________

_____________________________________________

)

In re COALITION TO RESCHEDULE CANNABIS )

_____________________________________________ )

INTERVENOR’S RESPONSE TO PETITION FOR WRIT OF MANDAMUS

CARL ERIC OLSEN

130 E. Aurora Ave.

Des Moines, IA 50313-3654

515-288-5798 home phone

515-343-9933 cell phone

Pro Se

July 23, 2011

USCA Case #11-5121 Document #1320359 Filed: 07/23/2011 Page 1 of 25

Intervenor’s Response to Petition for Writ of Mandamus – Page i

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OLSEN INTERVENED TO DEFEND FEDERALISM AND STATE

SOVEREIGNTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

FEDERALISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

DEPARTMENT OF JUSTICE MEMOS . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

UNREASONABLE DELAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

NEWER EVIDENCE MISSING FROM THE RECORD . . . . . . . . . . . . . . . 13

REMAND IS JUSTIFIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

DEFECTS IN PETITION FOR MANDAMUS . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


Intervenor’s Response to Petition for Writ of Mandamus – Page ii

TABLE OF AUTHORITIES

Cases

Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936 (D.C. Cir. 1991) . . . . . 7

Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994) . . . . . 7

Bond v. United States, 564 U.S. ___, 180 L.Ed.2d 269 (June 16, 2011) . . . . . 11, 13

Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.Supp.2d 1 (D.D.C.

2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 3

Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Gonzales v. Oregon, 546 U.S. 243 (2006) . . . . . . . . . . . . . . . . . . . . . 2, 3, 5, 8, 9, 11

Gonzales v. Raich, 545 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 12

McMahon v. Iowa Board of Pharmacy, No. CV7415 (Iowa District Court 2009) . 4

NORML v. DEA, No. 79-1660 (D.C. Cir., Oct. 16, 1980) . . . . . . . . . . . . . . . . . . 16

Olsen v. DEA, 332 Fed. Appx. 359 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Olsen v. Holder, 610 F.Supp.2d 985 (S.D. Iowa 2009) . . . . . . . . . . . . . . . . . . . . . . 5

Olsen v. State of Iowa, No. CV8682 (Iowa District Court 2011) . . . . . . . . . . . . . . 6

Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 9, 10

Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir.

1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18


Intervenor’s Response to Petition for Writ of Mandamus – Page iii

Statutes and Regulations

5 U.S.C. § 706(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

21 U.S.C. § 811(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Other Authorities

72 Fed. Reg. 54226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

74 Fed. Reg. 24693 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

76 Fed. Reg. 40552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 13

American Medical Association (Nov. 10, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Iowa Board of Pharmacy (Feb. 17, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15

National Cancer Institute (July 8, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. Patent No. 6,630,507 B1 (Oct. 7, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


Intervenor’s Response to Petition for Writ of Mandamus – Page 1 of 21

INTRODUCTION

Olsen agrees with response (Document #1319507, Filed July 19, 2011) filed

by the Respondent (“DEA” hereafter). The Petition for Writ of Mandamus is

moot. The petitioners (“Coalition” hereafter) have asked this court to compel a

response from DEA and DEA has responded.

DEA denied the petition to reschedule cannabis on June 21, 2011. See

DEA Denial of Petition, 76 Fed. Reg. 40552 (Friday, July 8, 2011). Olsen was

notified through a Coalition press release on July 8, 2011, the same day DEA’s

final order denying the petition was published in the Federal Register. This Court

ordered DEA to respond to the Petition for Writ of Mandamus on June 23, 2011,

and ordered Olsen to respond to the Petition for Writ of Mandamus on July 12,

2011.

Olsen was an original member of Coalition when the Coalition filed its

petition to reschedule cannabis in 2002. Olsen was an original member of the

Coalition both in his own name and as a representative of Iowans for Medical

Marijuana. See Petition for Writ of Mandamus at page 11 (Letter from Michael

Kennedy to DEA, dated October 9, 2002 [found at

http://www.safeaccessnow.org/downloads/CRC_Letter.pdf]).

The damage Olsen sought to prevent by intervening in this case has now

occurred, a DEA final ruling on an old, stale record from 2002, and a DEA final


www.safeaccessnow.org/downloads/CRC_Letter.pdf


ruling without representation in any official capacity by any State in the United

States that accepts the medical use of marijuana.

OLSEN INTERVENED TO DEFEND

FEDERALISM AND STATE SOVEREIGNTY

In 2006, after reading the following two cases:

Gonzales v. Raich, 545 U.S. 1, 28 n.37 (2005):

We acknowledge that evidence proffered by respondents in this case

regarding the effective medical uses for marijuana, if found credible

after trial, would cast serious doubt on the accuracy of the findings

that require marijuana to be listed in Schedule I.

and Gonzales v. Oregon, 546 U.S. 243, 258 (2006):

The Attorney General has rulemaking power to fulfill his duties under

the CSA. The specific respects in which he is authorized to make

rules, however, instruct us that he is not authorized to make a rule

declaring illegitimate a medical standard for care and treatment of

patients that is specifically authorized under state law.

Olsen became aware of exactly what role the states play in the federal Controlled

Substances Act and what role the federal executive branch agency plays. Under

the Controlled Substances Act, States (protecting the health and welfare of their

citizens) are the master and the federal executive branch agency is the servant

(preventing abuse, defined as unauthorized use):

The statute and our case law amply support the conclusion that

Congress regulates medical practice insofar as it bars doctors from

using their prescription-writing powers as a means to engage in illicit

drug dealing and trafficking as conventionally understood. Beyond

this, however, the statute manifests no intent to regulate the practice

of medicine generally. The silence is understandable given the



structure and limitations of federalism, which allow the States “‘great

latitude under their police powers to legislate as to the protection of

the lives, limbs, health, comfort, and quiet of all persons.’”

Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S. Ct. 2240, 135 L.

Ed. 2d 700 (1996) (quoting Metropolitan Life Ins. Co. v.

Massachusetts, 471 U.S. 724, 756, 105 S. Ct. 2380, 85 L. Ed. 2d 728

(1985)).

Gonzales v. Oregon, 546 U.S. at 269-270.

After reading and analyzing these two cases, Olsen organized a meeting with

Iowa patients and the ACLU of Iowa in September of 2006 to discuss planning a

strategy based on Gonzales v. Oregon. As a result of that meeting Olsen, George

McMahon (“McMahon” hereafter) and Barbara Douglass (“Douglass” hereafter)

incorporated Iowans for Medical Marijuana. Olsen had been using the name

Iowans for Medical Marijuana since 1990 when he first met federal IND patient

McMahon. McMahon’s and Douglass’ affidavits are attached to the decision in

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).

McMahon, Douglass and Olsen incorporated Iowans for Medical Marijuana

in 2006 for the purpose of petitioning to have marijuana removed from schedule I

in Iowa. Olsen and McMahon petitioned the Iowa Board of Pharmacy (“Board”

hereafter) to remove marijuana from schedule I in 2008. The Board initially held

that marijuana could not be removed from schedule I unless it was shown to lack a

high potential for abuse [found at

http://www.iowamedicalmarijuana.org/petitions/pdfs/ibpe_order_20081007.pdf],


www.iowamedicalmarijuana.org/petitions/pdfs/ibpe_order_20081007.pdf


but the Iowa District Court in and for Polk County held the Board’s ruling was

based on an erroneous interpretation of law [found at

http://www.iowamedicalmarijuana.org/petitions/pdfs/cv7415_order_20090421.pdf

]. See McMahon v. Iowa Board of Pharmacy, No. CV7415 (Ruling on Petition for

Judicial Review, April 21, 2009). In the Fall of 2009, the Iowa Board of

Pharmacy held a series of public hearings and took medical and scientific evidence

from August 19, 2009, through November 4, 2009 [found at

http://www.iowamedicalmarijuana.org/pharmacyhearings.aspx]. In 2010, the

Iowa Board of Pharmacy voted unanimously in favor of removing marijuana from

schedule I. See Iowa Board of Pharmacy’s Meeting Minutes from February 17,

2010 [found at http://www.iowa.gov/ibpe/pdf/2010_02_17minutes.pdf].

In 2007, shortly after New Mexico became the 12th

state to accept the

medical use of marijuana, Olsen contacted Jon Gettman (“Gettman” hereafter) and

suggested that the Coalition’s Petition for Rescheduling should be joined by a State

government. Gettman told Olsen that the Coalition did not want to cause any delay

by bringing in a new argument. Gettman told Olsen that he had included an

argument in the Petition for Rescheduling that marijuana had accepted medical use

in the United States because 8 states had accepted it as of 2002 when the petition

was filed. Gettman told Olsen that his attorney, Michael Kennedy, would make an


www.iowamedicalmarijuana.org/petitions/pdfs/cv7415_order_20090421.pdf

www.iowamedicalmarijuana.org/petitions/pdfs/cv7415_order_20090421.pdf

http://www.iowamedicalmarijuana.org/pharmacyhearings.aspx

www.iowa.gov/ibpe/pdf/2010_02_17minutes.pdf


argument based on Gonzales v. Oregon, 546 U.S. 243 (2006), if there was an

appeal from a DEA final ruling denying the petition.

In May of 2008 Olsen filed his own petition with the DEA to have cannabis

removed from schedule I based on accepted medical use in 12 states. At the same

time Olsen also filed a Complaint for Declaratory and Injunctive Relief in the

United States District Court for the Southern District of Iowa to enjoin the

enforcement of federal schedule I [found at

http://www.iowamedicalmarijuana.org/petitions/pdfs/original-complaint-final.pdf].

Olsen v. Holder, 610 F.Supp.2d 985 (S.D. Iowa 2009), appeal denied, Olsen v.

DEA, 332 Fed. Appx. 359 (8th Cir. 2009), No 09-1162. Olsen also wrote letters to

the attorneys general of 13 states which had accepted the medical use of marijuana

asking them to join Olsen’s complaint against the U.S. Department of Justice. A

few of the states’ attorneys general responded, but none of them were willing to

join Olsen’s complaint [found at

http://www.iowamedicalmarijuana.org/petitions/dea.aspx].

Again, in 2010, Olsen contacted Gettman after the Iowa Board of Pharmacy

ruled unanimously that marijuana should be removed from schedule I. Olsen

asked Gettman to tell the Coalition members to get support for the petition to

reschedule from their State governments. Olsen asked Gettman to supplement the

record with: (1) the 2010 recommendation from the Iowa Board of Pharmacy to


www.iowamedicalmarijuana.org/petitions/pdfs/original-complaint-final.pdf

http://www.iowamedicalmarijuana.org/petitions/dea.aspx


remove marijuana from schedule I, (2) the November 10, 2009, resolution from the

American Medical Association recommending removal of marijuana from

schedule I, and (3) the May 2010 recommendation from the National Association

of Boards of Pharmacy supporting the removal of marijuana from schedule I.

Gettman again told Olsen that supplementing the record would cause further delay.

At that point, Olsen sent all of the Coalition members a letter asking that his name

be removed from the Coalition [found at:

http://www.iowamedicalmarijuana.org/States/pdfs/CannabisReschedulingCoalition

_20100814.pdf]. In his letter, Olsen wrote, “All of the coalition members have

either failed to seek state reclassification of marijuana under their own state’s

Uniform Controlled Substances Act and/or file civil actions in state courts

complaining of the failure of their own states to apply for federal rescheduling.”

So, to sum up, Olsen opposed this Petition for Writ of Mandamus because

Olsen wanted more time to find a state, possibly Iowa, to join the Coalition. Olsen

currently has a case pending against the state of Iowa, Olsen v. Iowa, No. CV8682,

Iowa District Court for Polk County, seeking to have marijuana removed from

schedule I because it no longer meets the legal requirement of having no accepted

medical use in treatment in the United States [found at

http://petition.iowamedicalmarijuana.org/Home/Court].


www.iowamedicalmarijuana.org/States/pdfs/CannabisReschedulingCoalition_20100814.pdf

www.iowamedicalmarijuana.org/States/pdfs/CannabisReschedulingCoalition_20100814.pdf

http://petition.iowamedicalmarijuana.org/Home/Court


FEDERALISM

It’s difficult to conceive how DEA arrived at the conclusion that marijuana

has no accepted medical use in treatment in the United States. See DEA Final

Ruling, 76 Fed. Reg. at 40579 (“Rather, the CSA expressly delegates the task of

making such findings – including whether a substance has any currently accepted

medical use in treatment in the United States – to the Attorney General. 21 U.S.C.

§ 811(a)”), citing Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1135

(D.C. Cir. 1994) (“upholding these factors as valid criteria for determining

‘accepted medical use’”). Context is of critical importance here, because when

Alliance for Cannabis Therapeutics v. DEA was decided in 1994 there were no

States that had accepted the medical use of marijuana. In the absence of any State

law accepting the medical use of marijuana, Congress gave the administrative

agency the right to make the judgment call. Alliance for Cannabis Therapeutics v.

DEA, 930 F.2d 936, 939 (D.C. Cir. 1991) (“The difficulty we find in petitioners’

argument is that neither the statute nor its legislative history precisely defines the

term ‘currently accepted medical use’; therefore, we are obliged to defer to the

Administrator’s interpretation of that phrase if reasonable”). Times change and

what was within DEA’s reasonable discretion in 1994 is not “reasonable” now in

the context of 16 State medical marijuana laws and the District of Columbia

explicitly authorizing the medical use of marijuana. See Gonzales v. Oregon, 546



U.S. 243, 258 (2006) (“The Attorney General has rulemaking power to fulfill his

duties under the CSA. The specific respects in which he is authorized to make

rules, however, instruct us that he is not authorized to make a rule declaring

illegitimate a medical standard for care and treatment of patients that is specifically

authorized under state law”).

On May 20, 2009, President Obama issued his Memorandum on

“Preemption”:

From our Nation’s founding, the American constitutional order has

been a Federal system, ensuring a strong role for both the national

Government and the States. The Federal Government’s role in

promoting the general welfare and guarding individual liberties is

critical, but State law and national law often operate concurrently to

provide independent safeguards for the public. Throughout our

history, State and local governments have frequently protected health,

safety, and the environment more aggressively than has the national

Government.

An understanding of the important role of State governments in our

Federal system is reflected in longstanding practices by executive

departments and agencies, which have shown respect for the

traditional prerogatives of the States. In recent years, however,

notwithstanding Executive Order 13132 of August 4, 1999

(Federalism), executive departments and agencies have sometimes

announced that their regulations preempt State law, including State

common law, without explicit preemption by the Congress or an

otherwise sufficient basis under applicable legal principles.

The purpose of this memorandum is to state the general policy of my

Administration that preemption of State law by executive departments

and agencies should be undertaken only with full consideration of the

legitimate prerogatives of the States and with a sufficient legal basis

for preemption. Executive departments and agencies should be

mindful that in our Federal system, the citizens of the several States



have distinctive circumstances and values, and that in many instances

it is appropriate for them to apply to themselves rules and principles

that reflect these circumstances and values. As Justice Brandeis

explained more than 70 years ago, “[i]t is one of the happy incidents

of the federal system that a single courageous state may, if its citizens

choose, serve as a laboratory; and try novel social and economic

experiments without risk to the rest of the country.”

Vol. 74, Fed. Reg., 24693 (Friday, May 22, 2009) [found at

http://www.iowamedicalmarijuana.org/States/pdfs/74fr24693.pdf]. See also

Gonzales v. Oregon, 546 U.S. 243, 269-70 (2006):

The statute and our case law amply support the conclusion that

Congress regulates medical practice insofar as it bars doctors from

using their prescription-writing powers as a means to engage in illicit

drug dealing and trafficking as conventionally understood. Beyond

this, however, the statute manifests no intent to regulate the practice

of medicine generally. The silence is understandable given the

structure and limitations of federalism, which allow the States “‘great

latitude under their police powers to legislate as to the protection of

the lives, limbs, health, comfort, and quiet of all persons.’”

Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S. Ct. 2240, 135 L.

Ed. 2d 700 (1996) (quoting Metropolitan Life Ins. Co. v.

Massachusetts, 471 U.S. 724, 756, 105 S. Ct. 2380, 85 L. Ed. 2d 728

(1985)).

And see Oregon v. Ashcroft, 368 F.3d 1118, 1124 (9th

Cir. 2004) (“[f]ederalism …

requires that state lawmakers, not the federal government, are ‘the primary

regulators of professional [medical] conduct.’ Conant v. Walters, 309 F.3d 629,

639 (9th Cir. 2002)”).

The concept [of federalism] does not mean blind deference to “States’

Rights” any more than it means centralization of control over every

important issue in our National Government and its courts. The

Framers rejected both these courses. What the concept does represent


www.iowamedicalmarijuana.org/States/pdfs/74fr24693.pdf


is a system in which there is sensitivity to the legitimate interests of

both State and National Governments, and in which the National

Government, anxious though it may be to vindicate and protect

federal rights and federal interests, always endeavors to do so in ways

that will not unduly interfere with the legitimate activities of the

States.

Id. at 1124.

DEPARTMENT OF JUSTICE MEMOS

On October 19, 2009, the U.S. Department of Justice issued a Memorandum

to United States Attorneys regarding “States Authorizing Medical Use of

Marijuana” [found at

http://www.iowamedicalmarijuana.org/States/pdfs/us_20091019_us_attorney.pdf].

The 2009 Memo states, “[p]riorities should not focus federal resources in your

States on individuals whose actions are in clear and unambiguous compliance with

existing state laws providing for the medical use of marijuana”. In response to the

significant increase in the number and size of medical marijuana production and

distribution facilities, on June 29, 2011, the U.S. Department of Justice issue

another Memorandum, but this one struck a slightly different tone, “Jurisdictions

Seeking to Authorize Marijuana for Medical Use” [found at

http://www.iowamedicalmarijuana.org/States/pdfs/us_20110629_us_attorney.pdf].

The 2011 Memo states, “There has, however, been an increase in the scope of

commercial cultivation, sale, distribution and use of marijuana for purported

medical purposes”. Clearly, it’s time for the U.S. Department of Justice to remind


www.iowamedicalmarijuana.org/States/pdfs/us_20091019_us_attorney.pdf

www.iowamedicalmarijuana.org/States/pdfs/us_20110629_us_attorney.pdf


the States of their duty to apply for federal reclassification of marijuana before this

conflict escalates any further.

STANDING

In his Motion to Intervene, Olsen questioned whether Coalition had standing

to appeal from a final DEA ruling. See Gettman v. DEA, 290 F.3d 430, 433 (D.C.

Cir. 2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L. Ed. 2d

351, 112 S. Ct. 2130 (1992)). Olsen does not question Coalition’s standing to

challenge DEA’s final ruling on whether it is arbitrary or capricious. See Petition

for Writ, at page17 (citing Brady Campaign to Prevent Gun Violence v. Salazar,

612 F.Supp.2d 1, 28 (D.D.C. 2009) (“Plaintiffs need not show that each plaintiff

has standing to assert every claim; rather, ‘if constitutional and prudential standing

can be shown for at least on plaintiff, [the court] need not consider the standing of

the other plaintiff’s to raise that claim’”)). However, Olsen still questions whether

any member of Coalition has standing to make a challenge based on state

sovereignty as explained in Gonzales v. Oregon, 546 U.S. 243 (2006). See Bond

v. United States, 564 U.S. ___,180 L.Ed.2d 269, 2011 U.S. LEXIS 4558, 22 Fla. L.

Weekly Fed. S 1156 (June 16, 2011) , Slip Op. at page 13 (“in some instances, the

result may be that a State is the only entity capable of demonstrating the requisite

injury”). None of Coalition’s members have taken any action against the States

they live in to force their States to apply for federal rescheduling. Does that failure



deprive them of standing to claim state sovereignty absent the States or their

officers? Olsen is not sure.

The issue presented in this case, should not be determined on the basis of

information presented by the Coalition in 2002 and evaluated by the Secretary in

2006. The record is stale and the rights of tens, if not hundreds of thousands of

Americans using marijuana for medical purposes pursuant to laws in sixteen states

and the District of Columbia are affected by the outcome here.

UNREASONABLE DELAY

For the sake of argument, a delay of over four years between the

recommendation of the Secretary of Health and Human Services (“Secretary”

hereafter) on December 6, 2006, and the final ruling of DEA’s Administrator

(“Administrator” hereafter) on June 21, 2011, is unreasonable. See

Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir.

1984) (citing, MCI Telecommunications Corp. v. FCC, 627 F.2d 322, 340-41 (D.C.

Cir. 1980)). In addition, a delay of over eight years between the filing of the

original Petition for Rescheduling on October 9, 2002, and the Administrator’s

final ruling on June 21, 2011, is unreasonable in light of the fact that 16 States and

the District of Columbia (with Congressional consent) have enacted laws

recognizing marijuana as medicine. See Grinspoon v. DEA, 828 F.2d 881, 886 (1st

Cir. 1987) (“Congress did not intend ‘accepted medical use in treatment in the



United States’ to require a finding of recognized medical use in every state or, as

the Administrator contends, approval for interstate marketing of the substance”).

While the Petition to Reschedule Cannabis has been dragging on, the

number of States accepting the medical use of marijuana has doubled and the

District of Columbia has accepted the medical use of marijuana with Congressional

approval. Yet, DEA only mentions the original 8 States that had accepted medical

use of marijuana as of 2002. See 76 Fed. Reg. at 40578. DEA cherry picks

information as current as March 4, 2011 to support its lopsided opinion. See 76

Fed. Reg. at 40572. By contrast, the Iowa Board of Pharmacy took evidence from

anyone between August and November of 2009, and reached the unanimous

conclusion that marijuana is medicine in February of 2010. Congress didn’t make

a mistake when it left the decision on accepted medical use with the States. See

Bond v. United States, supra, Slip Op. at page 9 (“It allows States to respond,

through the enactment of positive law, to the initiative of those who seek a voice in

shaping the destiny of their own times without having to rely solely upon the

political processes that control a remote central power”).

NEWER EVIDENCE MISSING FROM THE RECORD

A lot has happened over the course of the past nine years since the Petition

to Reschedule Cannabis was filed.



1. In 2003, the Secretary took out a patent on the extraction of natural

cannabinoids from marijuana. U.S. Patent No. 6,630,507 B1 (Oct. 7, 2003).

[found at http://www.iowamedicalmarijuana.org/pdfs/06630507_1.pdf].

This shows that cannabis has at least as much accepted medical use as plants

currently in schedule II, such as coca plants and opium plants.

2. In 2007, the Administrator proposed a rule transferring naturally extracted

delta-9-THC from schedule I to schedule III, again, showing that cannabis

has at least as much accepted medical use as plants currently in schedule II,

such as coca plants and opium poppies. See 72 Fed. Reg. 54226 [found at

http://www.iowamedicalmarijuana.org/pdfs/72fr54226.pdf].

3. In 2009, the American Medical Association recommended that marijuana be

removed from schedule I. On page 1, Executive Summary: “The future of

cannabinoid-based medicine lies in the rapidly evolving field of botanical

drug substance development, as well as the design of molecules that target

various aspects of the endocannabinoid system. To the extent that

rescheduling marijuana out of Schedule I will benefit this effort, such a

move can be supported.” [found at

http://www.iowamedicalmarijuana.org/petitions/pdfs/ama_report_20091110.

pdf].


www.iowamedicalmarijuana.org/pdfs/06630507_1.pdf

www.iowamedicalmarijuana.org/pdfs/72fr54226.pdf

www.iowamedicalmarijuana.org/petitions/pdfs/ama_report_20091110.pdf

www.iowamedicalmarijuana.org/petitions/pdfs/ama_report_20091110.pdf


4. In 2010, the Iowa Board of Pharmacy concluded unanimously that marijuana

should be transferred from schedule I to schedule II. [found at

http://petition.iowamedicalmarijuana.org/pdf/ibpe_20110206_exhibit_03.pdf

]

5. In 2010, the National Association of Boards of Pharmacy gave the Iowa

Board of Pharmacy an award for recommending the reclassification of

marijuana. [found at

http://petition.iowamedicalmarijuana.org/pdf/ibpe_20101012_exhibit_19.pdf

]

6. As of July 8, 2011, the National Cancer Institute reports that studies suggest

that cannabinoids may have a protective effect against the development of

certain types of tumors. [found at

http://www.cancer.gov/cancertopics/pdq/cam/cannabis/healthprofessional/pa

ge4]

These are just a few of the developments that have occurred since the Petition for

Rescheduling was filed in 2002, and not considered by the Secretary in 2006 or by

DEA in 2011.

REMAND IS JUSTIFIED

This Court has the power to “compel agency action unlawfully withheld or

unreasonably delayed”. 5 U.S.C. § 706(1).


petition.iowamedicalmarijuana.org/pdf/ibpe_20110206_exhibit_03.pdf




http://www.cancer.gov/cancertopics/pdq/cam/cannabis/healthprofessional/page4

http://www.cancer.gov/cancertopics/pdq/cam/cannabis/healthprofessional/page4


In a prior case similar to this one, this Court remanded a marijuana

rescheduling petition to DEA, National Organization for the Reform of Marijuana

Laws (NORML) v. DEA, No. 79-1660 (D.C. Cir., October 16, 1980, unpublished

decision), 1980 U.S. App. LEXIS 13099:

This cause came on to be heard on a petition for review of an order of

the Drug Enforcement Administration, briefs and other pleadings,

including a motion for partial remand, were filed by the parties, and

the case was called for oral argument. Counsel for the parties were

asked to address the Court as to the present status of this case and did

so. In view of respondents' motion for partial remand of this case to

the Drug Enforcement Administration, this Court finds, sua sponte,

that reconsideration of all the issues in this case would be appropriate.

Upon consideration of the foregoing, it is

ORDERED AND ADJUDGED, by this Court, that this case be

remanded in its entirety to the Drug Enforcement Administration. It is

FURTHER ORDERED, that the Drug Enforcement Administration

refer all the substances at issue to the Department of Health and

Human Resources for that Department's scientific and medical

findings and recommendations on scheduling, as provided by 21

U.S.C. § 811(b) (1976). These proceedings shall take into account

new evidence concerning medical use of the substances at issue, and

shall be consistent with both this order and the prior decisions of this

Court in National Organization for the Reform of Marijuana Laws v.

Drug Enforcement Administration, 182 U.S. App. D.C. 114, 559 F.2d

735 (D.C. Cir. 1977), and National Organization for the Reform of

Marijuana Laws v. Ingersoll, 162 U.S. App. D.C. 67, 497 F.2d 654

(D.C. Cir. 1974). We regrettably find it necessary to remind

respondents of an agency’s obligation on remand not to “do anything

which is contrary to either the letter or spirit of the mandate construed

in the light of the opinion of [the] court deciding the case.” City of

Cleveland v. Federal Power Commission, 182 U.S. App. D.C. 346,

561 F.2d 344, 346 (D.C. Cir. 1977) (quoting Yablonski v. UMW, 147

U.S. App. D.C. 193, 454 F.2d 1036, 1038 (D.C. Cir. 1971), cert.

denied, 406 U.S. 906, 31 L. Ed. 2d 816, 92 S. Ct. 1609 (1972).



In 1988 this Court, sua sponte (on its own motion), remanded Olsen’s case

to the DEA to allow Olsen to supplement the record. Olsen v. DEA, 878 F.2d

1458, 1459-60 (D.C. Cir. 1989):

In an effort to prompt a response from the DEA, Olsen unsuccessfully

sued in the Eleventh Circuit to compel agency action. Olsen v. DEA,

776 F.2d 267 (11th Cir. 1985) (affirming district court's dismissal of

Olsen's complaint), cert. denied, 475 U.S. 1030, 106 S. Ct. 1236, 89

L. Ed. 2d 344 (1986). Thereafter, in January 1986, Olsen petitioned

the U.S. District Court for the District of Columbia for a writ of

mandamus, and that court, in March 1986, directed the DEA to show

cause why the writ should not issue. In April 1986, in a three-

paragraph letter ruling, the DEA denied Olsen's petitions; the letter

reported the DEA’s conclusion that “the immensity of the marijuana

abuse problem,” and the correspondingly “compelling governmental

interest” in controlling trafficking in and use of the substance,

“outweighed” the church’s interest in access to marijuana. Letter

from John C. Lawn, DEA Administrator, to Carl Eric Olsen (Apr. 22,

1986). The district court then dismissed Olsen’s mandamus petition

as moot.

Olsen, acting pro se, both petitioned this court for review of the

DEA’s decision, and appealed from the district court’s dismissal of

his mandamus petition. In February 1988, this court, on its own

motion, directed appointment of members of the law firm of Hogan

and Hartson to serve as amicus curiae “to address those issues raised

by [Olsen] and any other issues appropriate for the court’s

consideration in this case.” [Footnote Omitted] After amicus filed a

brief, the DEA moved to remand the matter for renewed agency

consideration. In April 1988, we authorized further agency

proceedings and instructed the DEA to supplement the record and

return it with a final order by July 29, 1988.

Olsen appreciated the careful diligence the Court took in his case. Now,

particularly where the rights of tens, if not hundreds of thousands of seriously ill



and injured people are at stake, extraordinary care is needed. Any decision should

be based on the most current scientific knowledge, not just the record presented to

DEA in 2002.

Olsen notes that this Court approved remand rather than mandamus in

Telecommunications Research & Action Center v. FCC (“TRAC”), 750 F.2d 70,

78 (D.C. Cir. 1984) (citing FCC v. ITT World Communications, Inc., 466 U.S. 463,

469 (1984) (“If, however, the Court of Appeals finds that the administrative record

is inadequate, it may remand to the agency …”)).

As this Court found in TRAC, “these delays are serious enough for us to

retain jurisdiction over this case until final agency disposition,” 750 F.2d at 80.

Serious delays have taken place here. Coalition’s Petition for Mandamus says

DEA knew what the final ruling would be in 2006. See pages 14, 19, 20-21, and

24 (“DEA has issued its final determination, on average, within six months after it

receives the HHS evaluation”) of the Coalition’s Petition. DEA’s sudden ruling at

this particular moment, while this Court is consideration the Petition for

Mandamus, is suspicious. DEA can say it is just doing what the petitioners have

requested, but the timing is suspect. The record is inadequate to protect the rights

of tens, if not hundreds of thousands of citizens using marijuana lawfully under

state laws because developments in science and law have developed rapidly over

the past 8 years.



DEFECTS IN PETITION FOR MANDAMUS

Coalition has asked this Court to force a response to a rescheduling petition

that is over 8 years old. The evaluation by the Secretary is now over 4 years old.

The current state of scientific knowledge regarding cannabis has significantly

grown over the past 8 years.

Coalition has not explained why none of its members have filed actions

against their own states for failure to join the petition for rescheduling, but have

gone ahead and made an argument based on state sovereignty which it is uncertain

as to whether they have standing to make.

DEA should consider the welfare of all the people in the United States, not

just the limited record offered by Coalition. Coalition should not be asking DEA

to rule on such a limited record.

DEA should actively request input from the 16 States that have enacted

medical marijuana laws. These 16 States have enacted laws defining marijuana as

medicine. Do these 16 States think marijuana is medicine under state law but not

under federal law? It defies logic to think the term “medical use” has a different

meaning under state law than it has under federal law. Has this inconsistency been

overlooked by Coalition? If Coalition can file a civil action in federal court, are

Coalition members incapable of filing civil actions in State courts to force their

States to apply for federal rescheduling? Do Coalition members think they have



standing to argue on behalf of their States without making the effort to get their

States to join in the Petition for Rescheduling Cannabis?

Coalition is not adequately representing patients who deserve to have an

adequate record presented to DEA.

CONCLUSION

For the foregoing reasons, Olsen request that this Court retain jurisdiction of

this case, remand to DEA for further consideration of the most current scientific

information, and order DEA to poll the States that have enacted medical marijuana

laws and ask them to address the issue of federal scheduling.

Dated: July 23, 2011

Respectfully submitted,

/s/ Carl Olsen

Carl Olsen, Pro Se

130 East Aurora Avenue

Des Moines, IA 50313-3654

515-288-5798 home phone

515-343-9933 cell phone



CERTIFICATE OF SERVICE

I hereby certify that on July 23, 2011, the foregoing was served on the

following individuals via ECF/electronic filing:

Joseph David Elford

Americans for Safe Access

1322 Webster Street

Suite 402

Oakland, CA 94612

Robert Evans Kopp

Melissa Nicole Patterson

Mark B. Stern

U.S. Department of Justice

(DOJ) Civil Division, Appellate Staff

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

The foregoing was served on the following individuals by U.S. Mail:

Michael John Kennedy

Law Offices of Michael Kennedy

425 Park Avenue

26th. Floor

New York, NY 10022-0000

David C. Holland

The Law Offices of David C Holland PC

419 Park Avenue South

New York City 10016-8410

Dated: July 23, 2011

Respectfully submitted,

/s/ Carl Olsen

Carl Olsen


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