On September 4, 2009, Professor Lyle Craker, Ph.D.s ACLU Drug Law Reform Project lawyers filed the third Status Update with the U.S. Court of Appeals, First Circuit. The update reports on the DEAs lack of response to the witness and document list filed with the DEA on June 5, 2009, in support of Prof. Crakers Motion to Reconsider the DEAs Final Ruling. The lawyers are asking the Court to hold the appellate proceedings in abeyance until we learn the DEAs final decision. The DEAs final order was scheduled to go into effect July 1, 2009, but the DEA lawyers have previously indicated that it is not unusual to have a Motion to Reconsider still pending after the effective date of a final agency order.

For the first time since we began this court case in 2001, we are in alignment with the DEAs tactic of delay. We have read rumors that Obama is considering appointing new leadership at the DEA from outside of the current DEA. Hopefully, any new leadership replacing the Bush-holdovers who are still running the DEA will reverse the rejection of the Administrative Law Judge (ALJ)s recommendation to license Prof. Craker.

Crakers lawyers are required to file a status report with the Court of Appeals every 60 days until a decision is finalized by the DEA. These status report filings preserve Crakers right to appeal should the DEA deny him a license to grow marijuana for research purposes at UMASS Amherst, under contract to MAPS.

On June 5, Crakers lawyers filed potential witness and document lists regarding our pending Motion to Reconsider. On May 18, DEA filed an Interim Order requesting that Craker submit witness and document lists by June 5, 2009. DEA also extended the effective date of its final ruling to July 1, 2009, leaving it three weeks to consider whether or not to grant our Motion to Reconsider. On May 11, 2009, we asked the First Circuit, US Court of Appeals (where in a defensive maneuver we have filed a new lawsuit against DEA) to delay consideration of our case until after we learn how DEA responds to our pending Motion.

On April 29, Senators Kennedy and Kerry sent a letter to Deputy Attorney General David Ogden requesting that he take immediate action to delay DEAs final decision regarding Prof. Crakers application for a license to grow marijuana for research. This follows a similar letter sent on April 15 by Congressmen John Olver and Sam Farr requesting that Ogden intervene on behalf of Prof. Craker by asking the DEA to cease going forward on its May 1 deadline.

On April 13, the DEA filed its final response to Crakers March 11 Supplemental Motion To Reconsider and Exhibits submitted to DEA Deputy Administrator Michelle Leonhart, adding to a Motion to Reconsider filed January 30. These motions request a hearing to present opposing arguments to new evidence that DEA cited in its January 14, 2009, Final Order rejecting DEA Administrative Law Judge Bittners February 12, 2007 recommendation that Prof. Craker receive a license to grow marijuana for federally-licensed research. Prof. Crakers facility would be built at the University of Massachusetts Amherst and would be sponsored by MAPS.

On January 14, 2009, DEA issued a Final Order rejecting DEA Administrative Law Judge Bittner's February 12, 2007, recommendation that Prof. Craker receive a license to grow marijuana for federally-licensed research. Prof. Craker's facility would be built at the University of Massachusetts Amherst and would be sponsored by MAPS. Ending the federal monopoly on the supply of marijuana for research would be the beginning of a serious drug development effort aimed at transforming marijuana into an FDA-approved prescription medicine.

May 1, 2009, was the effective date of DEA's final ruling rejecting Prof. Craker's license. However, we have still heard nothing from DEA in response to Prof. Crakers Motion to Reconsider. Based on conversations between Allen Hopper, Prof. Crakers ACLU attorney, and Teresa Wallbaum, Acting Deputy Chief for Policy and Appeals, US Department of Justice, Criminal Division, Narcotic and Dangerous Drug Section, and also additional conversations between Senator Durbin's staff and DEA officials, we have learned that DEA review of the Motion to Reconsider is still pending and that DEA intends to issue a written order adjudicating the Motion. We also learned that it is not rare for Motions to Reconsider, like the one filed here, to be resolved even after so-called final orders have become effective. In other words, there is still some possibility that DEA may grant in part or in whole the still-pending Motion to Reconsider, which could significantly change the final order. As the saying goes, Its good to be the King, since you can ignore your own deadlines.

On May 11, 2009, Prof. Crakers lawyers filed an update in the First Circuit Court of Appeals. We have asked for a delay in consideration of our case until after we learn how DEA responds to our pending Motion, which they may accept or reject. On February 13, 2009, in a prescient defensive maneuver, Prof. Crakers attorneys filed a placeholder notice of appeal in the U.S. Court of Appeals for the First Circuit in Boston, preserving Prof. Crakers right to appeal just in case DEA eventually denies the Motion to Reconsider; such a denial would effectively end the administrative proceedings and retroactively finalize the already-published final order denying his application. On March 12, the Court granted Prof. Crakers attorneys request that the appeal be docketed but no further action be taken until such time as DEA rules on the Motion to Reconsider. The Court also ordered Prof. Crakers attorneys to file an update every 60 days about the status of the case, with May 11 being the due date for the first update. If DEA denies the Motion to Reconsider, the appeal process is already started and a briefing schedule will be set. If DEA grants in part or in whole the Motion to Reconsider, the attorneys will focus on presenting new information to DEA and can further postpone (or completely eliminate the need for) the appeal. We are hoping that new leadership at DEA appointed by President Obama will thoroughly review the administrative proceedings, perhaps allow the submission of additional information, and eventually grant Prof. Crakers application for a license to grow medical marijuana for FDA-approved research.

On April 29, 2009, Senators Kennedy and Kerry sent a letter to Deputy Attorney General David Ogden requesting that he take immediate action to delay DEA's final decision regarding Prof. Craker's application for a license to grow marijuana for research. This follows a similar letter sent on April 15 by Congressmen John Olver and Sam Farr requesting that Ogden intervene on behalf of Prof. Craker by asking DEA to cease going forward on its May 1 deadline. Since there has still been no final negative action by DEA, it appears these letters may have had an impact.

Now were back in waiting mode, with no deadline for DEA to file its decision regarding our Motion to Reconsider. Delay has always been DEAs preferred strategy. Until there is new leadership at DEA appointed by President Obama, delay is now our preferred strategy as well.]]>