good morning in may please the court my name is michael hill or of hill or p c we represent the plaintiff appellants and his challenge to the constitutionality of the designation of cannabis on the controlled substances act today more than two point one million americans are currently registered medical cannabis patients in thirty three state legal jurisdictions across the country and require regular administrations of medical cannabis to keep themselves alive two of those patients  think there's a disconnect between saying that two point one million people kind of use for medical purposes and that they are required to use it  below even recognized that no one could legitimately claim that our clients aren't alive today because of the effects of medical cannabis and therein lies the problem because this is the only medication that keeps these people alive and under the d fundamental right to use a reasonable medical medicine and reason reasonable medical procedures in order to keep themselves alive and in that case they distinguish between chiropractics which was at issue there and things like  therapy and cults and clearly we don't have that situation here here we have thirty three state legal medical jurisdictions as well as district of columbia puerto rico and guam in which medical cannabis is legal for use the united states government currently owns a federal mandate medical cannabis patent as well as an international patent and those and has as attested to the fact that medical cannabis is effective in the treatment of parkinson's disease alzheimer's disease hiv induced to mention auto immune diseases so this is not a situation where we're talking about an unknown medical therapy this is a therapy that is shown to work and in the case of alexis portela whose parents are here today she was having multiple seizures or onsets every day for fourteen months she started with medical cannabis and she hasn't had a seizure or pre season onset in four years so we're talking about a medicine that works and unfortunately people are placed in the position where if they take their medication they're committing a federal crime every day even though this is the only way they can keep themselves alive in addition your honor i would emphasize that the lower court erred in ruling that the you had kept that the designation of cannabis under the controlled substances act is rationally this or that disease it's interesting that you mention that your honor because an inch on june twenty eighth of this year the f d a for the first time recognized a cannabis drug called epa dialects for the treatment of seizures in children  does not help your client it does not help my clients unfortunate is the effect of that approval is one part of the government says it's effective and can be used and the other parts as well put you in jail if you do and that is that that is th problem that is the effect the end under the controlled substances act there are three requirements that must be met one of which is they have to show that there is no accepted medical use in treatment in the united states and on the one hand as your honor just pointed out epa dialect has just been recognized as an effective form of medical treatment for seizures in some children and so cannabis clearly does work and there are thirty three state legal jurisdictions and my understanding is is that if the f approves a drug for one purpose doctors are free to use that drug for other purposes as well but at the moment the only approved drug for that purpose is epa dialects so they to to limit function if you're if you pursue an administrative review process the controlled substances act does provide a separate administrative review but that a minister a review on average takes nine years to complete and in addition to that  there have been six applications to reschedule cannabis since two thousand and three and two thousand and three the department of health and human services up taint a medical patent for medical cannabis for the treatment of these as i mentioned earlier and so on the one depart and the department of health and human services gives the binding recommendation to the da and the justice department on issues relating to rescheduling and disk edgel and drugs for purposes of the controlled substances act so on the one hand the in effect the deciding vote has acknowledged that there is medical utility for cannabis and on the other hand that same binding vote has apparently told the d a in the justice department that there is no medical use for cannabis in the united states and that dichotomy suggests pure irrationality your honor and in addition to that i would also point out surely there are recognized downsides too to approving cannabis for general use when you say general used to mean medical use or do you safe one of the safest therapeutic drugs known to man and there were no talks there was no toxicity in that there were no side effects and in effect i would say to this court what we're asking for is effectively what was given back in  just judge young considered this issue we are not here before this court today asking that this court declare that the designation of cannabis is unconstitutional we are here to ask for the opportunity to prove it assuming all the facts of the o the complaint are true we do set forth claims claims legitimate claims that that the designation of cannabis is unconstitutional and deprives people of their right to preserve their health and their lives thank you very much but i'm sorry i had a little trouble i think the the idea are is your remedy to seek expedited review if not nine years on the basis what was rational in the past may no longer be rational now yes and the answer to that is that it's a question that it derives directly from judge hellerstein opinion he did indicate that the parties could bring a writ of proceeding to expedite review the problem is that under current federal law in order to obtain an expedited review and bring a writ of mandamus you must first as a predicate to bring that action you must first have to show that there has been  delay and the courts so far have said that egregious delay is between six and eight years our clients can't wait six to eight years and so the writ of mandamus proceeding is simply not available as a remedy to our clients if they want to seek administrative far as we were able to discern in the cases that have spoken to this particular issue concerning administrative review i'm not certain that this court has actually rendered a particular decision on this issue that's why we turn the lights  in facts cause the placement of marijuana on schedule one of the c s a to no longer be constitutionally rational judge hellerstein correctly concluded that the proper way to present these types of arguments is through the available administrative procedure you say it's new i mean this is the the basic science regarding the usefulness of  medical purposes has been documented for decades what what's new about it the government turning a blind eye to that and not applying the standards for reclassification respectfully in using the term new evidence i am i am simply repeating the term that is used by the plaintiffs to explain why their claims are different from all of those that have been reached i agree that  the matters of which we could take probably judicial notice because they're so old so common and so well documented show that the benegal use of marijuana is fully just read off if you look at the decisions for instance of the d c circuit in americans for safe access in two thousand and thirteen the d c circuit did consider a full administrative record compiled by the d a in denying a previous petition to reschedule marijuana and and concluded in in that decision that as of two thousand and thirteen there were not sufficient studies of sufficient quality showing both the safety and effectiveness of  marijuana and for that reason found is that the right standard is doesn't it doesn't it also have to be shown that it doesn't have any medical use your own of that that is part of the standard that the d to determine whether there is a currently accepted medical use and that's a five part standard that the d c circuit had had previously approved so if the d c circuit had the basic information and or the or the ministry of agency had the basic information and the d c circuit said that's fine then there is no point in their going to the back to the administrative agency but just like i think that gets back to your previous point which is that the plaintiffs here say that they have new information that was not previously considered by by courts or by the administrative agency the policy rationales for exhaustion apply in full force here where you have a decision that does rely on technical and scientific matters where there is agency expertise additionally this court has recognized that exhaustion will conserve judicial better your honor again if i if i understand that your question is whether the this court can direct the agency to consider another outcome in this administrative review process and i would suggest that the appropriate way for this court to do so would be on a petition for review under twenty one u s c eight seventy seven which is the which is the provision of the c s a that does provide for a court of appeals review  an agency decision again on that full administrative record compiled by the by the agency on a petition moving on if i may even if the court were to look past the exhaustion point judge hellerstein correctly held in the alternative that the rationality question has already been decided by this court in the united states he care for care for treat one's disease using any any remedy that a person desires that question has also been considered by a number of courts specifically in the marijuana context by the ninth circuit which rejected it in  thousand and seven and beyond that in other contexts as well including the on bank d c circuit which considered a similar right to preserve life through experimental drugs for terminally ill patients in abigail alliance which which we cited at page believe thirty one of the government's brief so unless there are for the questions we will rest for on our brief for the remaining claims mister referencing nori i would point out that this is the first as applied challenge by a medical cannabis patient in the second circuit so this issue the issues we've raised have not been decided by this court i do want to address the issue of  substances act in that case the da had rendered a determination several months before and the court ruled that since the da has not advised the court that it will change its position on the treatment of industrial  pursue a futile course of action here three months before eleven months before the applications to reschedule countess was rejected you were claiming you knew information that was different from what had been presented before and if that's true then wash and be given the opportunity to comment in each instance where we've heard to new evidence and information we were referring to what the courts had had reviewed because in each of those cases opposing counsel has cited in his briefs in each instance they relied they did not rely on any or most of the evidence that we cited we were talking about what the courts had seen we were not talking about what the administrative agencies zene and as your honor pointed out  the veil ability of evidence concerning the medical efficacy of cannabis has been around for decades and the fact of the matter is despite or in the face of that evidence the courts have simply not really not while certainly the agencies have not reacted the problem for patients who need counted this to live is such that they need to get access to their medication and not be living under the threat that any point in time the federal government could reverse its hands off policy towards cannabis and begin forcing the controlled and i appreciate the question the answer would be that any delay for example for jagger cod who suffers from lee's disease any delay at all a day a week that in itself would be greta's and there's just simply no way we could reasonably expect that and a writ of mandamus proceeding followed by full administrative review could be completed within the time necessary to in order to give jagger codd intellects support tallinn the others who need cannabis to live the opportunity to win those cases and then get their medications before they become ill thank you thank you but you both will reserve decision