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I DAVID W. DRATMAN
Attorney at Law
2 428 J Street, Suite 202
Sacramento, CA 95814
3 Telephone: (916) 443-2000Attorney for
4 ROBERT MARK McLAUGHLIN
5 DORON WEINBERG
LARSON & WEINBERG
6 Attorneys at Law523 Octavia Street
7 San Francisco, CA 94102
Telephone: (415) 431-3472
8 Attorney forPAUL MICHAEL BERNAUER
9
10 UNITED STATES DISTRICT COURT
11 COR THE EASTERN DISTRICT OF CAL_FORNI.A
12 UNITED STAncES OF AMERICA, )
)13 Pla inti :_f, )
)a
)"15 i', ROBERT MARK McLAUC_{LIN, ) CR. _O. 3-8_.'[81 _:.r<
II >16 i_ Defendant. )
17 )UNITED STATES OF AMERICA, ) C_, _i,)o '4J86-180 RAR
18
Plaintiff,19 )
_.i%'. );_oi! )
:;.ii= )ii De_dau_. ) DATE: December I0, 1986
•:,.::. it ) TIME: i0:00 a.m..... !! ) PLACE: Courtroom of the
;i:_ii Hon. RAUL A. RAMIREZ
2.i_ NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF JURISDICTION;
MEMORANDUM OF PQ:rNTS AND AUTHORITIES IN SUPPORT THEREOF
28
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1 TOPICALINDEX
Pa@e2
Table of Authorities ............... ii3
Statement of the Case .............. 44
Argument5
I. Introduction .............. 46
II. THE ADMINISTRATOR OF THE DRUG
7 ENFORCEMENT ADMINISTRATION CANNOT
LAWFULLY CLASSIFY MDMA IN SCHEDULE 1
8 UNDER THE EMERGENCY PROVISION IN
SECTION 811(h) ............. Ii9
A. Section 811(h) Represents an
10 Unconstitutional Delegation byCongress of Legislative Powers
11 to the Executive Branch of the
Government, the Attorney General . . ii12
B. The Fai lure of the Attorney
13 General to Sub-delegate theEmergency Powers of 811(h) to
14 the DEA Invalidates the DEA's
Emergency Scheduling of MDMA as15 a Schedule I Substance ....... 16
16 III. THERE IS NO RATIONAL BASIS FOR
TEMPORARY CLASS I FICATION OF SUB-
17 STANCES IN SCHEDULE I AS SET FORTH
IN 811(h) ................ 1918
A. There is no Rational Basis for
19 Requiring the Temporary Class-ification to be in Schedule I . . . 19
2O
B. There is no Rational Basis for
21 Allowing the Invocation of the
Emergency Power Without Regard22 to Appropriate Criteria ...... 22
23 IV. THE EXTENSION OF THE EMERGENCYSCHEDULING OF MDMA BY THE DEA WAS
24 ARBITRARY AND CAPRICIOUS IN
VIOLATION OF DUE PROCESS ........ 2325
V. THE EMERGENCY SCHEDULING OF MDMA BY
26 THE DEA WAS NOT NECESSARY TO AVOID
AN IMMINENT HAZARD TO THE PUBLIC27 HEALTH ................. 27
28 CONCLUSION ................... 30
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I TABLE OF AUTHORITIES
2 Pa_e
3 Cases
4
5 American Power &Light Co. v. Securities & Exchan@eCommission, 329 U.S. 90, 105 (1948) ..... 12
6
Asarco, Inc. v. U.S. Environmental Protection Agency7 616 F.2d 1153, 1159 (9th Cir. 1980) ..... 26
8 Avent v. United States
266 U.S. 127, 130-31 (1924) .......... 12, 149
Bell v. United States
10 349 U.S. 81 (1955) .............. 18
11 Beltman v. Cohen
303 F.Supp. 889 (N.D. Cal. 1969) ....... 2012
Citizens to Preserve Overton Park v. Volpe13 401 U.S. 402, 415 (1971) ........... 24, 25
14 Electricity Consumers Resource Council v. FERC
747 F.2d 1511, 1518 (D.C. Cir. 1984) ..... 2615
Garcia v. United States
16 439 U.S. 1051 (1978) ............. 12
17 Helvenin_ v. City Bank Farmers Trust Co.298 U.S. 85, 90 (1975) ........... 20
18
Kunaknana v. Clark
19 742 F.2d 1145, 1149 (9th Cir. 1984) ..... 26
20 McKinley v. United States
249 U.S. 397 (U1919) ............. 12, 1421
Motor Vehicle Manufs. Ass'n. v. State Farm Mutual
2? Automobile Insur. Co., 463 U.S. 29, 42-43(1983) .................... 26
23
Panama Refining Co. v. Ryan
24 293 U.S. 388 (1935) ............. 13, 14
25 RSR Corp. v. EPA528 F.Supp. 1251 (N.d. Tex. 1984) ....... 26
26
Ralpho v. Bell;3 569 F.2d 607, 617 (D.C. Cir. 1977) ...... 16
28
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I Page
2
3 A.L.A. Schechter Poultry Corp. v. United States
295 U.S. 495 (1935) .............. 13, 144
Shaughnessy v. Accardi5 349 U.S. 280 (1955) ............. 25
6 United States v. Barron
594 F.2d 1345, 1352-53 (10th Cir.) cert. deniedz 441 U.S. 951 (1979) ............. 12
8 United States v. Bass
404 U.s. 336 (19781) ............. 189
United States v. Davis
10 584 F.2d 840, 843-44 (9th Cir. 1977), cert.
denied, 434 U.S. 1015 (1978) ......... 12, 1311
United States v. Giordano
12 416 U.S. 505 (1974) ............. 18
13 United States v. Gordon
580 F.2d 827, 839-40 (5th Cir.) cert. denied14 sub. nora................... 12
15 United States v. Grimaud
220 U.S. 506, 512-14 (1911) .......... 12, 1416
United States v. Lizarraga-Lizarraga17 541 F.2d 826 (9th Cir. 1976) ......... 16
18 United States v. Morgan313 U.S. 409, 411 (1941) ........... 25
19
United States v. Pastor
20 557 F.2d 930, 941 (2nd Cir. 1977) ....... 13, 14
21 United States v. Pees and McNeil
No. 86-CR-153 (D. Colo. 1986) ....... 1922
United States v. Piatti
23 416 F.Supp. 1202 (E.D.N.Y. 1976) ....... 13
24 United States v. Porter
554 F.2d 935, 939-40 (8th Cir. 1976) ..... 1225
United States v. Smith
26 740 F.2d 734 (9th Cir. 1984) ......... 12
27
28
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I Pa_e
2
3 CONSTITUTIONAL AND STATUTORY PROVISIONS
4 U.S. Const. art. I, Sec. 1 ............. ii
5 U.S. Const. art. I, Sec. 8 ............. ii
6 U.S. Const. amend. V ................ passim
," Administrative Procedures Act
5 U.S.C.A. Sec. 551-559 ........... passim8
Controlled Substances Act
9 21 U.S.C.A. Sec. 801-904 ........... passim
10 21 U.S.C.A. Sec. 811 ............... passim
11 21 U.S.C.A. Sec. 812 ............... passim
12 21 U.S.C. Sec. 841 ............... passim
13 21 U.S.C. Sec. 848 ............... 20
14 Comprehensive Crime Control Act of 1984,
Pub. L. No. 98-473, 98 Stat. 21071,
15 reprinted in 1984 U.S. Code Cong.
& Ad. News 3182 ............... 9_6
Comprehensive Drug Abuse Prevention and
17 control Act of 1970, Pub. L. No. 91-513,
84 Stat. 1245, reprinted in 1970 U.S.
18 Code Cong. & Ad. News 4566 ......... 5, 17
19 Dangerous Drug Diversion and Control Act of 1984,
Pub. L. No. 98-473, Title II, Sect. 508,
20 98 Stat. 2071 (1984) ............. 9, 17
21 21 C.F.R. Sec. 1308.1 (1985) ........... 6
:?2 28 C.F.R. Sec. 0.i00 ............... 8
-_ MISCELLANEOUS
24 38 Fed. Reg. 18380 (1973) ............. 8
25 46 Fed. Reg. 52348 ................ 8
28 49 Fed. Reg. 30210 (1984) ............. 8
26 -iv-
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I
Pase2
3
50 Fed. Reg. 23118 (1985) ............. 4, 9, 1
4 28
5 50 Fed. Reg. 28395 (1985) ............. 9
6 51 Fed. Reg. 21911 (1986) ............. ii
7 51 Fed. Reg. 36552 (1986) ............. ii
8 Baum, New Variety of Street Drugs PosesGrowing Problem, Chemical & Engineering
g News (published by the American Chemical
Society), September 9, 1985 ......... 5I0
Brain Mind Bulletins, Frontiers of Research,
11 Theory, and Practice, Vol. 1O, Nos. 8
(April 15, 1985), 12 (July 8, 1985),12 Vol. ll, NO. 1 (November 18, 1985) ...... 29
13 H.R. Rep. No. 835 Part l, 98th Cong.
2d Sess. 10 (June 12, 1984) ......... 21, 2814
In the Matter of MOMA Scheduling,
15 Op. and Recommended Dec is ion on
Preliminary Issue, Justice DEA,16 No. 84-48 (June l, 1985) .......... 23
17 In the Matter of MDMA Scheduling,
Op. and Recommended Dec is ion,18 Justice DEA, No. 84-48 (May 22, 1986) .... 23
Ig S. Rep. No. 225, 98th Cong. 2d Sess.,
reprinted in 1984 U.S. Code Cong. & Ad.20 News 3182 .................. 21
21 Schwartz, Administrative Law, Sec. 147 (1976) . 15
22 Schafer, "The War on Drugs is Over. The
Government has Lost. " Inquiry.
23 February 1984 ................ 29
24
25
26
27
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1 DAVID W. DRATMAN
Attorney at Law2 428 J Street, Suite 202
Sacramento, CA 95814
3 Telephone: (916) 443-2000
Attorney for4 ROBERT MARK McLAUGHLIN
5 DORON WEINBERG
LARSON & WEINBERG
6 Attorneys at Law523 Octavia Street
7 San Francisco, CA 94102
Telephone: (415) 431-34728 Attorney for
PAUL MICHAEL BERNAUER9
I0
11 UNITED STATES DISTRICT COURT
12 FOR THE EASTERN DISTRICT OF CALIFORNIA
13
14 UNITED STATES OF AMERICA, )
)15 Plaintiff, )
)16 v. )
)17 ROBERT MARK McLAUGHLIN, ) CR. NO. S-86-181 RAR
)18 De fendan t. )
)19 )
UNITED STATES OF AMERICA, ) CR. NO. S-86-180 RAR20 )
Plaintiff, ) NOTICE OF MOTION AND MOTION21 ) TO DISMISS FOR LACK OF
v. ) JURISDICTION;MEMORANDUM OF
22 ) POINTS AND AUTHORITIES INPAUL MICHAEL BERNAUER, ) SUPPORT THEREOF
23 )Defendant. ) DATE: December i0, 1986
24 ) TIME: I0:00 a.m.) PLACE: Courtroom of the
25 Hon. RAUL A. RAMIREZ
26
27 PLEASE TAKE NOTICE that on December 10, 1986, at 10:00
28 a.m. or as soon thereafter as counsel may be heard, in the
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I Courtroom of the Honorable RAUL A. RAMIREZ, United States
2 District Judge, Eastern District of California, Defendants ROBERT
3 MARK McLAUGHLIN and PAUL MICHAEL BERNAUER, will and do hereby
4 move this Court in their respective cases for an order dismissing
5 the Indictment against ROBERT MARK McLAUGHLIN and Count II of the
6 Indictment against PAUL MICHAEL BERNAUER for lack of
7 jurisdiction.
8 This motion is made upon the grounds that the emergency
9 classification, pursuant to 21 U.S.C.A. Section 811 (h) of MDMA
10 as a Schedule I controlled substance (Title 21, U.S.C. Section
11 811) by the Administrator of the Drug Enforcement Administrator
12 (DEA) violates the due process clause and Article I, Section I,
13 of the United States Constitution because:
14 I. Section 811 (h) represents an
unconstitutional delegation by Congress of
15 legislative powers to the executive branch of
the government, the Attorney General;
16
2. The emergency scheduling powers under17 section 811 (h) were not vested in the DEA;
18 3. There is no rational basis for temporaryclassification of substances in Schedule I as
19 set forth in subsection (h);
20 4. The extention of the emergency scheduling
of MDMA by the DEA was arbitrary and
21 capricious in violation of due process;
?2 5. The DEA's classification of MDMA inSchedule I was not necessary to avoid an
:_3 imminent hazard to the public health.
24 This motion is based upon the records and files in the
25 instant case, the United States Constitution, the United States
26 Code, the Code of Federal Regulations, the attached Memorandum of
Points and Authorities, the attached exhibits, and upon such oral.z_
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I or documentary evidence as may be adduced at the hearing of this
2 motion.
3 DATED: October 29, 1986
4 Respectfullysubmitted,
5 LARSON & WEINBERG
7 By : DORON WEI _'_''-1NBERG _ D_ DAVID W. DRATMAN8 Attorneys for Defendant Attorney for Defendant
PAUL MICHAEL BERNAUER ROBERT MARK McLAUGHLIN9
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17
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i MEMORANDUM OF POINTS AND AUTHORITIES
2 STATEMENTOF CASE
3 Defendant ROBERT MARK McLAUGHLIN, was indicted in Case
4 No. CR. S-86-181 RAR on August I, 1986, for a violation of Title
5 21, U.S.C. Section 841(a) (i), Possession with Intent to
6 Distribute methelene-dioxy-methamphetamine (MDMA) alleged to have
7 occured on or about July 21, 1986.
8 Defendant PAUL MICHAEL BERNAUER, was indicted on August
9 i, 1986, in CR. S-86-180 RAR in two counts. Count II charges a
10 violation of Title 21, U.S.C. Section 841(a)(i), Possession with
11 Intent to Distribute methylene-dioxy-methamphetamine (MDMA)
12 alleged to have occured on or about July 21, 1986.
13 Both cases were consolidated for purposes of pretrial
14 motions. Each case is separately scheduled to commence jury
15 trial on January 27, 1986.
16 ARGUMENT
17 I.
18 INTRODUCTION
19 On May 31, 1985, the Administrator of the Drug
20 Enforcement Adminstration (hereinafter "DEA") exercised the
21 emergency drug classification powers vested in the Attorney
_? General under Title 21, U.S.C.A., section 811(h), and declared
23 3,4 - Methylene-dioxy-methamphetamine (hereinafter "MDMA") a
24 Schedule 1 controlled substance. 50 Fed. Reg. 23118-20 (1985).
25 Effective July I, 1985, the classification was to expire on July
26 I, 1986. On June 17, 1986, the DEA Administrator published a
;_7 notice extending the emergency classification of MDMA from July
28 i, 1986 to January l, 1987 or until the conclusion of the
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I rulemaking proceeding regarding MDMA, whichever occurred first.
2 It is this temporary emergency classification of MDMA and
3 primarily its six month extension that Defendants McLAUGHLIN and
4 BERNAUER challenge herein, which, if found unconstitutional,
5 should result in a dismissal of the Indictment against McLAUGHLIN
6 and Count II against BERNAUER, since no such offense against the
7 United States lawfully exists.
8 In order to fully evaluate the issues presented in this
9 case, the following summarizes the history of MDMA and how it
10 became listed under the Controlled Substances Act. 21 U.S.C. 801-
11 904 (hereinafter "CSA") :
12 MDMA has existed as a chemical compound for over
13 seventy years, having been patented in 1914. Baum, New Variety
14 of Street Drugs Poses Growing Problem. Chemical & Engineering
15 News (published by the American Chemical Society). September 9,
16 1985, at 12.
17 On October 27, 1970, Congress passed the Comprehensive
18 Drug Abuse Prevention and Control Act of 1970. Pub. L. No. 91-
19 513, 84 Star. 1245, reprinted in 1970 U.S. Code Cong. & Ad. News
20 4566. Title ii of that Act constituted the CSA, and, in essence,
21 replaced and superseded previous federal laws governing drug
22 trafficking. Pub. L. No. 91-513, Title ll, Section 201, 84 Stat.
23 1245 (1970).
24 In the CSA, Congress established five schedules
25 (Schedules I-V) for classification of controlled substances. 21
26 U.S.C.A. Section 812(b)(i) (1981). The 1970 bill contained the
27 initial list of scheduled drugs, which did not include MDMA in
28 any schedule. In general, those substances found to have the
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I most deleterious effect on the public, and no corresponding
2 medical benefits, for example, heroin, were placed in Schedule I.
3 Other drugs were scheduled in descending order with respect to
4 their potential for abuse and corresponding utility in medical
5 treatment. For example, cocaine was classified under Schedule
6 II, and codeine was classified under Schedule III.
? Congress delegated to the Attorney General of the
8 United States the authority to amend the schedules under limited
9 circumstances. 21 U.S.C.A. Section 811(a) (1981). If the
]0 Attorney General makes findings prescribed by sections 811,
11 subsection (c), and 812, subsection (b), a substance may be added
12 to or transferred between the schedules. 21 U.S.C.A. Section
13 (a) (I) (1981). The schedules established by the CSA are updated
14 and republished annually in the Code of Federal Regulations. 21
15 U.S.C.A. Section 812(a) (1981): 21 C.F.R. Section 1308.1 (1985).
16 Before the Attorney General may amend the schedules, he
17 must gather the necessary information to make the factual
18 determinations prescribed by the CSA. 21 U.S.C.A. Section 811(b)
19 (1981). The initial question becomes whether the substance
20 should be classified under the CSA in the first place. In
21 answering this question, the Attorney General must consider eight
?2 factor s :
::3 (i) Its actual or relative potentialfor abuse.
24 (2)Scientific evidence of its
pharmacological effect, if known.
25 (3) The state of current scientific
knowledge regarding the drug or other2S substance.
(4) Its history and current pattern of•_ abuse
(5) The scope, duration, and
26 significance of abuse.
(6) What, if any, risk there is to the
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I public health.
(7) Its psychic or physiological
2 dependence liability.(8) Whether the substance is an
3 immediate precursor of substance already
controlled under this subchapter.4
5 21 U.S.C.A. Section 811(c) (1981).
6 The Attorney General also must request from the
7 Secretary of the Department of Health and Human Services a
8 scientific and medical evaluation of the substance and the
9 Secretary's recommendations with respect thereto. 21 U.S.C.A.
10 Section 811(b) (1981). The CSA provides in detail those
11 considerations required of the Secretary.
12 If the Attorney General determines that these facts and
13 all other relevant data constitute substantial evidence of
14 potential for abuse such as to warrant control, or substantial
15 evidence that a substance should be removed from control, then he
18 shall initiate proceedings for removal or control under the CSA.
17 21 U.S.C.A. Section 811(b) (1981). In doing so, the Attorney
18 General must fully comply with the Administrative Procedures Act.
19 5 U.S.C.A. Sections 551-559. 21 U.S.C.A. Section 811(a) (1981).
20 In addition, the Attorney General must provide notice in the
21 Federal Register and provide an opportunity for hearings on the
22 petition of any interested party. 21 U.S.C.A. Section 811(a)
23 (1981): 5 U.S.C.A. Section 552 (1977).
24 Once the Attorney General determines that a substance
25 should be controlled, the question then becomes the appropriate
26 classification. Before a substance may be propertly classified
27 in a given schedule under the CSA, the Attorney General must make
28 three additional findings, which vary according to the different
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I schedules. 21 U.S.C.A. Sections 811(a), 812(b) (1981). For
2 example, before a substance can be placed in Schedule l, it must
3 be established that:
4 (A) The drug or other substance has a
high potential for abuse.5 (B) The drug or other substance has no
currently accepted medical use in treatment6 in the United States.
(C) There is a lack of accepted safety
7 for use of the drug or other substances under
medical supervision.8
9 21 U.S.C.A. Section 812(b)(i) (1981).
10 On July 10, 1973, the then acting Attorney General
11 delegated the functions vested in him under the "Comprehensive
12 Drug Abuse Prevention and Control Act of 1970" to the DEA. 38
13 Fed. Reg. 18380 (1973). See 28 C.F.R. Section 0.100(b) (1985)
14 (as amended Oct. 27, 1981, 46 Fed. Reg. 52348). The current U.S.
15 Attorney General, however, has never expressly subdelegated the
16 1984 amendment to the 1970 act (Section 811(h) - temporary
17 scheduling in Schedule I for emergency purposes) to the DEA.
18 On July 27, 1984, the DEA published a notice in the
19 Federal Register that it intended to place MDMA in Schedule I
20 pursuant to CSA section 811(a). 49 Fed. Reg. 30210 (1984).
21 This notice engendered considerable public comment, and the DEA,
_ in accordance with the terms of the Admininstrative Procedures
23 Act, proceeded to hold public hearings and elicit scientific
24 experiments with respect to MDMA. In November, 1984, the DEA's
25 Administrative Law Judge, FRANCIS L. YOUNG, was directed to
26 conduct a hearing regarding the appropriate scheduling of MDMA,
..'-.7 and to make a recommendation to the DEA regarding the permanent
28 classification, if any, of MDMA, under the CSA.
8
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I On October 12, 1984, the Comprehensive Crime Control
2 Act of 1984 went into effect. Pub. L. No. 98-473. 98 Stat. 2071,
3 reprinted in 1984 U.S. Code Cong. & Ad. News 3182. In that Act,
4 Congress amended the CSA, among other things, by adding section
5 811 (h). Dangerous Drug Diversion and Control Act of 1984. Pub.
6 L. No. 98-473, Title Ii, Section 508, 98 Stat. 2071 (1984).
7 Subsection (h) grants the Attorney General "emergency powers" to
8 temporarily classify substances under Schedule I without
9 compliance with the procedures set forth in CSA sections 811 and
10 812, and without regard to the Administrative Procedures Act. 21
11 U.S.C.A. Section 811(h) (West Supp. 1986). Temporary scheduling
12 is not provided for Schedules II through IV, inclusive.
13 On May 31, 1985, the DEA published a notice in the
14 Federal Register announcing its intention to temporarilyplace
15 MDMA in Schedule I pursuant to the emergency provisions of CSA
16 section 811(h). 50 Fed. Reg. 23118-20 (1985) (amended July 12,
17 1985, to correct a misspelling of the compound in the original
18 notice, 50 Fed. Reg. 28395-97). The May 31 notice
19 simulataneously published the text of the order to take effect
20 July i, 1985. The order was to remain in effect until July i,
21 1986, unless rescinded or superseded by a permanent
22 classification.
23 Meanwhile, the participants of the proceeding on the
24 permanent classification of MDMA requested Judge Young to decide
25 a preliminary legal issue: namely, whether a substance that has
26 potential for abuse and no currently accepted medical use in the
27 United States can be placed in any schedule other than Schedule
28 I. On June i, 1985, Judge Young issued his decision on this
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I preliminary question. In the Matter of MDMA Schedulinq, Op. and
2 Recommended Decision on Preliminary Issue, Justice DEA. No. 84-48
3 (June i, 1985) (A copy of this opinion is attached to Defendant's
4 Motion to Dismiss as "Exhibit "A" and is incoporated herein by
5 reference.) Essentially, Judge Young recommended to the
6 Administrator of the DEA that:
7 (A) substance which has a potential for
abuse less than a high potential, and no8 currently accepted medical use in treatment
in the United States, cannot lawfully be9 placed in any of the five schedules
established by the Controlled Substances Act
10 of 1970. The terms of the Act do not permitit. No amount of pouring over the
11 legislative history empowers us to close the
obvious gap left in the statutory scheme.12
13
If, however, the Acting Administrator rejects14 the above recommendation, the administrative
law judge recommends, in the alternative,15 that the Acting Administrator decide that a
substance having (i) a potential for abuse
16 less that a high potential, and (2) nocurrently accepted use in medical treatment
17 in the United States, should be placed in
either Schedule III, IV or V depending upon18 the substance's degree of potential for
abuse. This alternative recommendation is
19 based upon the opinions of the Federal Courts
in the District of Columbia and the Eighth20 Circuit .... the intent of Congress as
revealed by its own actions and by the21 legislative history of the Controlled
Substances Act of 1970, and on DEA's previous
?2 indications of its understanding of what thestatute permits it to do.
24 Id. at 21-22 (original emphasis).
25 On May 22, 1986, Judge Young issued his opinion and
26 recommended Ruling,'etc., recommending that MDMA be placed in
_- Schedule III. (A copy of that opinion is attached hereto marked
26 Exhibit "B" and is incorporated herein by reference.)
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I Notwithstanding the opinion of Judge Young, on June 17,
2 1986, the DEA published a further notice in the Federal Register
3 announcing its intention to extend the temporary emergency
4 placement of MDMA in Schedule I for six months or until the
5 proceedings initiated pursuant to the rulemaking process were
6 completed, whichever comes first. 51 Fed. Reg. 21911 (1986).
Z On October 14, 1986, the DEA published its final rule
8 placing MDMA into Schedule I of the CSA. 51 Fed. Reg. 36552-60
9 (1986).
10 Defendants McLAUGHLIN and BERNAUER were indicted on
11 August i, 1986 for alleged conduct which occured on or about July
12 21, 1986, within the extension of the emergency placement of MDMA
13 in Schedule I.
14 II.
15 THE ADMINISTRATOR OF THE DRUG ENFORCEMENT ADMINISTRATIONCANNOT LAWFULLY CLASSIFY MDMA IN SHEDULE 1
16 UNDER THE EMERGENCY PROVISION IN SECTION 811 (h)
17 A. Section 811 (h) Represents an
Unconstitutional Delegation by18 Congress of Leqislative Powers
to the Executive Branch of the
19 Government_ the Attorney General
20 Article i, Section 1 of the United States Constitution
21 provides that "[a]ll legislative Powers herein granted shall be
22 vested in a Congress of the United States, which shall consist of
23 a Senate and House of Representatives." Article i, Section 8,
24 paragraph 18 provides that Congress shall be empowered "to make
25 all Laws which shall be necessary and proper for carrying into
26 Execution its general powers. "
27 The United States Supreme Court has held that a
28 delegation of authority by Congress is constitutionally
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I permissible provided that Congress "clearly deli'neates the
2 general policy, the public agency which is to apply it, and the
3 boundaries of this delegated authority." American Power & Light
4 Co. v. Securities & Exchange Commissicn. 329 U.S. 90, 105
5 (1948). Thus, Congress may validly empower an administrative
6 agency to promulgate rules or regulations, violations of which
7 may be subject to criminal sanctions, provided that the
8 delegation is accompanied by sufficient guidelines and standards
9 for the exercise of the authority. Avent v. United States, 266
10 U.S. 127, 130-31 (1924); McKinley v. United States, 249 U.S.
11 397 (1919); United States v. Grimaud, 220 U.S. 506, 512-14
12 (1911) ; United States v. Davis, 584 F.2d 840, 843-44 (9th Cir.
13 1977), cert. denied, 434 U.S. 1015 (1978). However, the need for
14 stringent guidelines is particularly acute where criminal
15 penalties are involved. See, e.g.. United States v. Smith, 740
16 F.2d 734 (9th Cir. 1984).
17 While the constitutionality of the delegation of
18 authority to schedule drugs under section 811(a) (the provision
19 for permanent scheduling) has been unsuccessfully challenged, the
20 delegation was upheld only because the Attorney General's
21 authority was carefully limited and defined. See, e.g.. United
22 States v. Davis, 564 F.2d 840, 843-44 (9th Cir. 1977), cert.
23 denied, 434 U.S. 1015 (1978); United States v. Gordon, 580 F.2d
24 827, 839-40 (5th Cir.) cert. denied sub nom.. Garcia v. United
25 States, 439 U.S. 1051 (1978); United States v. Barton, 594 F.2d
26 1345, 1352-53 (10th Cir.), cert. denied, 441 U.S. 951 (1979) ;
27 United States v. Porter, 554 F.2d 935, 939-40 (Sth Cir. 1976);
28 United States v. Pastor, 557 F.2d 930, 941 (2d Cir. 1977);
12
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I United States v. Piatti, 416 F. Supp. 1202 (E.D.N.Y. 1976). Cf
2 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (delegation of
3 authority with unfettered discretion unconstitutional); accord
4 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495
5 (1935).
6 In Davis, the court stated that there are "sufficient
7 guidleines and standards expessed in the language of 21 U.S.C.
8 (section) 811 itself (see subsections (b) and (c) of Section
9 811), in addition to the application of the protection of the
10 Administrative Procedure Act." Davis, 584 F.2d 787, 790 (7th
11 Cir. 1977).
12 Defendants McLAUGHLIN and BERNAUER respectfully submit
13 that, in these cases, the circuit courts of appeals have
14 improperly construed the holdings of the United States Supreme
15 Court, and that the delegation of authority to the Attorney
16 General under section 811 violated the Due Process Clause and the
17 Doctrine of the Separation of Powers. Defendants base this
18 assertion on the fact that the Attorney General is not merely
19 promulgating rules and/or regulations when he adds substances to
20 the CSA, but rather, the Attorney General creates law when he
21 exercises the power. The Attorney General, as a law enforcement
72 officer, should not be permitted to determine the laws and their
_3 resultant penalties, particularly when the penalty may result in
24 fifteen years of imprisonment. That is strictly a legislative
25 function, which under the Constitution, may be exercised only be
26 Congress itself.
Even assuming, arguendo, the delegation under section
26 811(a) is constitutional, the delegation under section 811(h) is
I!' 13
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I not. The majority of the detailed procedures mandated under
2 sections 811 and 812 of the CSA are not required under section
3 811(h). Since the stringent guidelines and procedures are
4 precisely the justification for upholding the constitutionality
5 of the delegation under section 811(a), and they are omitted from
6 811(h), its constitutionality is not supported by case law, and,
7 in fact, would not withstand constitutional s_rutiny as set forth
8 by the Supreme Court in Panama, Schechter, Avent, Mckinley, and
9 Grimaud. See e.g.. Pastor, 557 F.2d at 942 (the detailed
10 procedures of section 811(a), (b), and (c) are precisely the
11 "checks" that ensure that the Attorney General's role will not be
12 used unfairly). Subsection _) is therefore unconstitutional on
13 its face because the delegation of authority fails to create
14 adequate safeguards for the exercise of that authority, resulting
15 in a denial of due process.
16 The temporary classification scheme of subsection (h)
17 differs from the permanent classification system in the following
18 ways :
19 I. The Attorney General may place a substance in
20 Schedule I without regard to the medical and scientific
21 evaluations of the Secretary of Health and Human Services. He
22 must merely take into consideration any comments submitted by the
23 Secretary in response to the notice of proposed scheduling of the
24 substance. Under the permanent scheduling authority, however,
25 the Attorney General is bound by the Secretary's medical and
26 scientific evaluations which are based on the eight factors set
27 forth in section 811(c).
28 2. Under subsection (h), the Attorney General need
14
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I consider only three factor;s in determining that a substance
2 should be controlled, contrasted with the eight factors in
3 811(c). The Attorney General does not have to consider
4 scientific evidence of the substance's pharmacological effect or
5 its phychic and/or physiological dependence liability.
6 3. There is no opportunity for a hearing under
T subsection (h). The Attorney General merely has to issue his
8 order thirty days after publication of a notice in the Federal
9 Reg iste r.
10 4. Judicial reiew of the order is specifically
11 precluded.
12 The prohibition of judicial review is particularly
13 egregious when coupled with the lack of standards and guidelines
14 for exercising this authority because it heightens the
15 potential for abuse of discretion by the Attorney General.
16 "Unreviewability gives the executive a standing invitation to
17 disregard ... statutory requirements and to exceed the powers
18 conferred ....'" Ralpho v. Bell, 569 F.2d 607, 617 (D.C. Cir.
19 1977) (quoting B. Schwartz, Administrative Law, Section 147 at
20 149 (1976)).
21 A thorough analysis of the CSA makes clear that, under
22 subsection (h), the Attorney General has nearly limitless
23 authority to classify substances a controlled and thirty days
24 later to prosecute those who possess the substance. Although
25 section 811 sets forth detailed criteria for determining what
26 substances should be" controlled, the Attorney General is free to
27 ignore the majority of them by using the emergency authority of
28 subsection (h). Thus, serious criminal offenses can be created
15
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I by the publication of two notices in the Federal Register, and in
2 this case, only one notice. The harsh penalties provided make
3 the criterion of this criminal offense too important to depend
4 upon the whim of one official.
5 The danger of enacting criminal statutes through complex
6 regulatory schemes was recognized in United States v. Lizarraqa-
7 Lizarra_a, 541 F.2d 826 (9th Cir. 1976). In that case, the Ninth
8 Circuit found it necessary to read into the criminal statutes the
9 defense of ignorance of law. The court's concern stemmed from
10 the fact that through administrative regulations, a number of
11 items not typically thought of as unlawful suddenly had become
12 just that. It is an open invitation to abuse by the executive
13 which is worsened in a situation such as this, where there are
14 not adequate safeguards.
15 Thus, the fact that the criminal offense is created by
16 a regulatory authority cannot be overemphasized. That is the
17 very reason the guidelines and procedures are necessary in the
18 first instance. Without such standards and boundaries, the
19 executive cannot constitutionally legislate as has been done
20 he re.
21 B. The Failure of the Attorney General
to Subdele_ate the Emergency Powers
2? of 811 (h) to the DEA Invalidates theDEA's Emergency Scheduling of MDMA
23 as a Schedule I Substance
24 Assuming ar_uendo that Congress may validly delegate to
25 the Attorney General certain legislative functions, and that the
26 Attorney General may properly confer that power on the
Z? Administrator of the DEA, the Attorney General has never
28 delegated to the DEA the emergency powers to classify substances
16
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I temporarily under Schedule I. The emergency temporary scheduling
2 power set forth in section 811(h) is vested solely in the
3 Attorney General and has never been delegated to the DEA. Since
4 the temporary emergency classification of MDMA under section
5 811(h) was effectuated by the DEA, and not the Attorney General,
6 the classification is void ab initio. Accordingly, since MDMA
7 was not otherwise classified, there existed no such offense
8 against the United States, and these counts relating to BERNAUER
9 and McLAUGHLIN should be dismissed.
10 The Administrator of the DEA claims that the Attorney
11 General delegated the responsiblility for scheduling substances
12 under the Act to the DEA under Chapter 28, C.F.R., section
13 0.100(b). Federal Register, Vol. 50, No. 105, p. 23118-20 (May
14 31, 1985). However, CFR section 0.i00, by its own terms, only
15 conferred to the DEA authority to conduct the functions vested in
16 the Attorney General by the Comprehensive Drug Abuse Prevention
17 and Control Act of 1970 (hereinafter referred to as the Drug Act
18 of 1970). While the Drug Act of 1970 authorized the Attorney
19 General to classify substances under the Controlled Substances
20 ACt as provided therein, it did not provide for temporary
21 scheduling as in this case. Rather, the temporary scheduling of
22 substances was not auhorized by Congress until 1984 in the
23 Dan@erous Drug Diversion and Control Act of 1984, Pub. L. No. 98-
24 473, Title ii, Section 508, 98 Stat. 2071 (1984). The only
25 subdelegation to DEA occured in 1973 for The Drug Act of 1970.
28 Therefore, the "emergency powers" conferred on the
27 Attorney General in The 1984 Act could not have been subdelegated
28 to the DEA in 1973 because they did not then exist.
17
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I This is the only appropriate construction of the
2 statutory scheme because "penal statute(s) should be strictly
3 construed against the government or parties seeking to exact
4 statutory penalties and in favor of persons on whom such
5 penalties are sought to be imposed." Sutherland, Statutory
6 Construction, Section 59.03, at 6-7. See also United States v.
7 Bass, 404 U.S. 336 (1971)(ambiguity concernlng the ambit of
8 criminal statutes should be resolved in favor of lenity") Bell v.
9 United States, 349 U.S. 81 (1955).
10 Not a single provision pruports to authorize the DEA to
11 perform this new function of emergency classification. It is
12 fundamental that an executive agency cannot exercise powers which
13 have been actually delegated to the agency. United States v.
14 Giordano, 416 U.S. 505 (1974). (The subdelegation of authority
15 by the Attorney General to one not specifically authorized under
IB a wiretap statute was held invalid, notwithstanding a statute
17 authorizing the Attorney General to delegate any of his functions
18 to other agencies or employees of the Department of Justice).
19 Certainly if the Attorney General has authority to
20 subdelegate his authority, it must be by virtue of such
21 affirmative act of subdelegation. Congress has never expresed an
22 intent to permit the Attorney General's subdelegees to assume,
23 without the official subdelegation of such powers by the Attorney
24 General, the powers that have been vested exclusively and
25 explicitly in the Attorney General.
26 Accordingly, the failure of the Attorney General to
27 affirmatively subdelegate the emergency scheduling provision of
28 811(h) to the DEA, invalidates the unauthorized classification of
18
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I MDMA as a Schedule I substance. Dismissal of these charges is
2 the only remedy.
3 Finally, defendants bring to the Court's attention a
4 case from the District of Colorado, wherein United States of
5 America v. Pees and McNeil, NO. 86-CR-153 (D. Colo. 1986), Judge
6 Kane in his wirtten ruling granted Pees' Motion to Dismiss on
7 these very grounds, finding that there was no'subdelegation of
8 emergency powers by the Attorney General. While the ruling of
9 Judge Kane is, as yet unpublished, and of no binding
10 precendential effect, defendants' nonetheless append it to this
11 motion as Exhibit "C" for this Court's consideration.
12 III.
13 THERE IS NO RATIONAL BASIS FOR T_2_PORARY CLASSIFICATIONOF SUBSTANCES IN SCHEDULE I AS SET FORTH IN 811 (h)
14
15 The clear purpose behind section 811 (h) is to allow
16 temporary scheduling under the CSA of substances when necessary
17 to avoid an imminent hazard to public safety pending the
18 admministrative hearings on permanent classification. While the
19 legislative intent is laudible, the subsection, as enacted, is
20 unconstitutional because there is no rational basis for (a)
21 requiring the temporary classification to be in Schedule I, and
?2 (b) allowing the invocation of the power without regard to
.:3 appropriate criteria. As such, the law results in a denial of
24 due process.
25 A. There is No Rational Basis For Requiring
The Temporary Classification To Be in Schedule I
26
27 It is well settled that a law must reasonably relate to
26 the objectives sought before a rational basis will support its
19
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I constitutionality. "It is true that the guarantee of due process
2 is infringed if the means chosen by Congress to effectuate a
3 public interest are unnecessary or inappropriate to the proposed
4 end, are unreasonably harsh or oppressive, when viewed in the
5 light of the expected benefit, or arbitrarily ignore recognized
6rights ... Beltman v. Cohen, 303 F. Supp. 889 (N.D. Cal. 1969)
7 (citing Helvening v. City Bank Farmers Trust Co., 298 U.S. 85, 90
8 (1975)).
9 Subsection (h) does not reasonably relate to the
10 objective sought because it mandates the Attorney General to
11 place in Schedule 1 all substances temporarily classified under
12 its provision. 21 U.S.C.A. Section 811(h)(i) (West Supp. 1986).
13 Thus, it does not allow the Attorney General the option of
14 placing a substance in any of the other schedules provided in 21
15 U.S.C.A. Section 812. This legislative response to the alleged
16 proliferation of "designer drugs" is arbitrary, capricious, and
17 unreasonable because the less draconion measure of allowing the
18 Attorney General to classify drugs in more appropriate schedules
19 was available to Congress.
20 By limiting the emergency classifications to Schedule
21 I, Congress not only subjects violators to some of the most
22 severe penalties in existence under federal law, including, under
23 some circumstances, life imprisonment, 21 U.S.C.A. Section 848,
24 but Congress also halts all ongoing and future scientific,
25 medical and clinical testing and research of the classified
2_ substances.
27 The Legislative history indicates unequivocally that
28 Congress did not intend for violators of the temporary law to be
2O
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I punished with the harsh penalties normally attendant Schedule I
2 offenses:
3 If a substance is subject to the
temporary control provided in new subsection
4 (h) of 21 U.S.C. 811, the penalty for its
illegal manufacture, distribution,
5 dispensing, or possession with intent to
engage in such conduct, is to be treated the
6 same as that provided in 21 U.S.C.
841(b) (i) (C) for Schedule III substances.7
8 S. Rep. No. 225, 98th Cong. 2d Sess., reprinted in 1984 U.S. Code
9 Cong. & Ad. News 3182, 3446.
10 In addition, the legislative history indicates that the
11 emergency classification power was intended to be limited to
12 controlling substances with no currently accepted medical use in
13 the United States, H.R. Rep. No. 835 Part l, 98th Cong.. 2d Sess.
14 l0 (June 12, 1984). This decision of the Subcommittee was based
15 on significant concerns about the impact an emergency scheduling
16 authority would have on the manufacture and distribution of drugs
17 that are currently used in legitimate madical settings. Id.
18 In examining the particular substances
for which the scheduling action was most
19 necessary, the Subcommittee concluded that
limiting the authority only to substances
20 that have no currently accepted medical usein treatment addressed both the legitimate
21 concerns of those in the health care industry
and the principal danger to the public?2 health.
.IZ Id.
24 It is not clear why Congress failed to enact the law as
25 originally intended. However, based upon the foregoing, it is
26 clear that the means chosen by Congress to effectuate the public
z? interest is unecessary and inappropriate to the proposed end, and
26 is unreasonably harsh and oppressive. The purpose of the statute
- 21
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I could just as easily be served by permitting classifications in
2 other schedules, which would thereby enable and/or facilitate
3 needed research to continue. Accordingly, section 811 (h), as it
4 exists, violates due process and the statue must be struck down.
5 B. There Is No Rational Basis For Allowing
The Invocation of The Emergency Power6 Without Regard to Appropriate Criteria
7 The fact that Congress intended 60 expedite the
8 controlling of substances when there is an imminent threat to
9 public safety does not justify granting emergency power to
10 classify substances in Schedule I without regards to appropriate
11 criteria set forth in section 811(b). As seen above, the
12 Attorney General may invoke the emergency power clause of
13 subsection (h) without regard to medical and scientific
14 evaluations, without regard to a drug's actual or relative
15 potential for abuse, without regard to scientific evidence of its
16 pharmacological effect, if known, without regard to the state of
17 current scientific knowledge regarding the drug, without regard
18 to its psychic or physiological dependence liability, and without
19 regard to whether the substance is an immediate precursor of a
20 substance already controlled under the CSA.
21 By eliminating considerations of medical and scientific
22 data, and abrogating the comparison of relative abuse, Congress
23 has left the executive with virtually unfettered discretion to
24 place substances in Schedule I by simply declaring that there is
25 "an imminent hazard to the public safety" on the subjective
26 evaluation of "actual abuse." One is left only to guess how such
27 a determination can reasonably be made.
28 Thus, the ambiguous criteria with which the Attorney
)2
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I General is supposed to base his decision do not provide a
2 rational basis for declaring a substance unlawful on nothing more
3 than a notice in the Federal Register. They certainly do not
4 provide a rational basis for mandating inclusion of a substance
5 in Schedule I, amongst the most dangerous drugs in society with
6 no accepted medical use whatsoever.
Z Furthermore, by definition, drugs should not be
8 included in Scheudle I unless there is no currently accepted
9 medical use for the drug in the United States and the drug has a
10 high potential for abuse relative to the drugs in the other
11 schedules. 21 U.S.C.A. Section 812 (b) (1981). Thus, it is
12 completely irrational to include substances in the most
13 restrictive schedule without regard to the definitional
14 characteristics of the schedule. Therefore, determinations to
15 exercise the emergency power are per se unreasonable and
16 oppressive, in violations of due process.
17 IV.
18 THE EXTENSION OF THE EMERGENCY SCHEDULING OF MDMA
BY THE DEA WAS ARBITRARY AND CAPRICIOUS19 IN VIOLATION OF DUE PROCESS
20 On May 22, 1986, the Administrative Law Judge, for the
21 DEA, Francis L. Young, issued his final decision in the case of
22 In the Matter of MDMA SCHEDULING, Docket No. 84-48 (attached
23 hereto as Exhibit B). Judge Young recommended that MDMA be
24 placed in Schedule III. After an extensive and thorough
25 examination of all the evidence, Judge Young found that MDMA has
26 a currently accepted medical use in treatment in the United
27 States, that there is no "lack of accepted safety for use" of
28 MDMA "under medical supervision," and that MDMA does not have a
23
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I "high" potential for abuse. Based on those findings Judge Young
2 held that the only proper schedule for MDMA is Schedule III.
3 Thereafter, on June 17, 1986, the DEA published its
4 extension of the emergency scheduling of MDMA in Scheudle I for
5an additional six months or until the conclusion of the
6rulemaking process, whichever comes first. 51 Fed. Reg. 21911
7 (1986).
8 The decision of the DEA Administrator to continue the
9emergency scheduling of MDMA as a Schedule I substance in light
10 of the opinion of its Administrative Law Judge to the contrary
11 lends substantial support to defendants' contention that the DEA
12 Administrator exercised his discretion, if any he had - See
13 Discussion at IV. B. supra, in an arbitrary and capricious manner
14 as to the extension of the emergency schedule of MDMA.
15 Instructive of the discretion that an administrative
16 agency is required to exercise before taking action are cases
17 construing the Administrative Procedure Act, 5 U.S.C. Section
18 706(2)(A) which provides for reversal of agency actions that are
19 "arbitrary, capricious [or] an abuse of discretion."
20 Along that line, in early 1971, the Supreme Court
21 announced that the presumption of regularity to which an agency
22 head's decision is entitled "is not to shield his action from a
23 thorough, probing in-depth review." Citizens to Preserve Overton
24 Park v. Volpe, 401 U.S. 402, 415 (1971). Further, the Court went
25 on to say that:
26 The court is first required to decide
whether the Secretary acted within the scope27 of his authority. (Citation.) This
determination naturally begins with a
28 delineation of the scope of the Secretary'sauthority and discretion. (C_ta_ _on_) . . .
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I
Scrutiny of the facts does not end, however,2 with the determination that the Secretary has
acted within th scope of his statutory
3 authority. Section 706(2) (A) requires a
finding that the actual choice was made not
4 "arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance
5 with the law." Id., at 415-16.
6 The Supreme Court remanded that matter in Overton Park to the
7 district court for "plenary review of the Secretary's decision."
8 In so doing, the Court noted that such review was to be based on
9 the full administrative record that was before the Secretary at
10 the time he made his decision. In addition, the court imposed
11 the following, and unprecedented, requirement:
12 [S]ince the bare record may not disclose thefactors that were considered or the
13 Secretary's construction of the evidenceit
may be necessary for the Distric Court to
14 require some explanation in order to
determine if the Secretary acted within the
15 scope of his authority and if the Secretary's
action was justifiable under the applicable16 standard.
IZ The court may require the administrative
officials who participated in the decision to
18 give testimony explaining their action. Ofcourse, such inquiry into the mental
19 processes of administrative decisionmakers is
usually to be avoided.
20 United States v. Morgan, 313 U.S. 409, 422(1941). And where there are administrative
21 findings that were made at the same time asthe decision, as was the case in Morgan,
?2 there must be a strong showing of bad faith
or improper behavior before such inquiry may_;3 be made. But here there are not such formal
findings and it may be that the only way24 there can be effective judicial review is by
examining the decisionmakers themselves. See
25 Shau_hnessy v. Accardi, 349 U.S. 280 (1955).
__6 The Ninth "Circuit has followed this approach and
?'7 permitted "exploration" of agency decision-making. Asarco, Inc.
26 v.U.S. Environmental Protection Agency, 616 F.2d 1153, 1159 (9th
J;
25
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I Cir. 1980); Kunaknana v. Clark, 742 F.2d 1145, 1149 (9th Cir.
2 1984).
3 An agency is under a clear obligation to examine the
4 relevant data prior to issuing an agency rule or decision.
5 il Failure to consider an important aspect of the problem will
e lJ render an agency action arbitrary and capricious. Motor Vehicle
7 Manufs. Ass'n v. State Farm Mutual Automobile Insur. Co., 463
8 U.S. 29, 42-43 (1983). See also Electricity Consumers Resource
9 Council v. FERC, 747 F.2d 1511, 1518 (D.C. Cir. 1984) (order
10 vacated where agency failed to consider relevant factors and to
11 articulate a reasonable basis for its decision); Asarco_ Inc. v.
12 U.S. EPA, supra (court went outside agency record to evaluate
13properly whether agency acted arbitrarily and capriciously by
14 failing to consider all relevant factors and found agency inquiry
15 inadequate and remanded the matter to the agency); RSR Corp. v.
18 EPA, 528 F. Supp. 1251 (N.D. Tex. 1984) (agency's failure to
17 consider important aspects of problem rendered its decision
18 arbitrary and capricious).
Ig An agency must articulate a satisfactory explanation
20 for its actions, including a rational connection between the
21 facts found and the choices made. Motor Vehicle Manufs. Ass'n
22 v. State Farm Mutual Automobile Insur. Co., 463 U.S. 29, 43
23 (1983). Agency action is arbitrary and capricious if the agency
24 offers an explanation that runs counter to the evidence before
25 the agency. Id.
28 In the instant case, the DEA's decision to extend the
27 emergency scheduling of MDMA as a Schedule I substance beyond
28 July i, 1986, was after receiving the final opinion of Judge
26
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I Young, an arbitrary and capricious exercise of agency action that
2 should not be sustained.
3 V.
4 THE EMERGENCY SCHEDULING OF MDMA BY THE DEA
WAS NOT NECESSARY TO AVOID AN5 IMMINENT HAZARD TO THE PUBLIC HEALTH
6 Assuming, arguendo, that the DEA Administrator could
Z lawfully classaify a substance in Schedule I under the emergency
8 provision in section 811 (h), such scheduling of MDMA was an
9 abuse of discretion because it was not necessary to avoid an
10 imminent hazard to the public safety. Additionally, the findings
11 of the DEA necessary to classify MDMA in Schedule I fly in the
12 face of the DEA's own Administraive Law Judge and the
13 overwhelming evidence known to the DEA at the time of the initial
14 order and certainly at the time of the emergency extension
15 published on June 17, 1986 following the May 22, 1986 opinion of
16 Judge Young. Thus, the DEA's order temporarily classifying MDMA
17 in Schedule I and the subsequent emergency extension should be
18 struck down, and the charges relating thereto against McLAUGHLIN
19 and BERNAUER should be dismissed.
20 Subsection (h) expressly provides that the Attorney
21 General may place a substance in Schedule I on a temporary basis
_ only when necessary to avoid an imminent hazard to the public
23 safety. 21 U.S.C.A. Section 811(h) (i) (West Supp. 1986). The
24 legislative history also indicates that where drugs are
25 investigationally new, the power should be exercised only in
26 extraordinary situations. "The Committee does not envision the
17 emergency scheduling procedure used to control such drugs except
28 in the most unusual circumstances inflicting a most serious
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I danger to the public health." H.R. Rep. No. 835 Part I, 98th
2 Cong. 2d Sess., 13 (June 12, 1984).
3 When the DEA Administrator announced his intention to
4 temporarily classfiy MDMA in Schedule I, the Administrator
5conclusively stated that MDMA poses an imminent hazard to the
6public safety. 50 Fed. Reg. 23118 (1985). The notice quotes a
7provision in the House Report accompanying the new law) H.R.
8 Rep. No. 835, that the emergency scheduling is intended to apply
9 to "what has been called 'designer drugs, new chemical analogs
10 or variations of existing controlled substances, which have a
11 psychedelic, stimulant, or depressive effect and have a high
12 potential for abuse." Id. The notice further quoted the House
13 Report that the provision may apply to "substances which have
14 been known to chemists for some time, (which) are 'discovered' by
15 illicit drug researchers to have psychedelic affects." Id. The
16 Administrator then concluded that "3,4-Methylene-dioxy-
17 methamphetamine (MDMA) is such a so-called designer drug ...
18 which Congress clearly intended to be considered for emergency
19 scheduling. " Id.
20 However, from the same House Report, it is quite
21 evident that drugs such as MDMA were not intended to be subject
22 to the emergency scheduling absent "the most unusual
23 circumstances inflicting a most serious danger to the public
24 health." H.R. Rep. No. 835 Part I, 98th Cong. 2d Sess., 13 (June
25 12, 1984) .
26 Furthermore, MDMA is not really a "designer drug,"
27 since "designer drugs" are new psychotropic substances developed
28 by underground chemists seeking to evade the controls on specific
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I compounds by altering slightly the chemical composition of
2 controlled substances. See Shafer, "The War on Drugs is Over,
3 The Government has Lost,". Inquiry, February 1984, p. 14 MDMA,
4 on the other hand, is not a "street drug" developed to escape the
5 federal drug laws. Rather, MDMA is a therapeutic drug which has
6 been around long before the CSA ever went into effect, and is
7 used by Psychiatrists in a legitimate medical setting. See Brain
8 Mind Bulletins, Frontiers of Research, Theory, and Practice, Vol.
9 10, Nos. 8 (April 15, 1985), 12 (July 8, 1985), Vol ll No. 1
10 (November 18, 1985). (Copies of relevant portions are attached
11 as Exhibit "D" and incorporated herein by reference.)
12 Substantial evidence was presented to the DEA and the
13 Administrative Law Judge during the proceedings in Washington
14 D.C. regarding the scientific and medical value of the drug.
15 Much of this information was known to the DEA prior to its
16 decision to temporarily classify MDMA in Scedule I and certainly
17 was known to the DEA prior to its extension of the emergency
18 scheduling. Judge Young's opinion cites chapter and verse
19 regarding the fact that the MDMA does have an "accepted medical
20 use in treatment in the United States." This opinion ws
21 presumably known to the DEA when the extension of the emergency
?2 scheduling was published, yet apparently was not considered.
?3 It appears that the Administrator relied totally and
24 exclusively on the fact that there was clandestine production of
25 MDMA and that there was some increasing advertisement of MDMA as
28 a euphoariant. From these "facts" the Administrator bootstrapped
_:? all of the other necessary findings.
26 The bottom ine is that there has been no evidence of
il
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I recurrent, long-term or habitual use of MDMA. Thus, it is
2 apparent that the DEA acted in an arbitrary and capricious manner
3 with regard to any authority it may have had under subsection (h)
4 when it attempted to classify MDMA is Schedule I under the guise
5 that MDMA posed an imminent hazard to the public health. The
6 evidence before the DEA, certainly at the time of the extension
7 of the emergency scheduling, shows that MDMA clearly did not pose
8 such a hazard. The fact of the matter is that the DEA saw fit to
9 circumvent the safeguards of 811 (a) by relying on the new powers
10 under section 811(h), perhaps because the overwhelming evidence
11 in the 811(a) proceeding and the decision of its Administrative
12 Law Judge require that MDMA should be placed in Schedule III.
13 (CF. 51 Fed. Reg. 36552-60 wherein the DEA published it final
14rule placing MDMA in Schedule I, notwithstanding the evidence to
15 the contrary. It is not clear what effect this final rule has on
!6 these proceedings, inasmuch as the current prosecution is based
17 on the extension of the emergency scheduling of MDMA. Leave is
18 requested to further brief this issue should the Court deem it
19 necessary. )
20 What is clear is that the DEA acted arbitrarily and
21unreasonably in making a finding that there was "an imminent
22 hazard to the public health" posed by MDMA both at the time of
23 the emergency scheduling and its extension, and that decision
24 violates the Due Process Clause of The Constitution.
25 CONCLUSION
26 Because the emergency classification of MDMA under 21
27 U.S.C.A. section 811(h) and its six month extension are
28 unconstitutional, and no other laws prohibit the possession,
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Isale, or distribution of MDMA, this court lacks jurisdiction in
2 the above-captioned matter and Defendants' Motion to Dismiss
3 shouid be granted.
4 While each of Defendants' grounds for dismissal
5 independently constitute a sufficient basis for a dismissal, the
6 combination of deficiencies associated with the joint action of
7 Congress, the Attorney General, and the DEA in this legislative
8scheme present an even more compelling case for dismissal. If
9 not exactly a seamless web of overreaching, it can clearly be
10 seen that each unconstitutional action in this case followed
11 naturally from another.
12 First, the arbitrary and unreasonable nature of the
13 Congresssional reaction to "designer drugs" as manifested in CSA
14section 811(h), coupled with its lack of criteria, guidelines,
15 and safeguards, issued a clear invitation to implement the
16 statute in an arbitrary and unreasonable manner, indeed to
17 implement this statute without any authority from the Attorney
18 General. Thus, the DEA found an easy path to forge ahead with
IS scheduling of MDMA despite substantial evidence within its
20 possession that MDMA did not present the imminent hazard to the
21 public safety contemplated in subsection (h), and despite the
_? decisions of its own Administrative Law Judge.
23 Second, the fact that Congress failed to provide a less
24 draconian method to remove substances having less than a high
25 potential for abuse from street traffic, compelled the DEA to set
26 forth grounds for classification that had no relation to
__7 scientific evidence.
28 Finally, this lack of safeguards-- notice, hearings,
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I and separate order -- resulted in a fatal error by the Attorney
2 General when he failed to subdelegate the authority for emergency
3scheduling to DEA. In other words, the DEA was invited to "shoot
4 from the hip." The DEA accepted and wound up shooting itself.
5 While the exact result may not have been predictable at the time
6 CSA section 811 (h) was enacted, the profusion of errors,
Z confusion and unconstitutional action of the DEA in this case can
8 come as no surprise.
9 Accordingly, Defendants McLAUGHLIN and BERNAUER
10respectfully request that this Court dismiss the McLAUGHLIN
11 Indictment and Count II of the BERNAUER Indictment.
12 DATED: October 29, 1986
13 Respectfully submitted,
14 LARSON & WEINBERG
16 By: _O/_0_/ _ _DORON WEINBERG _) DAVID W. DRATMAN
17 Attorney for Defendant Attorney for DefendantPAUL MICHAEL BERNAUER ROBERT MARK McLAUGHLIN
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