In what could be viewed as a shot across the Drug Enforcement Administration’s bow, the United States Court of Appeals for the Second Circuit recently took the unusual action of retaining jurisdiction, despite affirming the trial court’s decision to dismiss the underlying lawsuit, to implore the DEA to act “promptly” in responding to requests to remove marijuana from Schedule I of the Controlled Substances Act (“CSA”).

In Washington v. Barr, a group of plaintiffs sought a ruling ordering the DEA to remove marijuana from Schedule I of the Controlled Substances Act. In what the Second Circuit described as “the latest in a series of cases” seeking to remove marijuana from Schedule I of the CSA, the trial court dismissed the case finding that the plaintiffs had not exhausted their administrative remedies for seeking de-scheduling prior to filing the lawsuit. In a 2-1 opinion, the Second Circuit agreed with the trial court’s decision, but not before noting that this case was distinguishable from prior attempts because this particular group of plaintiffs “plausibly allege that the current scheduling of marijuana poses a serious, life-or-death threat to their health.” The Second Circuit indicated it was “struck by the transformative effects [marijuana] has assertedly had on some Plaintiffs’ lives.”

The court went on to state that the plaintiffs “should not be required to live indefinitely with uncertainty about their access to allegedly life-saving medication or live in fear that pursuing such medical treatment may subject them or their loved ones to devastating consequences.” In an effort to prevent that from happening, the Second Circuit retained jurisdiction and exhorted the DEA to act promptly in its administrative duties to respond to any petitions to de-schedule marijuana that the plaintiffs may file. After noting that the past average time for the DEA to decide petitions seeking reclassification under the CSA has been nine years, the court warned that “what has counted as appropriate speed in the past may not count as appropriate speed here.”

Realistically there is little-to-no chance that the DEA will remove marijuana from Schedule I of the CSA absent federal legislation, but this opinion is a good barometer for where the country seems to be on the issue of legalizing marijuana, at least for medical use.