We have a decision regarding MAPS’ lawsuits against DEA and against HHS/NIH/NIDA regarding our claim of “unreasonable delay” in responding to MAPS-sponsored applications to NIDA to purchase 10 grams of marijuana for vaporizer research (submitted June 24, 2003), to DEA to import 10 grams of marijuana for vaporizer research from the Dutch Office of Medicinal Cannabis (submitted June 24, 2003), and to DEA for a license to grow marijuana for research at UMass Amherst (submitted June 2001). MAPS’s lawyer’s assessment: The decision is very particular about the applications delayed, so they obviously read & at least partially understood what was what. Unfortunately, 17 months delay to the court (unlike patients needing pain relief) is no biggie, so we lose on compelling action on the application to HHS/NIDA to purchase 10 grams for research and on the application to DEA to import 10 grams. The 3 1/2 year delay in DEA non-response to the UMass Amherst application for a license to grow marijuana for research trips the further inquiry wire at DEA, however, so there apparantly is a chance for some oversite. Reconsideration (of the outright denials) must be filed within 14 days [5pm Dec. 6], which we will file.
Dated: Nov. 22, 2004 (Judges Sentelle, Henderson and Tatel).
PER CURIAM ORDER filed [861222] denying petition writ of mandamus [837907-1] in 04-1243 without prejudice because petitioners have not shown that HHS delay in acting on research protocol and application to purchase marijuana is so unreasonable as to warrant mandamus; denying petition in 04-1246 without prejudice to extent it seeks to compel DEA to act on application for registration to import marijuana, because petitioners have not shown that DEA’s delay has been so unreasonable as to warrant mandamus; to extent the petition seeks to compel DEA to act on application for registration to manufacture marijuana, DEA is directed to file response to mandamus petition, 30 pp, within 30 days of date of order; petitioner may file reply, 15 pp, within 40 days of date or order; response and reply should address factors in TRAC. No mandate shall issue in 04-1274. [861222-1] .Before Judges Sentelle, Henderson, Tatel. [Entry Date: 11/22/04] [04-1247] (mam) [04-1246 04-1247]
MAPS’ Lawyer’s notes
mandamus: an order compelling the agency to act by a date certain.
TRAC: Telecom. Research and Action Center v. FCC, 750 F.2d 70, 80 (D.C.Cir. 1984) provides useful guidance in assessing claims of agency delay: (1) the time agencies take to make decisions must be governed by a rule of reason, PEPCO, 702 F.2d at 1034, MCI, 627 F.2d at 340; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason, PCHRG v. FDA, 740 F.2d at 34-35; PCHRG v. Auchter, 702 F.2d at 1158, n. 30; PEPCO, 702 F.2d at 1034; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; PCHRG v. FDA, 720 F.2d at 34; PCHRG v. Auchter, 702 F.2d at 1157; see also Blankenship v. Secretary of Health, Education, and Welfare, 587 F.2d 329, 334 (6th Cir. 1978); (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority, see, e.g., PCHRG v. FDA, 740 F.2d at 34; PCHRG v. Auchter, 702 F.2d at 1158; (5) the court should also take into account the nature and extent of the interests prejudiced by delay, PCHRG v. FDA, 740 F.2d at 35; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. PCHRG v. FDA, 740 F.2d at 34.
