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.