Oregon v. Ashcroft

Page 1118

368 F.3d 1118

State of OREGON, Plaintiff-Appellee, v. John ASHCROFT, Attorney General, in his official capacity as United States Attorney General; ASA Hutchinson, in his official capacity as Administrator of the Drug Enforcement Administration; Kenneth W. Magee, in his official capacity as Director of the Drug Enforcement Administration, Portland Office; United States of America; United States Department of Justice; United States Drug Enforcement Administration, Defendants-Appellants, v. Peter A. Rasmussen; David Malcolm Hochhalter; Richard Holmes; James Romney; Melissa Bush; John Doe # 1, Plaintiffs-Intervenors-Appellees.

No. 02-35587.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2003.

Filed May 26, 2004.

Gregory G. Katsas, Deputy Asst. Attorney General, Jonathan H. Levy, and R. Craig Green, U.S. Department of Justice, Washington, DC, for the defendants/appellants.

Robert B. Rocklin, Asst. Attorney General, Oregon Department of Justice, Salem, OR, for the plaintiff/appellee.

Eli D. Stutsman, Portland, OR, for physician/pharmacist plaintiffs-intervenors/appellees.

Nicholas W. van Aelstyn, Heller Ehrman White & McAuliffe, San Francisco, CA; and Kathryn L. Tucker, Compassion in Dying Federation, Seattle, WA, for the patient plaintiffs-intervenors/appellees.

Daniel Avila, Everett, MA; Gregory S. Baylor, Annandale, VA; Thane W. Tienson, Landye Bennet & Brumstein, Portland, OR; Mark E. Chopko, Washington, DC; Richard E. Coleson, Bopp, Coleson & Bostrom, Terre Haute, IN; Rebecca P. Dick, Swidler Berlin Shereff & Friedman, Washington, DC; Donald A. Daugherty, Jr., Michael Best & Friedrich, Milwaukee, WI; Robert A. Free, MacDonald, Hoague & Bayless, Seattle, WA; Katherine Heekin, Markowitz Herbold Glade & Mehlhaf, Portland, OR; Arthur B. LaFrance, Portland, OR; Max Lapertosa, Chicago, IL; Rita L. Marker, Steubenville, OH; Mitchell Olejko, Morrison & Foerster, San Francisco, CA; John H. Pickering, Wilmer, Cutler & Pickering, Washington, DC; Wesley J. Smith, Oakland, CA; William R. Stein, Hughes Hubbard & Reed, Washington, DC; Joel H. Thornton, Washington, DC; Thomas Triplett, Schwabe Williamson & Wyatt, Portland, OR; Harris J. Yale, New York, NY; and Miles J. Zaremski, Schaumburg, IL, for the amici.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-01-01647-JO.

Before: LAY,^* WALLACE, and TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge.

A doctor, a pharmacist, several terminally ill patients, and the State of Oregon challenge an interpretive rule issued by Attorney General John Ashcroft which declares that physician assisted suicide violates the Controlled Substances Act of 1970 ("CSA"), 21 U.S.C. §§ 801-904. This so-called "Ashcroft Directive," published at 66 Fed.Reg. 56,607, criminalizes conduct specifically authorized by Oregon's Death With Dignity Act, Or.Rev.Stat. § 127.800-127.897. We hold that the Ashcroft Directive is unlawful and unenforceable because it violates the plain language of the CSA, contravenes Congress' express legislative intent, and oversteps the bounds of the Attorney General's statutory authority. See 5 U.S.C. § 706(2)(C), (D). The petitions for review are granted.

I

We have original jurisdiction over "final determinations, findings, and conclusions of the Attorney General" made under the CSA. 21 U.S.C. § 877. Because the Attorney General maintains that his interpretive rule is a "final determination" and because the Directive orders sanctions for violations of its provisions, we have original jurisdiction pursuant to § 877. See Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1085 (9th Cir.2003) (holding that an interpretive rule issued by the Attorney General pursuant to the CSA is a "final determination" for jurisdictional purposes because the rule "impos[es] obligations and sanctions in the event of violation [of its provisions]"); see also City of Auburn v. Qwest, 260 F.3d 1160, 1171-73 (9th Cir.2001). We consider the matter transferred to us from the district court pursuant to 28 U.S.C. § 1631.¹

This case is ripe for review because, under the Directive, health care practitioners risk criminal prosecution and loss of the privilege to prescribe medication if they choose to assist in the suicide of terminally ill patients pursuant to Oregon's Death With Dignity Act. See Hemp Indus., 333 F.3d at 1086 ("[I]f ... the challenged regulations present[] plaintiffs with the immediate dilemma to choose between complying with newly imposed, disadvantageous restrictions and risking serious penalties for violation, the controversy is ripe.") (citation omitted). "Because standing overlaps substantially with ripeness" in these circumstances, the petitioner health care practitioners have standing to challenge the Ashcroft Directive. See id.²

II

The Ashcroft Directive purports to interpret and implement the CSA, which Congress enacted as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236 (1970) (codified at 21 U.S.C. §§ 801-904). The stated purpose of the CSA is "to provide increased research into, and prevention of, drug abuse and drug dependence... and to strengthen existing law enforcement authority in the field of drug abuse." Id. at 1236 (preamble); see also H.R.Rep. No. 91-1444, reprinted in 1970 U.S.C.C.A.N. 4566, 4567 ("This legislation is designed to deal in comprehensive fashion with the growing menace of drug abuse in the United States[.]"); United States v. Moore, 423 U.S. 122, 141, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); Raich v. Ashcroft, 352 F.3d 1222, 1228-29 (9th Cir.2003); United States v. Rosenberg, 515 F.2d 190, 194 (9th Cir.1975) (noting that the purpose of the CSA is to "counter drug abuse").

Under the CSA, it is unlawful to prescribe or dispense controlled substances without a federal registration. 21 U.S.C. § 841(a)(1); see also id. §§ 823(f), 822(a)(2). The CSA originally provided automatic federal registration for state-licensed health-care practitioners. § 303(f), 84 Stat. at 1255. The Attorney General could revoke a practitioner's federal registration only if the practitioner falsified his or her registration application, was convicted of a felony related to a controlled substance, or had his or her state license suspended or revoked. Id. § 304(a), 84 Stat. at 1255.

In 1971, pursuant to his authority to issue rules regulating controlled substances under the CSA, see 21 U.S.C. § 871(b), then Attorney General John Mitchell promulgated the following regulation:

A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.... An order purporting to be a prescription issued not in the usual course of professional treatment ... is not a prescription within the meaning and intent of ... the Act and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.

21 C.F.R. § 1306.04 (originally designated as 21 C.F.R. § 306.04). This regulation exposed properly licensed and registered physicians to federal prosecution for distributing prescription drugs outside "the usual course of professional practice." See, e.g., Moore, 423 U.S. at 143, 96 S.Ct. 335 ("In practical effect, [Dr. Moore] acted as a large-scale `pusher' not as a physician."); Rosenberg, 515 F.2d at 193 ("[A] doctor who acts other than in the course of professional practice is not a practitioner under the [CSA] and is therefore.... subject to the criminal provisions of the Act [.]") (citations omitted).

In 1984, Congress amended the CSA to give broader authority to the Attorney General. The Attorney General is now authorized to revoke a physician's prescription privileges upon his determination that the physician has "committed such acts as would render his registration ... inconsistent with the public interest[.]" 21 U.S.C. § 824(a)(4). When determining which acts are inconsistent with the public interest, the Attorney General must consider the following factors:

(1) The recommendation of the appropriate State licensing board or professional disciplinary authority;

(2) The applicant's expertise in dispensing ... controlled substances;

(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances;

(4) Compliance with applicable State, Federal, or local laws relating to controlled substances;

(5) Such other conduct which may threaten the public health and safety.

21 U.S.C. § 823(f). Although this provision gives the Attorney General new discretion over the registration of health care practitioners, Congress explained that "the amendment would continue to give deference to the opinions of State licencing authorities, since their recommendations are the first of the factors to be considered[.]" S.Rep. No. 98-225, at 267 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3449.

Against this backdrop of federal regulation, in 1994, the State of Oregon enacted by ballot measure the country's first law authorizing physician assisted suicide. See Or.Rev.Stat. § 127.800-897. Oregon's Death With Dignity Act authorizes physicians to prescribe lethal doses of controlled substances to terminally ill Oregon residents according to procedures designed to protect vulnerable patients and ensure that their decisions are reasoned and voluntary. See id.³ Oregon voters reaffirmed their support for the Death With Dignity Act on November 4, 1997, by defeating a ballot measure that sought to repeal the law.

Soon thereafter, several members of Congress, including then Senator John Ashcroft, urged then-Attorney General Janet Reno to declare that physician assisted suicide violated the CSA. She declined...