We welcome your views in the “comments” section at the end of this post.
See the decision of the Ninth Circuit on medical marijuana at http://www.thecre.com/quality/2010/20101014_regweek.html
Did the court rule against medical marijuana but in doing so did it reinforce the conclusions of the DC Circuit in Prime Time that the DQA guidelines are binding on agencies?
The court referred to the OMB DQA guidelines when stating that the process in the Controlled Substances Act governed the proceeding; it did not refer to the CSA as the governing statute.
In other words the court could have stated that the CSA alone trumped the DQA but it did not; it cited the OMB guidelines as the determining factor, just as was the case in Prime Time.
Or in the alternative, when the court stated:”“This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.” , is the court saying that the use of the DQA is not precedent setting?
Notwithstanding the above, are we back to the Prime Time interpretation that CRE made at http://www.thecre.com/quality/2010/20100414_regweek.html , namely that the DQA guidelines are binding since the the Ninth Circuit made a statement similar to that offered in Prime Time when it stated:
“However, both the Office of Management and Budget (“OMB”) and HHS guidelines, which Safe Access does not challenge, contemplate that under the IQA, HHS can use other administrative processes outside the procedure enacted pursuant to the IQA to address correction requests. Because HHS properly deferred its decision on Safe Access’s petition to an alreadypending alternative procedure, rather than reaching the merits of the petition, its decision is not reviewable final agency action.” ? ( Editors Note : no reference to CSA as governing).
Did the Ninth Circuit in ruling against medical marijuana do so by concluding that the DQA guidelines are binding on agencies?
If the Ninth Circuit came to the identical conclusion as did the DC Circuit, then there are two Circuit Courts which have stated that the DQA guidlines are binding on agencies.
See the Ninth Circuit Decision Below
Editors Note: See the very informative comment from Jamie Conrad below.
– Generally speaking, this case works exactly like the Prime Time case:
1) The court of appeals was presented with an appeal of a district court decision in which the lower court said that the IQA did not impose any legal duties upon the relevant agency, and so the lower court dismissed the case. In other words, the lower court in both Prime Time and ASA cases said that the statutory language “seek and obtain correction” really just meant “seek,” and so the agency could do what it wanted and the requester was out of luck.
2) The court could have said, as the Fourth Circuit did in the Salt Institute (I’m paraphrasing): “there is no cause of action directly under the IQA, or indirectly via the APA, so we uphold the lower court’s decision.”
3) But it DIDN’T — it granted jurisdiction, it heard the case, and it issued a decision. So, implicitly, both the DC and Fourth Circuits have acknowledged that there IS review of IQA appeals via the APA.
4) But both courts then found a way under the OMB/agency guidelines to let the agency nonetheless win. In Prime Time, the DC Circuit said the underlying proceeding fell into the IQA guideline exemption for adjudications. Here, the court said HHS was authorized by the IQA guidelines to use other existing mechanisms to address IQA correction requests. (The paradigm example of that exemption is rulemaking; if you file an IQA correction request in a rulemaking, the agency can treat it as a comment on the proposed rule.) So it’s really not an issue of any other law or process trumping the IQA.
– The DC Circuit decision had lots of great language about Chevron deference to the OMB guidelines and the guidelines being legally binding. There isn’t any comparable language in this decision, but it also doesn’t say anything bad about them. This is significant, because the district court had lots of disparaging language about how they were guidelines, not rules, but the 4th Circuit chose not to adopt it.
– The decision is not precedent in the 9th Circuit, except as it affects the parties. But as the Federal Rules of Appellate Procedure were amended in 2007, “unpublished” decisions like this can be cited in any federal court, and courts outside the Ninth Circuit, though not bound by them, are free to consider them for whatever persuasive power they have.
So this is a win
Editors Note: Mr. Conrad is a principal in Conrad Law and Policy Counsel and has served as Vice-Chair, ABA Section of Administrative Law & Regulatory Practice.
CRE has benefited from the comments of a number of experts in administrative law who have reviewed the ASA v. HHS decision of the Ninth Circuit. Based upon these reviews CRE concludes:
l. That the Ninth Circuit Decision parallels the recent Prime Time decision in that the Ninth Circuit has invoked the DQA in reaching a judicial decision.
2. The judicial precedents established by both decisions support an inference that
the DQA is judicially reviewable.
3 The fact that two divergent Circuit Courts have arrived at nearly identical
conclusions, albeit for different reasons, suggests that if the DC Circuit were to opine directly on whether the DQA is reviewable, it would do so in the positive.