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Tampa Florida Criminal Defense Lawyer notes a recent Search and seizure case involving a Residence and a Search Warrant. The Second District Court ruled that the protective sweep of the possession of marijuana defendant's residence was improper. The court noted no basis for concern that drug evidence might be destroyed before a search warrant could be obtained.
Marijuana Search - Safety Sweep
The appeals court also found no facts to support a reasonable belief that there was a person in the residence who could pose a danger to law enforcement. The observation of narcotics by officers during an improper protective sweep cannot be a valid basis for issuance of search warrant, even so, since the officers smelled marijuana when the suspect opened front door after officers had lawfully approached residence and knocked on front door, probable cause for issuance of warrant was found.
When the court finds that police unlawfully obtained some of evidence contained in an affidavit or application for a search warrant, the trial court must then determine if there was probable cause to support issuance of warrant based on any independent and lawfully obtained evidence. The trial court committed error in granting the motion to suppress because probable cause for issuance of warrant was established without considering evidence obtained in improper protective sweep.
"[T]he sweep of the house was improper based on the concern that evidence may be destroyed because there were no facts supporting an objectively reasonable basis for the belief that someone inside the house could destroy evidence while the warrant was being obtained. See United States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987) ("In determining whether the agents reasonably feared imminent destruction of the evidence, the appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured.")."
"[T]here was no evidence that the house was occupied, the trial court correctly found that the protective sweep of the house for officer safety was improper as there were no specific and articulable facts supporting a reasonable belief that there was an individual in the house who could pose a danger to law enforcement. See Maryland v. Buie, 494 U.S. 325, 337 (1990) ("The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.")."
"Where a court finds that police unlawfully obtained some of the evidence contained in the application for the
search warrant, the court must then determine if there is probable cause to support the issuance of the warrant based on any independent and lawfully obtained evidence. Id. “[T]he court must excise the invalid allegations from the affidavit and determine whether sufficient valid allegations remain to support a finding of probable cause.” State v. Hood, 68 So. 3d 392, 395 (Fla. 2d DCA 2011)."
Source: STATE OF FLORIDA, v. IDALIA ROMAN Case No. 2D11-769 (Fla 2d DCA Nov. 7 2012).
Marijuana Defense Attorney just read a Federal Appeals Court ruling that threw several roadblocks on the path to legalization. Marijuana continues to be scheduled as a highly dangerous drug under federal law. That means under the United States Code, there are no accepted medical uses. Below is the full text of an appeals court ruling that refused to order a change in the government's drug classification schedule. Americans for Safe Access, contended that the Drug Enforcement Administration had a legal duty to review medical evidence and reclassify marijuana. The Court of Appeals rejected that claim.
Download a courtesy copy of the Marijuana Opinion here:
"There is a serious debate in the United States over the efficacy of marijuana for medicinal uses. Although marijuana has been legalized in a number of states, it is classified as a “Schedule I” drug by the Drug Enforcement Administration (“DEA”), pursuant to its authority under the Controlled Substances Act of 1970 (“CSA” or “Act”). The DEA has maintained this listing because it has determined that marijuana “has no currently accepted medical use in treatment in the United States.” 21 U.S.C. § 812(b)(1)(B). Because Schedule I is the most restricted drug classification under the CSA, the production, sale, and use of marijuana are largely banned by federal law. Petitioners in this case – Americans for Safe Access, the Coalition to Reschedule Cannabis, Patients Out of Time, and several individuals – challenge DEA’s denial of its petition to initiate proceedings to reschedule marijuana."
"Petitioners claim that “[n]umerous peer-reviewed scientific studies demonstrate that marijuana is effective in treating various medical conditions, but the DEA simply ignores them to conclude that marijuana should remain in Schedule I.” Pet’rs’ Br. at 20. Petitioners thus contend that the DEA’s denial of their petition was arbitrary and capricious and ask this court to remand the case to the agency for further consideration."
"Moreover, the existence of a medical necessity defense for marijuana cultivation is tenuous at best. The petitioners assert that marijuana’s Schedule I status is the only thing preventing courts from recognizing the defense, citing United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001), which held that no medical necessity defense exists for the illegal distribution of various controlled substances, including marijuana, because the CSA “reflects a determination that marijuana has no medical benefits worthy of an exception.”
"The DEA’s construction of its regulation is eminently reasonable. Therefore, we areobliged to defer to theagency’s interpretation of “adequate and well-controlled studies.”See Thomas Jefferson Univ., 512 U.S. at 512 (deferring to “an agency’s interpretation of its own regulations”). Judged against the DEA’s standard, we find nothing in the record that could move us to conclude that the agency failed to prove by substantial evidence that such studies confirming marijuana’s medical efficacy do not exist."
"Finally, Petitioners suggested during oral argument that the Government had foreclosed the research that would be necessary to create sufficiently reliable clinical studies of marijuana’s medical efficacy. Because Petitioners did not properly raise this issue with the DEA and there is nothing in the record to support it, we do not consider it here. We note, however, that DHHS’ recommendation explained that “[t]he opportunity for scientists to conduct clinical research with marijuana exists under the [D]HHS policy supporting clinical research with botanical marijuana.”Denial, 76 Fed. Reg. at 40,562. Thus, it appears that adequate and well-controlled studies are wanting not because they have been foreclosed but because they have not been completed."
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA
Argued October 16, 2012 Decided January 22, 2013
AMERICANS FOR SAFE ACCESS, ET AL., PETITIONERS
DRUG ENFORCEMENT ADMINISTRATION, RESPONDENT
CARL ERIC OLSEN, INTERVENOR
EDWARDS, Senior Circuit Judge:
There is a serious debate in the United States over the efficacy of marijuana
for medicinal uses. Although marijuana has been legalized in a number of
states, it is classified as a “Schedule I” drug by the Drug Enforcement
Administration (“DEA”), pursuant to its authority under the Controlled
Substances Act of 1970 (“CSA” or “Act”). The DEA has maintained this listing
because it has determined that marijuana “has no currently accepted medical use
in treatment in the United States.” 21
U.S.C. § 812(b)(1)(B).
Because Schedule I is the most restricted drug classification under the CSA,
the production, sale, and use of marijuana are largely banned by federal law.
Petitioners in this case – Americans for Safe Access, the Coalition to
Reschedule Cannabis, Patients Out of Time, and several individuals – challenge
DEA’s denial of its petition to initiate proceedings to reschedule marijuana.
The CSA permits the DEA to
reclassify drugs to less restrictive schedules according to various statutory
criteria, and interested parties can petition the DEA for such action. See 21
U.S.C. §§ 811, 812. In October 2002, the Coalition to Reschedule Cannabis
petitioned the DEA to reschedule marijuana as a Schedule III, IV, or V drug. See
Denial of Petition to Initiate Proceedings to Reschedule Marijuana (“Denial”),
76 Fed. Reg. 40,552, 40,552 (July 8, 2011). The DEA denied the petition on July
8, 2011, finding that “[t]here is no currently accepted medical use for
marijuana in the United States,” and that “[t]he limited existing clinical
evidence is not adequate to warrant rescheduling of marijuana under the CSA.” Id.
at 40,552, 40,567. On July 22, 2011, Petitioners filed a timely petition
for review of the DEA action.
Petitioners claim that
“[n]umerous peer-reviewed scientific studies demonstrate that marijuana is
effective in treating various medical conditions, but the DEA simply ignores
them to conclude that marijuana should remain in Schedule I.” Pet’rs’ Br. at
20. Petitioners thus contend that the DEA’s denial of their petition was
arbitrary and capricious and ask this court to remand the case to the agency
for further consideration.
The Government, in turn,
argues that we should dismiss the petition for review on jurisdictional grounds
because Petitioners and Intervenor lack Article III standing. The Government
also asserts that, even if the court determines that Petitioners or Intervenor
have standing, the petition for review should be denied on the merits.
According to the Government, in the record reviewed by the DEA, “there was no
available evidence of adequate, well-controlled studies demonstrating
marijuana’s safety and effectiveness as a medicine and no consensus among
experts as to these issues. The enactment of state laws allowing the use of
marijuana for medical purposes did not constitute the required science-based
evidence.” Br. for Resp’t at 23.
We deny the Government’s
jurisdictional challenge because we find that at least one of the named
Petitioners, Michael Krawitz, has standing to challenge the agency’s action.
Krawitz, who is a disabled veteran, is entitled to medical care through the
U.S. Department of Veterans Affairs (“VA”). Krawitz has suffered injury-in-fact
because he must shoulder a financial cost for services he could otherwise
obtain free of charge from the VA. There is a causal connection between the
DEA’s continuing decision to classify marijuana as a Schedule I drug and the
VA’s policy of refusing to provide referrals for state medical marijuana
programs. And a favorable decision from this court would likely redress
Krawitz’s injury because, if the DEA rescheduled marijuana, the VA could no
longer use the CSA to justify its policy of refusing to complete medical
marijuana referral forms. Krawitz thus satisfies the requirements of Article
III standing. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992).
On the merits, the question
before the court is not whether marijuana could have some medical benefits.
Rather, the limited question that we address is whether the DEA’s decision
declining to initiate proceedings to reschedule marijuana under the CSA was
arbitrary and capricious. These questions are not coterminous. “The scope of
review under the ‘arbitrary and capricious’ standard is narrow and a court is
not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs.
Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). On the record before us, we hold that the DEA’s denial of the
rescheduling petition survives review under the deferential arbitrary and
capricious standard. The petition asks the DEA to reclassify marijuana as a
Schedule III, IV, or V drug, which, under the terms of the CSA, requires a
“currently accepted medical use.” The DEA’s regulations, which we approved in Alliance
for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), define
“currently accepted medical use” to require, inter alia, “adequate and
well-controlled studies proving efficacy.” Id. at 1135. We defer to the
agency’s interpretation of these regulations and find that substantial evidence
supports its determination that such studies do not exist.
A. The Controlled Substances Act
We have previously described
marijuana’s listing as a Schedule I drug under the CSA as follows:
The [CSA] places hazardous
drugs in five categories, or schedules, which impose varying restrictions on
access to the drugs. See 21 U.S.C. § 812 (1988). Marijuana is assigned
by statute to Schedule I, the most restrictive of these. Schedule I drugs may
be obtained and used lawfully only by doctors who submit a detailed research
protocol for approval by the Food and Drug Administration and who agree to
abide by strict recordkeeping and storage rules.
The CSA allows the Attorney
General to reschedule a drug if he finds that it does not meet the criteria for
the schedule to which it has been assigned. 21 U.S.C. § 811(a). The Attorney
General has delegated this authority to the [DEA] Administrator. In
rescheduling a drug, the Administrator must consider, inter alia,
“[s]cientific evidence of [the drug’s] pharmacological effect, if known,” and
“[t]he state of current scientific knowledge regarding the drug or other
U.S.C. § 811(c)(2), (3).
A drug is placed in Schedule
I if (1) it “has a high potential for abuse,” (2) it has “no currently
accepted medical use in treatment in the United States,” and (3) “[t]here
is a lack of accepted safety for use of the drug . . . under medical
supervision.” 21 U.S.C. § 812(b)(1) (1988) (emphasis added).
Alliance for Cannabis Therapeutics, 15 F.3d at 1133.
A criterion for Schedule III,
IV, and V drugs is the existence of “a currently accepted medical use in
treatment in the United States.” 21 U.S.C. § 812(b)(3)-(5). To assess whether
there is a “currently accepted medical use,” the DEA looks for five necessary
elements: “(1) The drug’s chemistry must be known and reproducible; (2) There
must be adequate safety studies; (3) There must be adequate and well-controlled
studies proving efficacy; (4) The drug must be accepted by qualified experts;
and (5) The scientific evidence must be widely available.” See Denial,
76 Fed. Reg. at 40,579. Unlike Schedule I drugs, federal law permits
individuals to obtain Schedule II, III, IV, or V drugs for personal medical use
with a valid prescription. See 21 U.S.C. § 829(a)-(c).
Under the CSA, “any
interested party” may petition the DEA to reschedule a drug. 21 U.S.C. §
811(a). In reaching a final scheduling decision, the DEA must request from the
Department of Health & Human Services (“DHHS”)a “scientific and medical
evaluation,” as well as a recommendation for the drug’s appropriate schedule.
U.S.C. § 811(b). These recommendations
are binding on the DEA insofar as they rest on scientific and medical
B. Procedural History
As noted above, Petitioners
in this case include three advocacy organizations and several individuals. On
September 1, 2011, Carl Olsen intervened on behalf of Petitioners. He asserts a
religious interest in the use of marijuana.
On October 9, 2002, the Coalition
to Reschedule Cannabis petitioned the DEA to reschedule marijuana as a Schedule
III, IV, or V drug. See Petition to Reschedule Cannabis (Marijuana), reprinted
in Joint Appendix (“J.A.”)
46-162. Petitioners assert
that marijuana’s Schedule I status is inappropriate because, inter alia,
it “has an accepted medical use in the United States.” The petition to
reschedule supported this assertion with citations to alleged peer-reviewed,
published studies on the potential medical applications of marijuana. See,
e.g., id. at 38-56, reprinted in J.A. 86-104. The DEA
submitted Petitioner’s rescheduling request to DHHS. Denial, 76 Fed.
Reg. at 40,552.
In its scientific and medical
evaluation, DHHS concluded that marijuana lacks a currently accepted medical use
in the United States. In reaching this conclusion, DHHS applied the DEA’s
established five-prong test, which requires a known and reproducible drug
chemistry, adequate safety studies, adequate and well-controlled studies
demonstrating efficacy, acceptance of the drug by qualified experts, and widely
available scientific evidence. See id. at 40,559-60. DHHS stated that
there are approximately 483 known components of the cannabis plant. Id. at
40,554. The components include 66 compounds called cannabinoids, and marijuana
is the only plant in which these compounds are known to exist. Id. DHHS
stated, however, that marijuana’s chemistry was not “known and reproducible” as
there had not been “a complete scientific analysis” of its components. Id. at
40,552, 40,560. In addition, although there was ongoing research, there were no
studies of sufficient quality to assess “the efficacy and full safety profile
of marijuana for any medical condition.” Id. at 40,560. Further, there
was “a material conflict of opinion among experts” as to medical safety and
efficacy, thereby precluding a finding that qualified experts accepted
marijuana as a medicine. Id. Additionally, the raw research data
typically were not available in a format that would allow “adequate scientific
scrutiny of whether the data demonstrate safety or efficacy.” Id.
DHHS gave the DEA its
evaluation and scheduling recommendation on December 6, 2006. See id. at
40,552-66. The DEA subsequently denied the petition to reschedule on July 8,
2011, finding that “[t]he limited existing clinical evidence is not adequate to
warrant rescheduling of marijuana under the CSA.” Id. at 40,567.
On July 22, 2011, Petitioners
filed a timely petition for review of the DEA’s decision. Petitioners argue
that the DEA acted arbitrarily and capriciously when it concluded that
marijuana lacks a “currently accepted medical use” and has a “high potential
for abuse.” They ask this court to remand the case to the DEA for
reconsideration of its decision. The Government contests these assertions and
responds further that Petitioners, for various reasons, lack standing to
challenge the DEA’s determination in court.
After oral argument, “mindful
of our independent obligation to be sure of our jurisdiction,” we requested
supplemental filings on Petitioners’ standing. Sierra Club v. EPA, 292
F.3d 895, 898 (D.C. Cir. 2002); see also Am. Library Ass’n v. FCC, 401
F.3d 489, 492, 496 (D.C. Cir. 2005) (requesting supplemental filings on
standing where the parties reasonably believed that the initial filings had
sufficiently addressed the issue).
“To satisfy the requirements
of Article III standing in a case challenging government action, a party must
allege an injury in fact that is fairly traceable to the challenged government
action, and ‘it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.’” Nat’l Wrestling Coaches
Ass’n v. U.S.
Dep’t of Educ., 366 F.3d 930, 937 (D.C. Cir. 2004) (quoting Defenders of
Wildlife, 504 U.S. at 560-61). Petitioners have advanced several theories
of standing in this case for each of the various parties. However, to proceed
to the merits of their claims, we need only find one party with standing. See
v. U.S. Dep’t of Health and Human Servs., 271 F.3d 301, 310
(D.C. Cir. 2001) (declining
to address standing of remaining appellants after finding one appellant with
standing). Because we conclude that petitioner Michael Krawitz has individual
standing, we need not address the issue for the other Petitioners.
1. Petitioners’ Burden of
Before seeking review in this
court, Petitioners were under no obligation to establish Article III standing. See
Pfizer Inc. v. Shalala, 182 F.3d 975, 980 (D.C. Cir. 1999) (“An
administrative agency, which is not subject to Article III of the Constitution
of the United States and related prudential limitations, may issue a
declaratory order in mere anticipation of a controversy or simply to resolve an
uncertainty.”). However, when a federal court of appeals reviews an agency
action, Article III standing must be demonstrated “as it would be if such
review were conducted in the first instance by the district court.” Sierra
Club, 292 F.3d at 899.
A “petitioner’s burden of
production in the court of appeals is accordingly the same as that of a
plaintiff moving for summary judgment in the district court: it must support
each element of its claim to standing ‘by affidavit or other evidence.’” Id.
(quoting Defenders of Wildlife, 504 U.S. at 561). “Its burden of
proof is to show a ‘substantial probability’ that it has been injured, that the
defendant caused its injury, and that the court could redress that injury.” Id.
(quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.
Cir. 2000)). “In assessing
[Petitioners’] standing, we must assume they will prevail on the merits of
their claims.” NB ex rel. Peacock v. District of Columbia, 682 F.3d 77,
82 (D.C. Cir. 2012).
If the parties reasonably,
but mistakenly, believed that the initial filings before the court had
sufficiently demonstrated standing, the court may – as it did here, see Order,
Oct. 16, 2012 – request supplemental affidavits and briefing to determine
whether the parties have met the requirements for standing. See, e.g., Pub.
Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279,
1296-97 (D.C. Cir. 2007) (noting that it was “prudent” for the court to seek
supplemental submissions where there was a question about standing); Am.
Library Ass’n, 401 F.3d at 492, 496. Petitioners submitted supplemental
filings on October 25, 2012, offering factual information in support of
Krawitz’s standing. See generally Supp. Krawitz Aff; Pet’rs’ Supp. Br.
The Government was afforded an opportunity to respond to Petitioners’ supplemental
filing and did so on November 1, 2012.
The dissenting opinion argues
that we should decline to consider Petitioners’ supplemental filings because
they allegedly rest on a new theory of standing and, thus, violate the commands
of Circuit Rule 28(a)(7) and, relatedly, Sierra Club and its progeny. We
Circuit Rule 28(a)(7) states:
In cases involving direct
review in this court of administrative actions, the brief of the appellant or
petitioner must set forth the basis for the claim of standing. . . . When the
appellant’s or petitioner's standing is not apparent from the administrative
record, the brief must include arguments and evidence establishing the claim of
D.C. CIR. R. 28(a)(7). In this case,
Petitioners obviously made a serious effort to satisfy the requirements of the
rule by setting forth their evidence and arguments in support of standing in
their opening brief to the court. See Pet’rs’ Br. at 5-7. In addition,
Circuit Rule 28(a)(7) does not itself impose any jurisdictional requirements.
So even assuming, arguendo, that Petitioners failed to adhere to the
briefing requirements of the rule – which has not been shown in this case –
this would not compel sua sponte dismissal by the court.
Because the briefing
requirements of Circuit Rule 28(a)(7) are not jurisdictional, they have no
relevance here unless the Government raised a viable objection pursuant to the
rule. The Government raised no such objection to Petitioners’ opening brief to
the court. Likewise, in its response to Petitioners’ supplemental filings, the
Government did not contend that Petitioners had infringed Circuit Rule 28(a)(7)
or Sierra Club and its progeny. Rather, the Government merely noted that
Petitioners’ supplemental filings stated, “for the first time, that [Krawitz]
participates in the ‘Oregon Medical Marijuana Program.’” Supp. Br. for Resp’t
at 1. The Government did not “protest that Krawitz raised a new standing
theory,” as the dissenting opinion argues. Nor did the Government claim that
Petitioners’ supplemental submissions on standing should not be addressed by
the court because they failed to satisfy the requirements of Circuit Rule
28(a)(7) or the controlling law of the circuit. Indeed, the Government did not
even suggest that it was disadvantaged in the adversarial process because of
the nature of Petitioners’ supplemental filings. See Sierra Club, 292
F.3d at 901. TheGovernment’s arguments inresponse to Petitioners’ supplemental
filings focused on its claim that Petitioners had failed to demonstrate
Krawitz’s Article III standing.
Although Petitioners made a
reasonable effort to satisfy the command of Circuit Rule 28(a)(7) in their
opening brief by advancing evidence and arguments in support of standing, the
court still had questions regarding whether the facts asserted by Petitioners
were sufficient to satisfy the requirements of Article III standing. Therefore,
the panel majority, adhering to well-established circuit law, requested
supplemental briefing after oral arguments. Nothing in the text of the rule
bars the court from requesting such filings. As Judge Kavanaugh noted in Public
Citizen, Inc. v. National Highway Traffic Safety Administration:
“retains thediscretion to seek supplemental
submissions from the parties
if it decides that more information is necessary to determine whether
petitioners, in fact, have standing.” Am. Library Ass’n v. FCC, 401 F.3d
489, 494 (D.C. Cir. 2005); see, e.g., Am. Chemistry Council v. Dep’t
of Transp., 468 F.3d 810, 815 (D.C. Cir. 2006) (“[W]e raised the issue of
standing at oral argument and requested supplemental briefing.”); Action on
Smoking & Health v. Dep’t
100 F.3d 991, 992
(D.C. Cir. 1996) (petitioner
“furnished post-argument affidavits at our request”); see also Abigail Alliance
for Better Access to Developmental Drugs v. Von Eschenbach, 469 F.3d 129,
132 (D.C. Cir. 2006) (supplemental briefing sought where agency first
challenged standing after panel opinion issued).
489 F.3d at 1296.
The point here is simple:
under the law of this circuit, the members of a panel retain discretion to seek
supplemental submissions on standing to fulfill the obligation of the court to
determine whether the requirements of Article III have been met. Circuit Rule
28(a)(7) does not preclude this, nor does the law of the circuit. The reason is
clear. Circuit Rule 28(a)(7) says only that “[w]hen the
appellant’sorpetitioner’s standing is not apparent from the administrative
record, the brief must include arguments and evidence establishing the claim of
standing.” D.C. CIR.
R. 28(a)(7). This language is hardly free from ambiguity because what may be
“apparent from the administrative record” to one reasonable person may seem
less clear to another. And some parties may be unsure whether to explore every
conceivable avenue of standing in the first instance in light of the admonition
in Sierra Club cautioning advocates to submit only “a concise recitation
of the basis [for standing].” 292 F.3d at 901 (emphasis added); see also Am.
Library Ass’n, 401 F.3d at 494 (noting that a “gotcha” construction of
Circuit Rule 28(a)(7) and Sierra Club “is inconsistent with our
precedent and would have the
undesirable effect of causing
parties to include long jurisdictional statements in practically all opening
briefs for fear that the court might find their standing less than
self-evident”). So it is hardly surprising that it sometimes happens, as it did
in this case, that a party advances plausible arguments and offers concrete
evidence in support of standing in its opening brief, reasonably assuming that
nothing more is necessary, and the members of the panel still have questions.
In such circumstances, as our case law shows, the court acts with prudence in
applying Circuit Rule 28(a)(7) and in determining whether supplemental
submissions are necessary. That is what was done in this case.
2. The Elements of
Standing in this Case
theory of standing is that Krawitz,
a veteran of the United States Air Force, is harmed by the DEA’s
continued classification of marijuana as a Schedule I drug because it deprives
him of services that he is entitled to receive free of charge from the VA. The
record indicates that, as a condition of his pain management treatment, Krawitz
was asked by VA officials to sign a “Contract for Controlled Substance
Prescription” that would prohibit him from, inter alia, using medical
marijuana. See Supp. Krawitz Aff. ¶ 7; see also Krawitz Aff.
Ex.1. Krawitz claims that, because he refused to sign this contract, he is now
required to seek pain treatment outside the VA system. See Supp. Krawitz
Aff. ¶¶ 8-10. Petitioners also contend that Krawitz suffers injury because a
separate VA policy forces him to pay for a non-VA physician in Oregon to obtain
the referral forms required to
participate in that state’s medical marijuana program. See id.
¶¶ 11-15. Petitioners argue that both of these injuries are
caused by theDEA’s continued decision to classifymarijuana
as a Schedule I drug and
would be redressed by a favorable decision from this court. In response, the
Government argues that Petitioners cannot prove redressability because their
conclusion that rescheduling will result in any relief from the VA is too speculative.
The first element of the
“irreducible constitutional minimum of standing” is injury in fact, meaning “an
invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical.” Defenders
of Wildlife, 504 U.S. at 560 (citations omitted) (internal quotation marks
omitted). Petitioners clearly establish injury in fact here and Respondents do
not seriously question it. As a veteran, Krawitz is entitled to free medical
care from the VA system. This care normally includes the “[c]ompletion of forms
. . . by healthcare professionals based on an examination or knowledge of the
veteran’s condition.” 38 C.F.R. § 17.38(a)(1)(xv) (2012). This policy is
implemented by VHA Directive 2008-071, which states that “clinicians must honor
all requests by patients for completion of non-VHA medical forms.” Supp.
Krawitz Aff. Ex. 2. However, pursuant to VHA Directive 2011-004: “It is VHA
policy to prohibit VA providers from completing forms seeking recommendations
or opinions regarding a Veteran’s participation in a State marijuana program.”
Supp. Krawitz Aff. Ex. 1. Thus, to participate in Oregon’s medical marijuana
program, Krawitz consults with a non-VA physician in Oregon at an annual cost of
approximately $140.00. See Supp. Krawitz Aff. ¶ 15. In being forced to
pay out-of-pocket for care that he could otherwise receive freely from the VA
system, Krawitz clearly suffers an “actual” and “concrete” injury to his
“legally protected interest.” Defenders of Wildlife, 504 U.S. at 560; cf.
Peacock, 682 F.3d at 83 (holding that “procedural violations that threaten
an individual’s ability to obtain Medicaid coverage of prescription
medications” constitute injury in fact).
Beyond injury in fact, we
must determine whether Krawitz’s injuries have been caused by the DEA’s
decision to continue listing marijuana as a Schedule I drug and whether there
is a “substantial probability” that the relief requested would redress the
injury. See Nat’l Wrestling Coaches Ass’n, 366 F.3d at 944. The modest
complexity of these questions arises from the fact that the agency action
challenged by Petitioners – i.e. the DEA’s continued classification of
marijuana as a Schedule I drug – is not the direct cause of Krawitz’s injury.
Rather, his injury is caused by the actions of the VA system, which has decided
as a matter of policy not to assist patients in obtaining substances illegal
under federal law. This court has addressed standing under analogous
circumstances in at least four previous decisions. In those cases, we looked
for whether “the record presented substantial evidence of a causal relationship
between the government policy and the third-party conduct, leaving little doubt
as to causation and the likelihood of redress.” Id. at 941. In two of
those decisions, we found standing. In the other two, we denied standing. This
case more strongly resembles the former two.
In Block v. Meese, 793
F.2d 1303, 1308 (D.C. Cir. 1986), the plaintiff’s company owned exclusive
distribution rights to a film that the Justice Department classified as
“political propaganda.” The plaintiff alleged injury to his economic interests
because the classification deterred potential customers. Id. To support
this assertion, the plaintiff submitted declarations and affidavits from
potential customers who were dissuaded from purchasing the film because of its
status as “propaganda.” Id. We held that there was sufficient factual
evidence on the record to establish that the harm was “attributable to the classification.”
In Tozzi v. U.S.
Department of Health and Human Services, 271 F.3d 301 (D.C. Cir. 2001), a
manufacturer of PVC plastic challenged a decision by the Secretary of Health
and Human Services to list dioxin, a chemical released through the incineration
of PVC plastic, as a “known” carcinogen. Though this triggered no new federal
regulation, the manufacturer sued on the theory that the classification had
prompted state and local entities to regulate to the detriment of the
manufacturer. Id. at 309. Looking carefully at the record, we found
several reasons to conclude that the government action was “at least a
substantial factor motivating the third parties’ actions.” Id. at 308.
We noted that Congress intended the Secretary’s determination “to serve as the
federal government’s authoritative statement on the current state of knowledge
regarding the carcinogenicity of various chemicals.” Id. at 309 (citing
NO. 951192, at 28 (1978)
(describing the Secretary’s list as a “comprehensive document” containing “all
known or suspected carcinogenic agents”)). We also noted that the Secretary’s
list of carcinogens “is widely disseminated and highly influential,” and we
pointed to several local government restrictions on the use of PVC plastic that
explicitly cited the Secretary’s determination that dioxin is a “known” carcinogen.
Id. We also found it significant that the term “carcinogen” is
“inherently pejorative and damaging,” noting that this increased the
probability of an economically harmful third party response. Id.
In at least two other cases,
we have denied standing when a non-party’s conduct was the most direct cause of
the alleged injury. In National Wrestling Coaches Ass’n, 366 F.3d at
933, “several membership organizations that represent[ed] the interests of
collegiate men’s wrestling coaches, athletes, and alumni” challenged the
government’s Title IX enforcement policy, alleging that it had caused several
schools to cancel their men’s wrestling programs. We denied standing, reasoning
that the plaintiffs “offer[ed] nothing but speculation to substantiate their claim
that a favorable decision from this court [would] redress their injuries by
altering these schools’ independent decisions.” Id. at 937. And in Renal
Physicians Ass’n v. U.S. Department of Health & Human Services, 489
F.3d 1267 (D.C. Cir. 2007), a medical association challenged a government
regulation that allegedly depressed their compensation for in-house patient
referrals. Once again, this court denied standing, concluding it was
“speculative,” not “likely,” that rescinding the regulation would increase the
rate of compensation. Id. at 1277.
Turning to the facts of this
case, the causation element is satisfied because Krawitz’s injury is fairly
traceable to the Government’s decision to continue listing marijuana as a
Schedule I drug. As with the statute in Tozzi, Congress made clear when
it passed the CSA that the agency’s scheduling decisions should serve as the
federal government’s “authoritative statement” on the legitimacy of particular
narcotics and dangerous drugs. 271 F.3d at 309. The House Report for the CSA
explains that Congress had already enacted “more than 50 pieces of legislation”
relating to the regulation of dangerous drugs. H.R. REP. NO. 91-1444, reprinted in 1970
U.S.C.C.A.N. 4566, 4571. Congress intended the CSA and its scheduling program
to “collect and conform these diverse laws in one piece of legislation.” Id.
Furthermore, the Government’s classification of marijuana under Schedule I
is “inherently pejorative.” Tozzi, 271 F.3d at 309. Under the terms of
the Act, a Schedule I drug “has a high potential for abuse,”“has no currently
accepted medical use,” and has “a lack of accepted safety for use.” 21 U.S.C. §
812(b)(1). When the DEA classified marijuana as a Schedule I drug, pursuant to
its delegated authority under the CSA, it announced an authoritative value
judgment that surely was meant to affect the policies of third-party federal
Unsurprisingly, the VA has
heeded the DEA’s judgment regarding marijuana, thus making the question of
causation relatively easy in this case. The record before the court clearly
shows that the VA’s refusal to complete Krawitz’s medical marijuana forms is
traceable to the DEA’s continued decision to classify marijuana as Schedule I.
VHA Directive 2011-004, which prohibits VA providers from completing state
medical marijuana forms, cites three times to marijuana’s Schedule I status. See
Supp. Krawitz Aff. Ex. 1. Indeed, compliance with the CSA is the only
justification the Directive cites for this policy. See id. (“[VA]
providers must comply with all Federal laws, including the Controlled
Substances Act. Marijuana is classified as a Schedule I drug under the
Controlled Substances Act.”). In light of this evidence, the Government, in its
brief to the court, offers nothing more than a perfunctory challenge to
causation. This case is nothing like the situations in National Wrestling and
Renal Physicians, where the records contained only weak evidence of
causal links between the claimants’ injuries and the contested actions of
The Government focuses most
on redressability in contesting Krawitz’s standing in this case. The Government
argues that rescheduling marijuana would not “generate a significant increase
in the likelihood” that the VA would authorize its physicians to recommend
marijuana in Oregon. See Town of Barnstable v. FAA, 659 F.3d 28, 32
(D.C. Cir. 2011). In support of this argument, the Government suggests that,
based on the current scientific evidence, there would be no approval by the
Food & Drug Administration of medical marijuana, and, absent such approval,
VA physicians would be unlikely to recommend a substance that could not be
prescribed or readily subjected to supervised use.
The Government’s argument
against redressability fails. The issue is not whether VA physicians would
recommend marijuana usage to patients. The issue is only whether rescheduling
marijuana would “generate a significant increase in the likelihood” that
Krawitz could obtain completed state medical marijuana forms from the VA. See
id. Under existing regulations and VHA Directive 2008-071, VA clinicians
are subject to a non-discretionary duty to “honor all requests by patients for
completion of non-VHA medical forms.” See 38
C.F.R. § 17.38(a)(1)(xv)
(2012); Supp. Krawitz Aff. Ex. 2. The only thing stopping VA clinicians from
performing this duty with respect to Krawitz’s request is VHA Directive
2011-004. See Supp. Krawitz Aff. Ex. 1. The only reason the VA cites for
implementing VHA Directive 2011-004 is the classification of marijuana as a
Schedule I drug. Id. Therefore, were marijuana rescheduled to reflect
its potential for medical use, the VA would have no expressed reason to retain
VHA Directive 2011-004 and VA clinicians would likely be subject to a
non-discretionary duty to complete Krawitz’s state medical marijuana forms.
This case is fully
distinguishable from National Wrestling and Renal Physicians,
where we found redressability lacking. In both those cases, in addition to a
tenuous showing of causation, there were reasons beyond the challenged
government action for the third parties to continue the conduct that caused
injury to the plaintiffs. In National Wrestling there were many factors
that led each school to cancel its men’s wrestling program, such as “the
absence of league sponsorship for wrestling, budgetary concerns, and the need
to balance the athletic program with other University priorities.” 366 F.3d at
942. Furthermore, Title IX and its accompanying regulations would have remained
in force regardless of the case’s outcome. See id. at 943. Indeed the
plaintiffs in National Wrestling did not even contest the legality of
the Title IX regulations. Id. In Renal Physicians the court found
that the plaintiffs had failed to demonstrate redressability in part because,
even if the challenged regulation were struck down, market forces might drive
the injurious conduct to continue. See 489 F.3d at 1277.
In contrast, this case is
more like Tozzi. There we found it significant for redressability that
the Secretary’s listing of dioxin as a “known” carcinogen was the only such
pronouncement by the federal government. See 271 F.3d at 309-10.
Therefore, if we had set aside that listing, “dioxin activists could no longer
point to an authoritative determination by the United States government that
dioxin is ‘known’ to cause cancer in humans.. . . State and local governments
would be less likely to regulate dioxin, and healthcare companies would in turn
be less likely to stop using PVC plastic.” Id. at 310. Here, the
Schedule I listing is the authoritative federal declaration of marijuana’s
illegality and unfitness for medical use. The VA is a federal agency and thus
surely inclined to subscribe to such a federal declaration. Were the substance
rescheduled, the VA would lose the only express justification for its policy
against completing state medical marijuana forms. Therefore, it is “likely”
instead of merely “speculative” that Krawitz’s injury would be redressed.
Because Krawitz has Article
III standing due to his inability to have the VA system complete his state
medical marijuana forms, we need not consider whether his alleged inability to
obtain pain management services from the VA in Virginia warrants standing. We
also need not consider whether the other Petitioners have standing as well. See
v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981) (“Because we
find [one plaintiff] has standing, we do not consider the standing of the other
plaintiffs.”); see also Tozzi, 271 F.3d at 310 (same).
DEA’s Denial of the Petition to Initiate Proceedings to Reschedule Marijuana
On the merits, Petitioners
claim that the DEA’s final order denying their request to initiate proceedings
to reschedule marijuana was arbitrary and capricious. Under the terms of the
CSA, marijuana cannot be rescheduled to Schedules III, IV, or V without a
“currently accepted medical use.” 21 U.S.C. § 812(b)(3)-(5). To assess whether
marijuana has such a medical use, the agency applies a five-part test: “(1) The
drug’s chemistry must be known and reproducible;
(2) There must be adequate
safety studies; (3) There must be adequate and well-controlled studies proving
efficacy; (4) The drug must be accepted by qualified experts; and (5) The
scientific evidence must be widely available.” See Denial, 76 Fed. Reg.
40,552, 40,579. The DEA’s five-part test was expressly approved by this court
in Alliance for Cannabis Therapeutics, 15 F.3d at 1135. Because the
agency’s factual findings in this case are supported by substantial evidence
and because those factual findings reasonably support the agency’s final
decision not to reschedule marijuana, we must uphold the agency action.
Under the Administrative
Procedure Act, a court may set aside an agency’s final decision only if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). “We will not disturb the decision of an agency
that has ‘examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action including a rational connection between the facts
found and the choice made.’” MD Pharm. Inc. v. DEA, 133 F.3d 8, 16 (D.C.
Cir. 1998) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)). Furthermore, the agency’s interpretation of
its own regulations “must be given controlling weight unless it is plainly
erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512 (1994). The CSA also directs this court to
review the agency’s findings of fact for substantial evidence. See 21
U.S.C. § 877. Under this standard, we must “ask whether a reasonable mind might
accept a particular evidentiary record as adequate to support a conclusion.” Dickinson
v. Zurko, 527 U.S. 150, 162 (1999).
Petitioners do not seriously
dispute the propriety of the five-part test approved in Alliance for
Cannabis Therapeutics. Thus, they are left with the difficult task of
showing that the DEA has misapplied its own regulations. Petitioners challenge
the agency’s reasoning on each of the five factors. However, “[a] drug will be
deemed to have a currently accepted medical use for CSA purposes only if all
five of the foregoing elements are demonstrated.” Denial, 76 Fed. Reg.
at 40,579. In this case, we need only look at one factor, the existence of
“adequate and well-controlled studies proving efficacy,” to resolve
In its scientific and medical
evaluation, DHHS concluded that “research on the medical use of marijuana ha[d]
not progressed to the point that marijuana [could] be considered to have a
‘currently accepted medical use’ or a ‘currently accepted medical use with
severe restrictions.’” Id. at 40,560. As noted above, DHHS’
recommendations are binding on the DEA insofar as they rest on scientific and
medical determinations. 21 U.S.C. § 811(b). After an exhaustive examination of
the issue, the DEA, adhering to DHHS’ recommendation, reached the following
To establish accepted medical
use, the effectiveness of a drug must be established in well-controlled,
well-designed, well-conducted, and well-documented scientific studies,
including studies performed in a large number of patients (57 FR 10499, 1992).
To date, such studies have not been performed. The small clinical trial studies
with limited patients and short duration are not sufficient to establish
medical utility. Studies of longer duration are needed to fully characterize
the drug’s efficacy and safety profile. Scientific reliability must be
established in multiple clinical studies. Furthermore, anecdotal reports and
isolated case reports are not adequate evidence to support an accepted medical
use of marijuana (57 FR 10499, 1992). The evidence from clinical research and
reviews of earlier clinical research does not meet this standard.
Denial, 76 Fed. Reg. at 40,579.
Petitioners contest these
findings, arguing that their petition to reschedule marijuana cites more than
two hundred peer-reviewed published studies demonstrating marijuana’s efficacy
for various medical uses, and that those studies were largely ignored by the
agency. As we explain below, Petitioners’ singular reliance on “peer-reviewed”
studies misses the mark. It is also noteworthy that Petitioners’ brief to this
court fails to convincingly highlight any significant studies allegedly ignored
by DHHS or the DEA.
Petitioners’ argument focuses
at length on one study – the March 1999 report from the Institute of Medicine
(“IOM”) – that was clearly addressed by the DEA. The IOM report does indeed
suggest that marijuana might have medical benefits. See, e.g., INST. OF MEDICINE, MARIJUANA AND MEDICINE: ASSESSING THE SCIENCE BASE 177 (Janet E. Joy et al.
eds., 1999), reprinted in J.A. 208 (“For patients such as those with
AIDS or who are undergoing chemotherapy, and who suffer simultaneously from
severe pain, nausea, and appetite loss, cannabinoid drugs might offer
broad-spectrum relief not found in any other single medication.”). However, the
DEA fairly construed this report as calling for “more and better studies to
determine potential medical applications of marijuana” and not as sufficient
proof of medical efficacy itself. Denial, 76 Fed. Reg. at 40,580. In
other words, “while the IOM report did support further research into
therapeutic uses of cannabinoids, the IOM report did not ‘recognize
marijuana’s accepted medical use’ but rather the potential therapeutic
utility of cannabinoids.” Id.
At bottom, the parties’
dispute in this case turns on the agency’s interpretation of its own
regulations. Petitioners construe“adequate and well-controlled studies” to mean
peerreviewed, published studies suggesting marijuana’s medical efficacy. The
DEA, in contrast, interprets that factor to require something more
scientifically rigorous. In explaining its conclusion that there is a lack of
clinical evidence establishing marijuana’s “currently accepted medical use,”
the agency said the following:
[A] limited number of Phase I
investigations have been conducted as approved by the FDA. Clinical trials,
however, generally proceed in three phases. See 21
C.F.R. 312.21 (2010). Phase I
trials encompass initial testing in human subjects, generally involving 20 to
80 patients. Id. They are designed primarily to assess initial safety,
tolerability, pharmacokinetics, pharmacodynamics, and preliminary studies of
potential therapeutic benefit. (62 FR 66113, 1997). Phase II and Phase III
studies involve successively larger groups of patients: usually no more than
several hundred subjects in Phase II and usually from several hundred to
several thousand in Phase III. 21 C.F.R. 312.21. These studies are designed
primarily to explore (Phase II) and to demonstrate or confirm (Phase III)
therapeutic efficacy and benefit in patients. (62 FR 66113, 1997). No Phase II
or Phase III studies of marijuana have been conducted. Even in 2001, DHHS
acknowledged that there is “suggestive evidence that marijuana may have
beneficial therapeutic effects in relieving spasticity associated with multiple
sclerosis, as an analgesic, as an antiemetic, as an appetite stimulant and as a
bronchodilator.” (66 FR 20038, 2001). But there is still no data from adequate
and well-controlled clinical trials that meets the requisite standard to
Id. at 40,579-80.
The DEA interprets “adequate
and well-controlled studies” to mean studies similar to what the Food and Drug
Administration (“FDA”) requires for a New Drug Application (“NDA”). See id. at
40,562. DHHS found that “there have been no NDA-quality studies that have
scientifically assessed the efficacy of marijuana for any medical condition.” Id.
It is well understood that, under FDA protocols, “adequate and well-controlled
investigations” require “clinical investigations, by experts qualified by
scientific training and experience to evaluate the effectiveness of the drug
involved, on the basis of which it could fairly and responsibly be concluded by
such experts that the drug will have the effect it purports or is represented
to have under the conditions of use prescribed, recommended, or suggested in
the labeling or proposed labeling thereof.” 21 U.S.C. § 355(d). This is a
rigorous standard. See, e.g., Edison Pharm. Co. v. FDA,
600 F.2d 831, 843 (D.C. Cir. 1979) (holding that substantial evidence supported
the FDA’s conclusion that double-blind testing of a new drug was necessary
before the drug could be administered to cardiac patients); Holland-Rantos
Co. v. U.S. Dep’t of Health, Educ. and Welfare, 587 F.2d 1173, 1174
(D.C. Cir. 1978) (refusing to
construe the requirement of a “well-controlled investigation” in a “self-defeating
Contrary to what Petitioners
suggest, something more than “peer-reviewed” studies is required to satisfy
DEA’s standard, and for good reason. “[S]cientists understand that peer review
per se provides only a minimal assurance of quality, and that the public
conception of peer review as a stamp of authentication is far from the truth.”
Charles Jennings, Quality and Value: The True Purpose of Peer Review, NATURE.COM (2006),
http://www.nature.com/nature/ peerreview/debate/nature05032.html; see
also Lynn S. McCarty et al., Information Quality in Regulatory Decision
Making: Peer Review versus Good Laboratory Practice, 120 ENVTL. HEALTH PERSP. 927, 930 (2012) (“It is
difficult to extract from the extensive body of work and commentary published
over the last 25-30 years that scientific journal peer review is a coherent,
consistent, reliable, evaluative procedure. . . . [T]he opposite conclusion may
be more accurate.”). Petitioners may have cited some peer–reviewed articles in
support of their position, but they have not pointed to “adequate and
well-controlled studies” confirming the efficacy of marijuana for medicinal
uses. If, as is the case
here, “there is substantial evidence to support the [agency’s]
finding that the studies [offered by petitioner] are not
helpful, then petitioner must fail.” Unimed, Inc. v. Richardson,
458 F.2d 787, 789 (D.C. Cir. 1972). In making
this assessment, we must “remind ourselves that our role in
the Congressional scheme is
not to give an independent judgment of our own, but rather to determine whether
the expert agency entrusted with regulatory responsibility has taken an
irrational or arbitrary view of the evidence assembled before it.” Id.
The DEA’s construction of its
regulation is eminently reasonable. Therefore, we areobliged to defer to
theagency’s interpretation of “adequate and well-controlled studies.” See
Thomas Jefferson Univ., 512 U.S. at 512 (deferring to “an agency’s
interpretation of its own regulations”). Judged against the DEA’s standard, we
find nothing in the record that could move us to conclude that the agency
failed to prove by substantial evidence that such studies confirming
marijuana’s medical efficacy do not exist.
suggested during oral argument that the Government had foreclosed the research
that would be necessary to create sufficiently reliable clinical studies of
marijuana’s medical efficacy. Because Petitioners did not properly raise this
issue with the DEA and there is nothing in the record to support it, we do not
consider it here. We note, however, that DHHS’ recommendation explained that
“[t]he opportunity for scientists to conduct clinical research with marijuana
exists under the [D]HHS policy supporting clinical research with botanical
marijuana.” Denial, 76 Fed. Reg. at 40,562. Thus, it appears that
adequate and well-controlled studies are wanting not because they have been
foreclosed but because they have not been completed.
For the reasons discussed
above, we hereby deny the petition for review.
Over a decade ago, our court
was compelled to remind all petitioners of first principles, namely, they must
assure us that they meet Article III’s case or controversy requirement if their
standing is not “self-evident” from the record. Sierra Club v. EPA, 292
F.3d 895, 900 (D.C. Cir. 2002). We subsequently transformed the holding into
D.C. Circuit Rule 28(a)(7) to tell the litigating world we really meant what we
said in Sierra Club. Since then, our precedent and our Rule seem to have
been honored more in the breach than in compliance. We have issued pre-argument
orders alerting the parties to be prepared to address standing at oral argument
because of our uncertainty regarding standing based on the briefing. See,
e.g., Order, Cherry v. FCC, No. 10-1151 (Feb. 23, 2012). We have
allowed a second—late—opportunity to establish standing at the reply brief
stage. See Exxon Mobil Corp. v. FERC, 571 F.3d 1208, 1219 (D.C. Cir.
2008). We have even asked for post-argument briefs based on the petitioner’s
failure theretofore to establish standing. See Pub. Citizen, Inc. v. Nat’l
Highway Traffic Safety Admin., 489 F.3d 1279, 1297
(D.C. Cir. 2007); see also
id. at 462-63 (Sentelle, J., dissenting). Some of us have been more
forgiving than others. See, e.g., Am. Library Ass’n v. FCC, 401
F.3d 489, 492 (D.C. Cir. 2005) (Edwards, J.) (articulating Sierra Club exception
if petitioners “reasonably [but mistakenly] believed their standing [was]
self-evident”); Communities Against Runway Expansion, Inc. v. FAA, 355
F.3d 678, 685 (D.C. Cir. 2004) (Edwards, J.) (excusing belated submissions
attached to reply brief because they made standing “patently obvious”); KERM,
Inc. v. FCC, 353 F.3d 57, 60-61 (D.C. Cir. 2004) (noting petitioner’s
belated assertion of standing but nonetheless analyzing standing arguments)
(Edwards, J.). Perhaps it is too late to blow the whistle but I do not share
the solicitude my colleagues show the petitioners—no novices on their merits
claim1—here, especially in view of
the fact that their standing theory for the lone petitioner with standing
is, post-argument, brand new.
Petitioners Americans for
Safe Access (ASA), Coalition for Rescheduling Cannabis (CRC), Patients Out of
Time (POT), Kathy Jordan, Michael Krawitz, Richard Steeb and William Britt
(petitioners) petition for review of the decision of the Drug Enforcement Administration
(DEA or Agency), Denial of Petition To Initiate Proceedings To Reschedule
Marijuana, 76 Fed. Reg. 40,552 (Jul. 8, 2011), denying their petition to
initiate rulemaking proceedings to reschedule marijuana as a Schedule I
substance under the Controlled Substances Act (CSA), 21 U.S.C. §§ 801 et seq.
The majority determines—based on his post-argument submission—that Krawitz has
standing and thus proceeds to the merits. I believe the post-argument
submission should not have been allowed. Once allowed, it should not have been
considered because it asserts a new theory of standing. The remaining
petitioners also lack standing and therefore the petition for review should
have been dismissed.
To press their claim, the
petitioners must establish that at least one of them has standing. Rumsfeld
v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006).
Article III standing has three elements: “(1) injury-in-fact, (2) causation,
and (3) redressability.” Sierra Club, 292 F.3d at
individuals who joined the petitioners’ quest to reschedule marijuana at the
administrative stage—Jon Gettman and High Times—had petitioned for review of
DEA’s earlier failure to reschedule marijuana. We dismissed their petition for
lack of standing. Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002).
898. Reviewing administrative
action, we require that the petitioner “either identify in that record evidence
sufficient to support its standing to seek review or, if there is none because
standing was not an issue before the agency, submit additional evidence to the
court of appeals.” Id. at 899. Three of the seven petitioners—ASA, CRC
and POT—are organizations. The remaining petitioners—Jordan, Krawitz, Steeb and
Britt—are members of ASA (ASA Members). Neither CRC nor POT has attempted to
establish its standing. The remaining petitioners assert three theories of
standing: ASA’s standing as an association, the individual standing of the four
ASA Members and ASA’s standing representing its members. I begin with Krawitz’s
standing as he is the one whose standing the majority affirms.
A. Krawitz’s Standing
In their opening brief, the
petitioners did not distinguish Krawitz from the other ASA Members. With that
brief, the petitioners submitted an affidavit executed by Krawitz. Krawitz
declared therein that he was a disabled veteran and that he used marijuana to
alleviate his pain. Krawitz explained that he received medical benefits from
the United States Department of Veterans Affairs (VA) but that
[b]ecause of my medical
cannabis use, I am currently being denied my prescription pain treatment by
the VA based upon their illegal drug policy that routinely,
administratively, denies pain treatment as punishment for using cannabis by
veterans that do not live in a state with legal medical cannabis, based on VA’s
policy regarding medical cannabis, which, among other things, prohibits VA
physicians from discussing therapeutic uses of cannabis with me. A true and correct copy of that policy is attached hereto
as Exhibit 1. Although the bulk of my medical care
still occurs at VA hospital I am now seeing an
outside M.D. for my pain treatment
under the VA’s fee basis program.
Krawitz Aff. ¶ 4 (bracketed
text omitted) (emphasis added). To his affidavit, Krawitz attached a document
entitled “CONTRACT FOR CONTROLLED SUBSTANCE PRESCRIPTION.” Krawitz Aff. Ex. 1
at 1. The document is confusing at best, and, at worst, makes it appear as if
the VA itself could be providing Krawitz with marijuana. See, e.g.,
Krawitz Aff. Ex. 1 at 1 (“I will not request or accept controlled substance
medication from any other physician or individual while I am receiving such
medication from my physician at the Salem VAMC Clinic.”). The petitioners,
unhelpfully, provided no explanation of the contract in either their opening or
their reply briefs.
Krawitz’s affidavit and
exhibit failed to establish standing. His affidavit boiled down to the averment
that he was injured because the VA had a drug policy that “denies pain
treatment as punishment for using cannabis by veterans that do not live in a
state with legal medical cannabis,” Krawitz Aff. ¶ 4 (emphasis added). But
Krawitz challenges federal, not state law, and he has provided no evidence or
argument that rescheduling marijuana under the CSA will change the way any
state regulates marijuana. Indeed, state marijuana legislation in recent years
has distinctly diverged from federal law. See, e.g., Gettman v. DEA,
290 F.3d 430, 435 (D.C. Cir. 2002) (“[S]peculative claims dependent upon the
actions of third parties do not create standing.”).
Notwithstanding the failure
of the petitioners’ showing regarding standing—specifically, Krawitz’s
affidavit with attachment—we issued a post-argument order, giving them yet
another opportunity2 to “clarify and amplify the assertions made in
paragraph 4 of the Affidavit of Michael Krawitz regarding his individual
standing.” I dissented from the order because our precedent unequivocally
directs the method by which a petitioner must establish standing, a method the
petitioners ignored. In 2002, we explained:
Henceforth, therefore, a
petitioner whose standing is not self-evident should establish its standing by
the submission of its arguments and any affidavits or other evidence
appurtenant thereto at the first appropriate point in the review proceeding.
In some cases that will be in response to a motion to dismiss for want of
standing; in cases in which no such motion has been made, it will be with the
petitioner’s opening brief—and not, as in this case, in reply to the brief of
the respondent agency. In either procedural context the petitioner may carry
its burden of production by citing any record evidence relevant to its claim of
standing and, if necessary, appending to its filing additional affidavits or
other evidence sufficient to support its claim. In its opening brief, the
petitioner should also include in the “Jurisdictional Statement” a concise
recitation of the basis upon which it claims standing.
. . . . [A]ll too often the petitioner
does not submit evidence of those facts with
its opening brief and the
The petitioners’ reply brief, while providing
a more detailed standing argument and including (improperly) a supplemental
affidavit, was nonetheless deficient. With their post-argument opportunity to
supplement, the petitioners have now been allowed three chances to establish
respondent is therefore left
to flail at the unknown in an attempt to prove the negative, or the court
raises its own question about the petitioner’s standing and ends up having to
direct the parties to file supplemental briefs in order to ensure that the
issue is joined in a fair and thorough adversarial process.
Sierra Club, 292 F.3d at 900-01
(emphasis added). We cautioned that “[a]bsent good cause shown . . . a litigant
should not expect the court” to depart from the above procedure. Id. at
900. Sierra Club does not make the petitioner’s showing optional—it
instead constitutes binding Circuit law. As noted earlier, we codified Sierra
Club in our Circuit Rules as follows:
In cases involving direct
review in this court of administrative actions, the brief of the appellant or
petitioner must set forth the basis for the claim of standing. This section,
entitled “Standing,” must follow the summary of argument and immediately
precede the argument. When the appellant’s or petitioner’s standing is not
apparent from the administrative record, the brief must include arguments and
evidence establishing the claim of standing. See Sierra Club v. EPA, 292
F.3d 895, 90001 (D.C. Cir. 2002). If the evidence is lengthy, and not
contained in the administrative record, it may be presented in a separate
addendum to the brief.
D.C. Cir. R. 28(a)(7); see
also Int’l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1134-35
& n.2 (D.C. Cir. 2005) (dismissing petition for review because petitioner
“first addressed its standing at oral argument, in response to questioning by
the court”); Exxon Mobil, 571 F.3d at 1220 (declining to consider
standing theory first articulated at oral argument). The petitioners had made
no effort to show “good cause”3 for their
initial failure to establish standing. And, this being so, I opposed giving
them yet another opportunity to establish standing.
In response to the order, the
petitioners filed a supplemental brief with a new Krawitz affidavit, featuring
a new theory of standing. He avers, for the first time, that he spends
one or two months per year in Oregon, where he obtains marijuana for medical
use. To obtain medicinal marijuana in Oregon, a person must apply for a
registration card, which requires him to submit annually “[v]alid, written
documentation from the person’s attending physician stating that the person has
been diagnosed with a debilitating medical condition and that the medical use
of marijuana may mitigate the symptoms or effects of the person’s debilitating
medical condition.” See Or. Rev. Stat § 475.309(2), (7)(C)(i). Krawitz
complains that the VA has a policy—VHA Directive 2011-004—prohibiting its
physicians from providing such documentation, thus forcing him to pay $140.00
per year to consult an Oregon physician who can so provide.
Unlike his original
affidavit—in which Krawitz declared that the VA denied him pain
treatment—Krawitz’s new affidavit states that the VA is not denying him
treatment for pain based on his marijuana use. Moreover, VHA Directive 2011-004
makes plain that the VA does not have a policy of denying pain treatment
to veterans who are using marijuana, instead declaring: “VHA policy does not
3 We have
found “good cause” if, for example, a petitioner had a reasonable belief its
standing was self-evident, see Am. Library Ass’n, 401 F.3d at 492 or if
supplemental declarations submitted with a reply brief made standing “patently
obvious,” see Communities Against Runway Expansion, 355 F.3d at 685.
prohibit Veterans who
participate in State marijuana programs from also participating in VHA . . .
pain control programs . . . [D]ecisions to modify treatment plans in those
situations need to be made by individual providers in partnership with their
patients.” VHA Directive 2011-004 (Jan. 31, 2011), available at
In other words, Krawitz
asserts a new injury-in-fact—a $140.00 per year pocketbook injury—that is
nowhere to be found in even the most generous reading of his original
affidavit. As we have earlier held, however, “we are aware of no authority
which permits a party to assert an entirely new injury (and thus, an entirely
new theory of standing) in its reply brief.” Coal. for Responsible
Regulation, Inc. v. EPA, 684 F.3d 102, 147 (D.C. Cir. 2012) (per curiam)
(emphasis added). And plainly—until today—we have never permitted a
petitioner to assert an entirely new injury and theory of standing in a
policy—not that of the VA or of DEA—is the direct cause of Krawitz’s annual
$140.00 injury because, if Oregon eliminated the physician documentation
requirement, Krawitz’s injury would be immediately redressed. By contrast, if
we ordered DEA to reschedule marijuana, the VA might rescind VHA
Directive 2011-004 and Krawitz’s VA physician might complete the Oregon
documentation for Krawitz. See Memorandum Regarding State Medical Marijuana
Registration Forms from Department of Veterans Affairs General Counsel to
Under Secretary of Health at 5 (May 21, 2008) (cited by VHA Directive 2011-004)
(stating, prior to promulgation of VHA Directive 2011004, “[a]t present, the
language of 38 C.F.R. § 17.38(c)(3) does not require the completion of [medical
marijuana] forms by VHA physicians [because t]his regulatory provision
Because my colleagues found
that Krawitz has standing, they proceeded directly to the merits. Rumsfeld,
547 U.S. at 52 n.2 (“[T]he presence of one party with standing is sufficient to
satisfy Article III's case-or-controversy requirement.”). Because I believe
Krawitz lacks standing, I must consider the other petitioners’ standing.
B. Other Petitioners’
ASA’s Organizational Standing
In their opening brief, the
petitioners asserted that ASA has standing as an organization because it must
expend “significant resources combatting the DEA’s positions respecting
marijuana’s medical use and abuse potential, which would be redressed by a
favorable decision.” Pet’rs’ Opening Br. 6. In their reply brief, they argue
“ASA has been unable to employ a full-time California Director to interface
with government agencies in California and those of other medical marijuana states
to implement state law, in particular, the regulation of medical marijuana
dispensaries.” Pet’rs’ Reply Br. 3 (citing Sherer Supp. Aff. ¶ 2).
An organization does not have
standing based on a mere “ ‘setback to [its] abstract social interests.’ ” Nat’l
Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (quoting Nat’l
Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir.
1995)). An association’s “self-serving observation that it has expended
resources to educate its members and others regarding [a challenged statutory
provision] does not present an injury in fact,” particularly if “[t]here is no
evidence that [the challenged provision] has
approved drugs from the basic care
provided to veterans”); see also VHA Directive 2011-004, supra.
subjected [the association] to operational costs beyond those
normally expended to review, challenge, and educate the public.” Nat’l
Taxpayers Union, 68 F.3d at 1434. Nor is standing found “when the only
‘injury’ arises from the effect of the regulations on the organizations’
lobbying activities.” Ctr. for Law & Educ. v. Dep’t of Educ., 396
F.3d 1152, 1161
(D.C. Cir. 2005).
The petitioners support ASA’s
organizational standing by relying on Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982). In Havens, a nonprofit corporation sued the owner
of an apartment complex for damages under the Fair Housing Act because “the
[discriminatory] practices of [the apartment complex] had frustrated the
organization’s counseling and referral services, with a consequent drain on
resources.” Id. at 369. The Supreme Court upheld the nonprofit’s
standing because the “practices have perceptibly impaired [its] ability to
provide counseling and referral services for low-and moderate-income homeseekers
. . . . Such concrete and demonstrable injury to the organization’s
activities—with the consequent drain on the organization’s
resources—constitutes far more than simply a setback to the organization’s
abstract social interests.” Id. at 379.
We considered a similar
standing issue in Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir.
1990), where we found two organizations had standing to assert a claim for
injunctive relief and damages under the Fair Housing Act because the
discriminatory conduct “required [plaintiffs] to devote more time, effort, and
money to endeavors designed to educate not only black home buyers and renters,
but the D.C. area real estate industry and the public that racial preference in
housing is indeed illegal.” Id. at 27; see also id. at 28-29
(“increased education and counseling could plausibly required”). We emphasized
“the difference between this suit and one presenting only abstract concerns or
complaints about government policy;” specifically, the plaintiffs “do not seek
to compel government action, [or] to involve the courts in a matter that could
be resolved in the political branches” but rather “are private actors suing
other private actors, traditional grist for the judicial mill.” Id. at
Unlike Havens and Spann,
this case does not involve “private actors suing other private actors,
traditional grist for the judicial mill.” Id. Nor does it involve a suit
for damages under a federal statute (like the Fair Housing Act) that creates a
cause of action. Instead, it serves “to compel government action, [and] to
involve the courts in a matter that could be resolved in the political
branches.”5 Id. Moreover, ASA’s asserted
injury—that it must spend money to “educate the public about the true benefits
of marijuana” and to “lobby[ ] local, state and federal governments,” Sherer
Aff. ¶¶ 8, 12—is essentially an argument that ASA cannot allocate issue
advocacy expenses in the way it would prefer, which is insufficient to
establish standing. See Ctr. for Law & Educ., 396 F.3d at 1162 (“The
only ‘service’ impaired is pure issue-advocacy—the very type of activity
distinguished by Havens.”). Nor have the petitioners explained how ASA
would be able to avoid these expenditures if marijuana were rescheduled. For
example, ASA would still need to meet the substantial scientific
evidence—identified by DEA—that rejects its position regarding marijuana’s
medical efficacy. Similarly, ASA would need to counter statements made by
5 ASA and similar organizations have had great political
success in recent years. See, e.g., Louise Radnofsky, Voters
Weigh Social Issues, Wall St. J., Nov. 7, 2012 (seventeen states and
District of Columbia have legalized the medicinal use of marijuana; Washington
and Colorado have legalized marijuana for recreational use).
entities other than DEA
(including the very state and local governments they are lobbying) that oppose
legalization of marijuana for medical use. See Nat’l Taxpayers Union, 68
F.3d at 1434 (“There is no evidence that [the challenged statutory provision]
has subjected [the association] to operational costs beyond those normally
expended to review, challenge, and educate the public.”).
The closest the petitioners
come to establishing an injury to ASA as an organization is their statement
that “[s]ince 2006, due to expenditures made by ASA to offset the false
statements made by the [DEA and HHS] that marijuana has no medical use and is
extremely dangerous, ASA has been unable to hire a full-time California
Director.” Sherer Supp. Aff ¶ 2. But whatever happened in 2006 that prevented
ASA from hiring a full-time California Director, it could not have been
marijuana’s Schedule I listing because marijuana has been so listed since
1970. See 21 U.S.C. § 812(c) (establishing initial schedules of
ASA Members’ Individual
The petitioners also assert
that the three ASA Members other than Krawitz have their own individual
standing. In their opening brief, they assert that if marijuana were removed
from Schedule I, the three would no longer be “deterred from cultivating their
own medicine . . . since they would likely be afforded a medical necessity
defense in federal court.” Pet’rs’ Opening Br. 7. Nevertheless, “speculative
claims dependent upon the actions of third parties do not create standing.” Gettman,
290 F.3d at 434-35 (dismissing petition—for lack of standing—of marijuana
researcher who argued DEA decision not to reschedule marijuana decreased his
potential customers and diminished his ability to conduct research). Here, the
causal chain is even more speculative. ASA’s Members allege that their injury
could be redressed by a favorable ruling because (1) if marijuana were
rescheduled; and (2) if they chose to cultivate marijuana; and
(3) if the federal government detected the cultivation; and (4) if the
federal government prosecuted the cultivators; and (5) if the
cultivators asserted a medical necessity defense; and (6) if the court
accepted the medical necessity defense; then (7) they would avoid
criminal liability for cultivation.6
Moreover, the existence of a
medical necessity defense for marijuana cultivation is tenuous at best. The
petitioners assert that marijuana’s Schedule I status is the only thing
preventing courts from recognizing the defense, citing United States v.
Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001), which held that no
medical necessity defense exists for the illegal distribution of various
controlled substances, including marijuana, because the CSA “reflects a
determination that marijuana has no medical benefits worthy of an exception.” Id.
at 491. The Court’s reasoning made
The ASA Members’ standing argument is
reminiscent of the nursery rhyme “For Want of a Nail:”
For want of
a nail, the shoe was lost,
For want of
the shoe, the horse was lost,
For want of
the horse, the rider was lost,
For want of
the rider, the battle was lost,
For want of the battle,
the kingdom was lost,
And all for
the want of a horse-shoe nail!
Stuart Minor Benjamin, Proactive
Legislation and the First Amendment, 99 MICH. L. REV. 281, 329
n.168 (2000) (quoting Mother Goose’s Nursery Rhymes 191 (Walter Jerrold ed.,
A. Knopf Inc. 1993) (1903)). While a
lost nail may lead to a lost kingdom, establishing Article III standing
requires more than a good imagination.
clear, however, that rescheduling marijuana would not necessarily
produce a medical necessity defense because “it is an open question whether
federal courts ever have authority to recognize a necessity defense not
provided by statute.” Id. at 490 (“Even at common law, the defense of
necessity was somewhat controversial.”).
Assuming arguendo the
three ASA Members decide to cultivate marijuana, it is far from likely that a
federal prosecutor would exercise his discretion to prosecute. In fact, the
Department of Justice recently suggested that it did not consider it an
efficient use of resources to prosecute “individuals with cancer or other
serious illnesses who use marijuana as part of a recommended treatment regimen
consistent with applicable law, or those caregivers in clear and unambiguous
compliance with existing state law who provide such individuals with
marijuana.” David W. Ogden, Deputy Attorney General, U.S. Dep’t of Justice, Investigations
and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct
19, 2009), available at http://www.justice.gov/opa/documents/medical-marijuana.pdf.7
James M. Cole, Deputy Attorney General, U.S. Dep’t of Justice, Guidance
Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for
Medical Use (June 29, 2011), available at
/resources/guidance_regarding_medical_marijuana.pdf (Ogden Memorandum was not
intended to shield from prosecution “planned facilities” with “revenue
projections of millions of dollars” and that “[p]ersons who are in the business
of cultivating, selling or distributing marijuana . . . are in violation of the
Controlled Substances Act, regardless of state law”).
ASA’s Representational Standing
Finally, I believe that ASA
lacks standing to bring this action on behalf of its members because ASA has
failed to establish that one of its members has standing to sue in his own
right. Fund Democracy, LLC v. SEC, 278 F.3d 21, 25
(D.C. Cir. 2002) (“An
association only has standing to bring suit on behalf of its members when[, inter
alia,] its members would otherwise have standing to sue in their own right
. . . .”).8
Because I believe that no
petitioner possesses Article III standing, I respectfully dissent.9
In addition, intervenor Carl Olsen lacks
standing. He concedes that his injury can be redressed only if marijuana is
removed from all CSA schedules, a remedy the petitioners do not seek.
Furthermore, Olsen makes distinct arguments from those of the petitioners—for
example, he invokes “federalism”—and thus he cannot supply the requisite
standing. See Ill. Bell Tel. Co. v. FCC, 911 F.2d 776, 786 (D.C. Cir.
9 While my dissent begins with the observation
that some of my colleagues are more forgiving than others in allowing
exceptions to the Sierra Club rule, codified in Rule 28(a)(7), it is now
apparent the majority would have the exceptions swallow the Rule. Ignoring our
longstanding precedent that arguments may not be made for the first time in a
reply brief, see, e.g., Porter v. Shah, 606 F.3d 809, 814 n.3
(D.C. Cir. 2010), during oral argument, see, e.g., United States v.
Southerland, 486 F.3d 1355, 1360 (D.C. Cir. 2007), or during rebuttal oral
argument, see, e.g., Coal. of Battery Recyclers Ass’n v. EPA, 604
F.3d 613, 623 (D.C. Cir. 2010)—they would revise Rule 28(a)(7) to create a
“reasonable belief/effort” mega-exception permitting any party to assert an
entirely new standing theory not only in a reply brief or during oral argument
but even after oral argument.
in the room is that we do not allow “a party to assert an entirely new injury
(and thus, an entirely new theory of standing) in its reply brief,” Coal.
for Responsible Regulation, 684 F.3d at 147, much less in a supplemental
brief. As already noted, in his supplemental affidavit Krawitz raises a new
injury and, thus, a new theory of standing. Yet in response to this undisputed
fact, my colleagues do not attempt to claim Krawitz’s theory of standing is not
new. Instead, they skirt the issue by noting that DEA did not so argue in its
supplemental brief. First and foremost, whether a party has established
standing is for the court—not the parties—to decide. See, e.g., Animal
Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994)
(“Standing . . . is a jurisdictional issue which cannot be waived or
conceded.”); cf. Am. Library Ass’n, 401 F.3d at 495 (“[W]hether standing
is self-evident must be judged from the perspective of the court[.]”). And the
majority’s statement that Rule 28(a)(7) (let alone Sierra Club) “ha[s]
no relevance” absent an objection, see Maj. Op. 11, is wholly
unsupported. In any event, DEA did protest that Krawitz raised a new
standing theory. While DEA did not cite Sierra Club or Rule 28(a)(7), it
maintained that Krawitz “states, for the first time, that he participates in
the ‘Oregon Medical Marijuana Program;’ ” and now “claims not that he is denied
VA pain treatment in Oregon but that the VA prohibits its physicians from
completing a state program form.” Resp’t Supp. Br. 1.
The majority’s new exception
declares that “[i]f the parties reasonably, but mistakenly, believed that the
initial filings before the court had sufficiently demonstrated standing, the
court may—as it did here—request supplemental affidavits and briefing.” Maj.
Op. 10 (citing Pub. Citizen, Inc., 489 F.3d at 1296-97; Am. Library
Ass’n, 401 F.3d at 492, 496); see also Maj. Op. 12 (suggesting we
should allow supplemental briefing if parties make a “reasonable effort” to
satisfy Rule 28(a)(7)). But Public Citizen and American Library
Association establish no such exception to our Rule. See, e.g., Am.
Library Ass’n, 401 F.3d at 492 (establishing exception if the petitioners
“reasonably [but mistakenly] believed their standing [was] self-evident”).
Moreover, I do not see how the majority’s new exception would not apply in
virtually every case—presumably parties do not make “unreasonable” standing
arguments or fail to use reasonable efforts to establish their standing.