UNITED STATES OF AMERICA, PETITIONER V. ROBERT WIDDOWSON, ET AL.

   No. 90-1639

   In The Supreme Court Of The United States

   October Term, 1990

   The Solicitor General petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for the Tenth
Circuit in this case.

   Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

                      PARTIES TO THE PROCEEDINGS

   The parties to this proceeding are the United States of America and
respondents Robert Widdowson, Bruce Bachman, and Michael Whitely.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory and regulatory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The court of appeals' opinion (App., infra, 1a-16a) is reported at
916 F.2d 587.  The district court's opinion (App., infra, 17a-24a) is
reported at 723 F. Supp. 583.

                             JURISDICTION

   The judgment of the court of appeals was entered October 15, 1990.
A petition for rehearing was denied February 1, 1991.  App., infra,
25a.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

             STATUTORY AND REGULATORY PROVISIONS INVOLVED

   The relevant statutory and regulatory provisions are reproduced in
the appendix to this petition.  App., infra, 26a-28a.

                          QUESTIONS PRESENTED

   1. Whether Section 201(h) of the Controlled Substances Act, 21 U.S.
 C. 811(h), unconstitutionally delegates to the Attorney General the
authority to list a drug temporarily as a schedule I controlled
substance.

   2. Whether the Attorney General lawfully delegated his authority
under Section 201(h) to the Administrator of the Drug Enforcement
Administration.

                               STATEMENT

   Section 201(h) of the Controlled Substances Act, 21 U.S.C. 811(h),
provides the Attorney General with a streamlined procedure for
temporarily listing a drug as a schedule I controlled substance when
he finds that the action is "necessary to avoid an imminent hazard to
the public safety." On October 15, 1987, the Attorney General's
delegate, the Administrator of the Drug Enforcement Administration
(DEA), used that authority to list
N-hydroxy-3,4-methylenedioxy-amphetamine (NMDA) temporarily as a
schedule I controlled substance pending proceedings for permanent
listing.  See 52 Fed. Reg. 38,225 (1987);  see also 52 Fed. Reg.
30,175 (1987) (notice of intent).  On April 13, 1989, the
Administrator permanently listed NMDA as a schedule I controlled
substance following a rulemaking in accordance with Section 201(a) of
the Act, 21 U.S.C. 811(a).  See 54 Fed. Reg. 14,797 (1989).

   In 1988, respondents were indicted on charges related to their
alleged manufacture and possession of NMDA.  The alleged offenses
occurred after the October 15, 1987, effective date of the
Administrator's order temporarily listing NMDA as a schedule I
controlled substance, but prior to the April 13, 1989, effective date
of the permanent listing.  App., infra, 3a.  On March 29, 1989, the
United States District Court for the District of New Mexico issued a
memorandum opinion dismissing the indictment.  Id. at 17a-24a.  The
court concluded that the Administrator provided adequate public notice
of his temporary listing decision through the Federal Register
publication of the decision.  Id. at 18a-21a.  The court agreed with
respondents' assertion, however, that Congress did not authorize the
Attorney General to subdelegate the Section 201(h) authority to the
Administrator.  Pet. App. 22a-24a.  The court did not reach
respondents' contention that Section 201(h) unconstitutionally
delegates legislative power to the Executive Branch.  Id. at 18a.

   The court of appeals affirmed the dismissal of the indictment.
App., infra, 1a-16a.  The court first concluded that Congress's grant
of the Section 201(h) authority to the Attorney General amounted to an
unconstitutional delegation of legislative power.  Id. at 3a-9a.  As
an alternative holding, the court concluded that the Attorney General
lacked statutory authority to subdelegate his Section 201(h) powers to
the Adminisrator of the DEA.  Pet. App. 9a-16a.  The court of appeals
expressly recognized that its resolution of the constitutional and the
statutory delegation issues was in conflict with a prior decision of
the United States Court of Appeals for the Third Circuit.  Id. at 9a.
See United States v. Touby, 909 F.2d 759 (3d Cir. 1990), cert.
granted, No. 90-6282 (Jan. 14, 1991).

                   REASONS FOR GRANTING THE PETITION

   The United States submits that the court of appeals erred in
holding that Section 201(h) of the Controlled Substances Act amounts
to an unconstitutional delegation of legislative power and that the
Attorney General lacks statutory authority to subdelegate his Section
201(h) powers to the Administrator of the DEA.  The legal question
presented in this case are identical to those presented in Touby v.
United States, No. 90-6282 (argued Apr. 17, 1991).  This case and
Touby involve different drugs, but that distinction has no relevance
to the legal questions at issue.  Accordingly, the petition for a writ
of certiorari in this case should be held pending this Court's
resolution of the issues presented in Touby and disposed of, as
appropriate, in light of that decision.

                              CONCLUSION

   The petition for a writ of certiorari should be held and disposed
of in light of this Court's resolution of Touby v. United States, No.
90-6282.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   APRIL 1991

   APPENDIX