On May 30, 2019, the Court of Appeals for the Second Circuit in Washington v. Barr,[1] refused to dismiss outright a case where the plaintiffs alleged marijuana’s classification on the Drug Enforcement Agency (DEA)’s Schedule I list of the Controlled Substance Act (CSA) of the poses a “serious, life-of-death threat to their health.” The Second Circuit panel, in a majority opinion written by Judge Calabresi, did not address the merits of the plaintiffs’ claims. Instead, the panel unusually held, on procedurally grounds, that while the case is not dismissed, because of the immediate health issues involved with several of the plaintiffs, in order to expedite administrative review, the majority held the proceedings in abeyance in order to ensure DEA action with “adequate dispatch.” In other words, the case was not dismissed, like it was by the district court. While the panel agreed with the district court that all administrative steps were not pursued as required by federal statute, it noted:
[W]e are troubled by the uncertainty under which Plaintiffs must currently live. Plaintiffs claim that marijuana has extended their lives, cured seizures, and made pain manageable. If true, these are no small things. Plaintiffs should not be required to live indefinitely with uncertainty about their access to allegedly life-saving medication or live in fear that pursuing such medical treatment may subject them or their loved ones to devastating consequences.
And it further noted:
Courts have [] on occasion deemed it proper to encourage prompt decisionmaking. Thus, where agencies have a history of dilatory proceedings, federal courts have sometimes retained jurisdiction of related cases to facilitate swift review . . . . [W]e exercise our discretion to keep jurisdiction of the case in this panel, to take up whatever acation may become appropriate if Plaintiffs seek administrative review and the DEA fails to act promptly.
The majority had caveats when it retained jurisdiction over the case. First, it did not issue a writ of mandate ordering the DEA to act, i.e., reclassify marijuana from Schedule I. Second, the majority refused to retain jurisdiction indefinitely, requiring the plaintiffs to seek DEA review of marijuana’s Schedule I classification within six months (i.e., November 30, 2019). If plaintiffs fail to do so within this timeframe, the district court judgment would be affirmed and the case dismissed accordingly.
There was a dissent filed by Judge Jacobs. He disagreed with the holding in abeyance, and agreed that the case should be dismissed because plaintiffs had not yet fully exhausted their administrative review options before seeking relief in the courts.
The significance of the ruling on IP is that a federal appeals court is now using its judicial discretion to prod the DEA to review whether marijuana should be declassified from the Schedule I list. Removing marijuana from Schedule I would probably facilitate more cannabis-focused trademark and service mark registrations with the U.S. Patent and Trademark Office (USPTO), because the registration bar would be lifted on using marks in commerce on federally-illegal substances. Notwithstanding, the USPTO has recently issued new guidelines to register cannabidiol (CBD)-related marks, in light of the recently passed Farm Bill, which legalized hemp. However, these guidelines only relate to a specific subset of cannabis goods and services. USPTO policy has long been to refuse trademark registration to marks directed to federally illegal substances, like marijuana, and until marijuana is reclassified from Schedule I, this policy will remain in place.
We will update the blog with developments in this case as it is warrants.
[1] ___F.3d___ (2d Cir. 2019), aff’d-in-part, rev’d-in-part, held in abeyance, Washington v. Sessions, Case No. 17 Civ. 5625 (AKH) (S.D.N.Y. Feb. 26, 2018).