## Facts

- Under the Controlled Substances Act (CSA), the Drug Enforcement Administration (DEA) may place substances into controlled-substance schedules through administrative rulemaking.
- Congress amended the CSA to allow emergency, temporary scheduling when necessary to avoid an imminent hazard to public safety. See 21 U.S.C. § 811(h).
- On March 1, 2011, the DEA temporarily scheduled the synthetic cannabinoid JWH-018 in Schedule I on an emergency basis.
- The Congressional Review Act (CRA) generally requires agencies to submit rules to both houses of Congress and to the Comptroller General before rules take effect. See 5 U.S.C. § 801.
- The DEA relied on a CRA exception intended to avoid delay for certain rules, but it still provided notice of the temporary scheduling action to both houses of Congress and to the Comptroller General.
- Defendants (drug dealers) were indicted for distributing drug analogues of JWH-018.
- Defendants moved to dismiss the indictment, arguing the temporary scheduling rule was ineffective because the DEA allegedly failed to comply with the CRA’s submission procedures, so they could not be held criminally liable.
- The United States responded that the DEA did comply by providing notice and, alternatively, that 5 U.S.C. § 805 bars courts from reviewing an agency’s CRA compliance.

## Issues

1. Whether defendants could defeat criminal liability by arguing that the DEA’s emergency scheduling of JWH-018 was ineffective due to alleged noncompliance with the CRA’s submission requirements.
2. Whether CRA § 805 precludes judicial review of an agency’s compliance with CRA procedures when the issue is raised as a defense in a criminal case.

## Decision

- The court denied the defendants’ motion to dismiss the indictment.
- The court held that 5 U.S.C. § 805 precludes judicial review of claims that the DEA failed to satisfy the CRA’s procedural requirements.
- The court further concluded that, even if review were available, the DEA provided notice to both houses of Congress and to the Comptroller General, so the temporary scheduling action was effective for purposes of the prosecution.

## Legal Principles

- Under 5 U.S.C. § 805, courts may not review claims that an agency failed to follow the CRA’s submission and review procedures.
- CRA compliance objections cannot be used as a collateral attack to invalidate an otherwise applicable rule in an enforcement action, including a criminal prosecution.
- Temporary scheduling under 21 U.S.C. § 811(h) remains operative unless and until Congress disapproves the rule through the CRA process; alleged CRA procedural defects do not, by themselves, supply a court-enforceable basis to treat the rule as void.
- When the record shows the agency provided notice to Congress and the Comptroller General, a CRA-based challenge to the rule’s effectiveness fails even apart from § 805’s bar on judicial review.

## Conclusion

The court refused to dismiss the indictment, holding that the CRA’s judicial-review bar prevents defendants from litigating the DEA’s alleged CRA submission defects as a defense, and also finding that the DEA in fact gave notice to Congress and the Comptroller General, leaving the emergency scheduling of JWH-018 effective.


United States v. Nasir, 2013 U.S. Dist. LEXIS 138622 (2013)