procedure coming down the pike she was aware that she was being investigated and people who are associated with her husband's business were arrested not that she had any part of it or even to understood much of it but she knew something was going to happen and she did get a notice from the drug enforcement administration understands didn't mr brown  sir they were going to have a challenge of her right to continue to write prescriptions something very important because if a doctor cannot prescribe told you have these three three things going to happen you can request a hearing and in which case we will set a date for a hearing and you can be represented and you have certain rights secondly you can decide that there's no without hearing any other side of the story and third if they don't hear anything they will take that to mean they will deem that she has made a waiver and a waiver is normally considered in the law there are state courts i know we call it knowing intelligent something that you know you have and make a decision not to take advantage of not something that  you can smoke what you don't have you can lose what you may never have what happened in this case is particularly unfortunate because she had not sure any and you folks know that she had an attorney who was involved in this because he was involved in a case where dr fried husband mr shafer was trying to get marijuana back that had been seized by the authorities and i believe  fifth and i've given the clerk notice of this because it's not really related case doesn't have much to do with our situation but he was trying to get back marijuana which was the very subject of the charges  nifong told mr fry as her attorney thank you for giving me a copy of this order to show cause i will of course do what's appropriate and make sure that you have a hearing where you can defend yourself and that was the last that dr fry heard about it from mr nick or from the drug enforcement administration in the meantime mr nick was trying to get the medicine return about it so can for a concerned about it that she felt that perhaps mr nixon had a conflict of interest representing her husband and she came to our office and asked her to represent her at the hearing when it was finally said by the drug enforcement administration administrate of law court i personally consented to take that job however the next communication received from the d lastly i'm going to find that she it's not in the public interest for her to continue to prescribe medication to her patients because she was too associated like a bomb and dr surprised here she had an attorney who has agreed to do the hearing who is gathering evidence here she she had no idea that there might be some question of whether mr nick had formally asked for an attorney and this was a shock to her i personally was in jury trial but i'm lucky i work with other good responsible people and news releases immediately contacted the drug enforcement administration under assistant administrator of law judge and said there's been a misunderstanding she does so then of course comes the frantic search to find in mr nick's computer in his mother's computer in his girlfriend's computer a copy of the letter because we didn't have a certification we got mr next word that he had indeed doctor and she's never going to any trouble and she works hard to be a doctor and she cares about her patients and she's in a rural community where we were we need doctors clearly we would like to contest these allegations that are very we were shocked when on the seventeenth we got a reply from mr brown jr saying no saying i don't have enough evidence that's a lawyer really apply for  sensually that's what he says when he goes on to say besides i think dr fried was doing is bad for the community and also this thing you know we we did try to raise other grounds in hopes that he might respond to one of them and i find this round inconsistent with that ground so i actually got an extremely unsympathetic ear which causes us to do something we don't like to do you know every every little situation with administrative hearing that is there a petition so this is just cory however that's what mistruth used to and she filed the petition she also went to mr mr nick and said if you can't give us something from the computer at least tell us the truth under oath so we can submit it to these hearing officers in this court to show that the victim here she's the one who's being knocked out of the boxes stuff i believe shortly after mr reed's files so tension with discord really challenging everything and i understand the way this thing left and right certain you know he does all the medical marijuana attacks in california he says well you know maybe you're within the time limits because you did ask her to reopen the hearing based on primarily the fact that she had intended to to get a hearing in the first place but then you're limited to whether she has been hearing in the first place but the way we count it she might be a day late in this matter you know mr nick may have been six months late but she might have been a day late and takes the easy route deprive dr dr frye of some very very from the day so that the hearing officer deny our written request to reopen the hearing based on the fact that in fact she did want such a hearing and had i had always expect default sometimes the faults are very efficient and get the right result we accord it because any prettier and because that's really the one thing that everybody in this room has to look at profession including yourselves to be concerned about the where for good cause they can reconsider and and you know it's a question of whether something's a new argument or new evidence certainly new in what way well it should be significant to the hearing officer review both from the final order revoking her registration and from the denial of her request to reopen it it's clear that this court has jurisdiction only to consider the latter the statute which  this court with jurisdiction twenty one u s c section eight seventy seven provides that within thirty days after notice this providing provided one must request a hearing from the da in this case the final order revoking dr pryce registration was rendered on december thirteenth two thousand and two and it was published in the federal register on december twentieth on once out of the country they get one of these or then after taking administrators to reopen the proceedings ask dr frye did hear and  know good concert whatever certainly i'm sorry i thought you were referring not to the thirty days for requesting the order to show cause but the thirty days after the final order in which you have to forthcoming might be late there certainly are circumstances in which under the under twenty one you see a far thirteen zero one four three the government can reopen a proceeding with good cause having been shot certainly neither the united states nor the drug enforcement administration has any interest in rushing to render a judgment in a situation in which a request for a hearing has not been done in fact in this case the government waited nearly nine months before rendering its its final order so to go back to your question of progress and certainly in the instance that somebody is away and they've received the order to show cause they could rip up explain the circumstances to the d sixty days if the government is a party the mere fact that that attorney is negligent doesn't allow the court to expand the time in this instance it may have been a different story when dr fry requested to reopen the proceedings there was some evidence offered asked to the fact that this attorney had in fact requested a hearing in fact if you look at the excerpts of record it produced and if i understand the story later correctly it's not altogether clear whether dr frye believes that mr nick did in fact request a hearing or not under those circumstances the standard of review for the denial of our request to reopen is whether the government or the agency engaged in the clearest of these discretion in the absence of any evidence or any justification for a final decision i think i look at that question long and hard your honor and the best answer i could come up with was the supreme court's decision in the brotherhood of locomotive engineers could just pass if there seems to allow the the agency to reconsider that that's true and it's been read by other courts including my understanding this court in the friends of sierra railroad case to extend to situations in which the regulations do not expressly allow for expressly allow for a motion to reopen i mean i i have to say i certainly would have made the argument that there was no possibility of even making out requests to reopen if i thought that i could in consider the the denial of the reconsideration request that's right that's right and then the standard review relevant to that determination is whether there is new evidence or new or new facts that have perfect been presented and then only if the government or the agency engage in the clearest of these discretion and i would submit that in the absence of again in the absence of any proof explanation whatsoever as to why the i'm not aware of i'm not a i doubt there are i would say roughly ten to twenty orders to show cause that are issued to doctors every year i can't say how many involve a policy fault here can under your gloss on the locomotive engineers can we do that timeline here i say i think your honor the judge being you certainly could do that i don't think that under the relevant standard of review i would i don't think that would be an appropriate decision because i think that you would have to find that the agency again engaged in the clearest abuse of discretion we did to use our discretion a full week after the d a denied the request for to reopen and two days after she had called her petition for review in this court and as this court has stated recently in the lowry versus barnhart case evidence that was not presented to the agency is not part of the record on our view now i would concede that certainly one might say that if this court were reviewing the matter did novo it might come to the conclusion that the administrator should have allowed a reopen the proceedings and allow the hearing but under the relevant standard of review in the absence of any evidence justifying or explaining the lack of a request for a hearing it's going back to i just want to go back to your question just pious about the about the reopening i would go back to that point i think that this is a an area of the law in a way that we there is not anything directly on point as to whether there is this authority in this case and so we have to go with what we see as the the best authority on that point i would just want to add one final point as to the original final order revoking the registration this court does lack jurisdiction to entertain that aspect because as we set forth in our brief the thirty day limit is  perhaps i'm missing something but to me that's the oddest part of that is the government's argument if the court rules that is that there's a real question about whether  will you want us to go outside the record to find these things that you're arguing here is your first approaches  that's how that's how he wrote it it's not as though she could rehabilitate or anything like that that's how it's written but just to respond to your your statement there is the letter that fighting for this right really took a record you can i just don't have much experience with the ministry of course i have had some but at least you get a chance to counter the evidence they don't just coast through this i don't think i've ever seen if you ever worked in law enforcement and seeing a diminished investigative file it's not something you would want to well that your children's health revocation does this it denies her registration and further denied any pending request for renewal it doesn't last a lifetime she can always up file an additional or a new  request for her registration i given the circumstances i have to be frank that i i would not see it likely that it would be granted but she could certainly present all of the evidence that she wanted to present at the previous administrative hearing in their request to have her license or her registration renewed that's fine though she's fighting you know an uphill battle all the way undoubtedly your honor i certainly would for filing a petition for review it becomes final for purposes on december twentieth however the order said that it would be the effective date would be i believe january twenty first two thousand and three so she has not been able to  medical association we're very grateful to her for her participation in this case as we are all the makers in this case i will take twelve minutes to argue now your honour's and then reserve eight minutes rebuttal this case involves wholly interest state completely non economic activity under taken to preserve the life and alleviate the suffering of diane monson and angel raich and the constitution of the constitutional question is does congress have the power to reach it how could it be the congress cannot prohibit the possession of guns near a school because that's not economic and congress cannot prohibit violence against women because that's not economic that congress can prohibit the holy non economic of the government's case now in our brief says you know we presented four reasons why the government lacks the power in this case the first is based on its exceeding its power of the congress was second concerns interfering with the sovereignty of the state of california and thereby violating the necessary improper clause the third concerns the violation of the fundamental rights of our clients and then finally we've added another claim based on the case of going to texas and the interference of liberty here within that of this case your honor involves the wholly personal cultivation and use of medical cannabis done either by the individual herself in the case of diane monson or in the case of angel raich involving two caregivers who are doing this on her behalf but she cannot do it herself the other cases involve cooperative organizations that have been organized pursuant to california state law which provide medical cannabis for people under kind of california anywhere and that is that what we deal with here is completely not economic behavior unquestionably not economic behavior and if the supreme court's opinions in lopez and morrison stand for anything it's that not economic behavior marijuana for medicinal purposes on the recommendation of the physician or permitted by state law your honor i would not put the right even though i agree that that is included within the right that we're i to see fundamental like the right to a decent education and not considered not considered a fundamental right but there isn't but there is a fundamental right to life and to avoid pain and suffering your honor that has a long standing tradition tradition in the history of our of our country and that and the government's actions are infringing upon that right but i mis understand stood your honest question i did listen very carefully as you described the right but it's what your what if what your honor don't i heard it but if what your honor is describing is the activity or the class of activities that the government seeks to reach i believe that's an accurate spoken about the commerce clause right what your honor has described is the class of activities that the government seeks to reach which we contend are wholly not economic and completely outside of the commerce powers to reach and if it had crafted a statute which attempted to prohibit just the activities and only the activities that iran are just described it would be unconstitutional be clearly unconstitutional in fact i believe the government would concede that it would be unconstitutional just as prohibiting guns within a thousand feet of the school is unconstitutional just as creating a civil cause of action for violence  that's large enough to include some activities that are within its powers and then also include these activities were which are outside its powers and if it is allowed to do that in order to reach a class of activities that otherwise cannot reach then it can reach every activity in the entire united states whether economic or non economic and that certainly violates the constitution as well as the supreme court's ruling that the congress lacks a general plan to replace power the constitution doesn't give it to it it doesn't have it but if you accept the government's argument here suggestion i believe the judge fogel was right when he decided to santa cruz click case i'm saying that is a false issue because he is rather congress has the power to reach this class of activities regardless of what the states have done i agree with that now your second quest even if they are economic activities what what the supreme court how this is what we're going to tell says and how the supreme court interpreted record in both lopez and morrison is that at that point you have to aggregate that class of activities to determine whether that class of activities has a substantial effect on interstate commerce that there's been no findings by anyone on that either by congress or by any court and there's been no hearing on that and so we've got so that would just be the threshold question and to get back to just pious question that is one of the issues that's at issue in the o c c case the aggregation principle might apply to any arguably economic activity that existing in that case which is absent in this case and in that case we are asking for a been growing he had a private if he was living in this if he was living in lincoln and he had a plot of wheat behind his house that of that statue would not have applied to him and looked at first as philip and tells us nothing about how that non economic activity would be treated but in fact he was engaged in the commercial activity of farming now it's true some of his produce was consumed on his farm others of his produce was sold interstate and what the court held was that the congress had to be able to reach the produce that was grown  that's the key and that is really i'm glad your honor raised it because if soon as you can tell the difference between a commercial activity of farming whether it's interest rate or interstate you're on the commercial side of the line but there has to if there is a line between commercial and noncommercial our clients are on the noncommercial sides of the line i agree that there aren't any line is not always easy but there is a noncommercial side of the line and growing plants in your own home to consume as medicine for yourself is on the noncommercial side of the line clearly not economic activity if we were involved in economic activity that would put us more over into the into some aspects of the old c b c case and would not be the case that we have before us i said i would reserve eight minutes of my time  possession with respect to each of the other issues they were presented in the other case and i would point out that one of the plaintiffs in that case was an individual who not only was a member of a cooperate of but allege that she was growing marijuana for her personal use and that she had a private garden for her personal use so that very issue was presented which came through that there were several that's right that was the woman's alliance well we don't know your honor and i think that that goes to show that the attempt here to basically get from around twenty five years of this course precedents upholding the controlled substances narrowed to refill the commerce clause that's certainly true your honor but after the supreme court's first decision in lopez in the new sort of new federalism decisions this court reaffirmed its decisions on holding not that specific it was that if i didn't but there were analogous in particular i'd point to and what the a very able district judge in this case pointed to was this court's decision in the united states versus business now that probably is able if you like w marijuana plants were rooted in the store while could be subject to congress as congress last authority and as the court noted in that case there was obviously no interest no obvious interstate connection because those marijuana plants were rooted in the school and this individual's backyard and this court nonetheless held that because the controlled substances act covers a broad class of activities and that congress has made express findings as to why both interstate and intrastate trafficking controlled substances affects interstate commerce it fell within congress as harsh calls authority and i would point out how about the medicinal use well i don't think the medicinal use add anything to the analysis and i think that actually the supreme court's decision in oakland cannabis that the reasoning of that decision disposes the back line because what the court said was that the controlled substances act allows for no medical necessity exception and indeed precludes consideration of that evidence now by parity of reasoning if the act precludes consideration of that evidence for purposes of a common law defense i i don't see how one can then  class of activities for purposes of commerce clause analysis by reference to something that has that congress didn't decide and indeed as the supreme court suggested it is precluded from consideration under the under the controlled substances act this ultimately goes back to the supreme court's decision in the present which the district court relied on that congress can regulate an entire class of activities in contrast to that that child pornography statute congress had made expressed legislative findings in the act linking intrastate to interstate commerce and that it was on that basis we had repeatedly up to the court had certainly is not a case that can be held or said to be close on point given that mccoy court expressly distinguished the controlled substances act from the statute it issue there and i don't it certainly did your honor but again it when i go back to the point the court emphasized that there were no legislative findings that linked interstate to interest interstate and intrastate commerce it also distinguished the statute the carjacking statute at issue in its in this court's decision in united states versus cortez again noting that there were expressed legislative findings in that instance and they were absent with respect to the statute is shown mccoy and we go back to the point that the courts don't look at individual instances of the class you look at the class that is regulated by congress and this court has repeatedly held that drug transactions are economic activity that affect interstate commerce in fact that became readily apparent during september hearing during which time there were three clubs which distributed marijuana on a wide scale basis for cash and even the rates of pallets recent rule twenty eight a letter notes that the woman's alliance had a staff receive monetary donations so there clearly was economic activity going on there now i understand the rates of parents here try to then trivial individual instances of the class you look at the class of activities that congress is regulated nor can you for that matter define a new class of by aggregating the trivial trivial instances of the class which i submit is what they are trying to do here if the defendant in the basement case his growing of marijuana that's rooted in  a can be held to a fact interstate commerce as this court has held then it cannot be the case that an entire class of people who are allegedly using marijuana solely for medicinal uses within the boundaries of california that that entire class doesn't fall within congress as commerce clause or i would also just note judge paez this question we don't know where this the seeds came from we don't know where the growing acquit meant that substances affect interstate commerce and every court to consider this question following the supreme court's decision in morrison including the fourth the eighth and the tenth circuits as well as the district court here in judge fogel  county santa cruz has found that morrison does not call into question this court's authority as well and indeed morrison says that this court's don't blindly defer to congressional findings and that certainly e commerce was nonexistent but held that such is not the case with controlled substances congress had a rational basis for making its findings so this court has already answered the question that was presented in mor whether there is a rational basis or right in a ten year with too much of an attenuation between the class of activities in question let me turn to the temp amendment challenge the conclusion that this court in cham and in the united states versus rosenberg has expressly rejected the notion that the controlled substances act interferes with the sovereignty of the states this court's decision in the carnahan case is the fundamental rights argument advanced by the rights of palin's in that case this court held that her rights of personal liberty and privacy never argue these issues in their argument confection one has a fundamental right personal rights of lives of liberty and and privacy do not entitle anyone to attain lay a troll free of the exercise of the government's police power and indeed every court that ha considered the question subsequently has read carnahan as foreclosing that fundamental rights argument the district court here did just focus on the county of santa cruz case judge pryor and the cannabis cultivators club cases cases from fundamental right to use whatever treatment one could to purchase or of one's life and judge roberts of the district of columbia relying on carnahan held that that issue was forecl i'll just close briefly with the medical necessity argument and then the consideration of the other equitable factors a medical necessity the supreme court made clear in footnote seven of its opinion that and i quote let's there be any confusion we clarify that nothing in our analysis or the statute suggests that the distinctions should be drawn between the prohibitions on value fracturing and distributing and the other prohibitions in the controlled substances act that does not allow the claim that one can have a medical necessity for personal use of marijuana and finally as to the equitable factors the rich are palates spend a significant amount of time focusing on the public interest and what the supreme court made clear in oakland cannabis is that one cannot consider anything when looking at the cup public interest in and resolving and injunctive action and indeed where a statute has clearly indicated congress decision as to the public interest of court can not digress from that consideration and in particular cannot consider the alleged medicinal uses of marijuana as a consideration in the public interest judge jenkins considered all these questions correctly determined that while this undoubtedly has proven to be a controversial issue as a matter of public policy resolution of the legal issues in this case involves a straightforward application of pill called marron all of which has one of the active ingredients of marijuana which is now in schedule three and can be used for the treatment of knowledge in cancer and aids patients the d e a and the f of numerous several studies that are ongoing here in california as to marijuana as medicinal value and the controlled substances act itself allows a procedure whereby when changes in medical and scientific knowledge occur one can petition the d e a s or the da can start an investigation on its own and determine whether the changes in medical technology or the changes in medical evidence warrant a rescheduling of marijuana or any other drug that has not occurred to date with respect to marijuana in one thousand nine hundred two the da administrator denied a petition for rescheduling for marijuana and that was affirmed by the d c circuit most recently just two years ago in two thousand and one a petition was referred to the f d a for its analysis in the event surgeon general david satcher recommended that marijuana remain schedule one because feet evidence or the current evidence did not support the conclusion that it had an accepted medical use in the united states that's not to say that if there may not be the development of drugs that that isolate the canal benoit's in marijuana and have a different delivery system fact the institute of medicine had a study on this issue that was published a few years back and one of the conclusions they reached was that while there is no future in smoking marijuana as medicine there may be the isolation of individual canal benoit and a different delivery system then smoking and that that may have future scientific benefit but that of course is a that those would be different drugs than marijuana medical i don't know that in fact i believe that the time may have already passed i i don't know the answer to that question i'm sorry your hon your honor so i really do want to get to the cases that the council has relied upon up before i do since this last discussion of the reasonableness of the controlled substances act i think is but live by the information that's been already been provided by the to the court by the am and i won't say any more about it that i think that that those facts speak for themselves as to how reasonable the application of the statute has been and also the active ingredients that mr quinlivan has touted for future medical benefits are currently available to our clients in the form of  additional cannabis that they're currently consuming and subject to pain of punishment and incarceration and it's the government's of stopping these from being delivered in a more efficacious manner i do want to talk about the cases that that council has relied upon as they relied upon in our brief and we do deal with these in our briefs but i would just emphasize that all the ninth circuit cases that counsel relies on either involve commercial transactions in some way or another  already even in the case of the bramble case is a three morrison case all the interpretations of lopez that took place before the morrison case was decided are highly suspect because what courts across the country did was basically interpret seriously and i think that that's an opinion that deserves to be taken seriously i have to say that the ninth circuit is one of the few circuits to it taken more seriously but by taking it seriously will now find out whether the supreme court will also take it seriously as applying to situations involving for example the suffering of people with respect to medical cannabis as it formally applied to violence against women and the guns within a thousand feet of the school but i think that that in that decision is entitle to be taken seriously as  our briefs discuss mccoy at great length for good reason this is an as applied to a completely noncommercial act class of activities case and the argument the government makes in fact it's the only argument i want to focus on this is the only argument the government makes congress can reach this class effectively he's it's willing to go after a much larger class of activity activities of which this noncommercial holy intrastate class is a part that's their whole argument that means that is irrelevant and morrison is irrelevant because all congress has to do to fix things is just go after more interest paid activities and if it goes after more interested activities it's constitutional that can't be right it can't be right that congress has more power to reach  beyond its interstate commerce power under the necessary and proper clause the more activities it tries to regulate that would basically give it a plan of our overall commerce and i would like to know i asked before whether the whether the where the government would accept the implications of this argument which is that congress can regulate any activity in the country provided they're willing to go after a big enough class of activities of which this activity is a part and i would also like to mention the carnahan case  case did not just pose of this did not deal with this issue for one thing it did not deal with the due process challenge and said the due process challenge was premature and secondly it specifically did not decide whether somebody had a fundamental right to use remedies of their own confession drug that can be it only contains one of the cannabinoids of cannabis and it is not effective with respect to our clients of our clients could alleviate their suffering through the use of this legal of a little part prescribe drugs i assure you that they would they would not be in federal court if that drug worked it doesn't work the only thing that works for them is this and the only thing that stops them from consuming the drug that is saving their lives and preventing suffering is the interference of the federal government finally i would address the issue of the difference between the o c c case and this case i would just bring us back to that once again the o c c case and the other cases the way and the other cases that were heard in september include the fact case but they also include other facts that the government has argued renders the activities in their commerce basically money changing hands in those d d c you have money it's being given to a court as by members of a cooperative it's been contributed by members of cooperative in return for which they get cannabis this is the government contends is commercial activity and therefore we argue went on c b c must still be subject to the substantial effects test of morrison and record here we have no lots of activities some of which the government argues are commercial others which i guess to date are conceding are not commercial i don't think they really did i say not fair to the government they didn't concede it's not commercial they're claiming the activity that took place here is commercial and that's absurd but that's the way i'm afraid to which the government's argument has to go in order to justify being able to reach into somebody's home and deprive them of four plants that they're growing to preserve their own life your honor my time is as a lapse