1 Under the C.S.A., a drug or substance may not be placed in Schedule II absent findings that:
(A) The drug or other substance has a high potential for abuse;
(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions;
(C) Abuse of the drug or other substances may lead to severe psychological or physical dependence. 21 U.S.C. 812(b)(2)(A)-(C).
2 Administrator applied a five-part test for determining whether a substance had a currently accepted medical use:
(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 a respectable minority of qualified experts; and
(5) the scientific evidence must be widely available.
57 Fed. Reg. at 10,504-10,507 (1992). After reviewing the evidence in the record, the Administrator found that marihuana could not satisfy a single one of these criteria. Id. at 10,507.
3 See e.g., A.C.T. v. D.E.A., 15 F.3d 1131 (1994); A.C.T.et. al. v. D.E.A., 930 F.2d 936 (1991); NORML v. D.E.A., 559 F.2d 735 (1977); NORML v. Ingersoll, 497 F.2d 654 (1974). As the history of this controversy clearly demonstrates the D.E.A has repeatedly made medical and scientific determinations without the advice of H.E.W. NORML, 559 F.2d at 741; NORML v. Ingersoll, 497 F.2d 654.
4 As one legislator noted, This title vests the authority for control of the substances enumerated under its provision with the Attorney General. There has been a point of controversy evident among the professionals involved in drug control and drug research on whether or not the Justice Department has the expertise to schedule or reschedule drugs since such decisions require special medical knowledge and training. NORML, 559 F.2d at 746. The Senate report further noted that the provision which requires the D.E.A. to follow H.E.W. advice during scheduling proceedings alleviates this difficulty. S.Rep.No.91-613, H.R.Rep.No.91-1444, 91st Cong., 2d sess., pt. 1, at 5, U.S.Code Cong. & Admin.News 1970, pp. 4566, 4569 (1970).
5 As the language of the regulation reads, if accepted for filing a petition may be denied if the Administrator finds the grounds upon which the petitioner relied are not sufficient to justify the initiation of proceedings.
6 Despite this clearly stated position, Administrator Green simply ignored the letter.(2-9a) Poignantly, no mention of this letter is ever made in the respondents brief to the Appeals Court. Id.
7 Despite this contention, D.E.A. Deputy Administrator Green proceeded to deny Mr. Olsens petition by analyzing the scientific and medical issues Mr. Olsen had noted in his petition.