DANIEL TOUBY AND LYRISSA TOUBY, PETITONERS V. UNITED STATES OF AMERICA No. 90-6282 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-44a) is reported at 909 F.2d 759. The opinion of the district court (Pet. App. 48a-59a) is reported at 710 F. Supp. 551. JURISDICTION The judgment of the court of appeals was entered on July 27, 1990. Pet. App. 45a. A petition for rehearing was denied on August 21, 1990. Pet. App. 47a. The petition for a writ of certiorari was filed on November 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Attorney General's authority under 21 U.S.C. 811(h) to list a drug as a Schedule I controlled substance on a temporary basis where "necessary to avoid an imminent hazard to the public safety" represents an unconstitutional delegation by Congress of its legislative power. 2. Whether the Attorney General is barred from delegating his temporary listing authority under 21 U.S.C. 811(h) to the Administrator of the Drug Enforcemet Administration. STATEMENT After a jury trial, petitoiners were convicted of conspiring to manufacture 4-methylaminorex, a Schedule I controlled substance, in violation of 21 U.S.C. 846, and of knowingly and intentionally manufacturing the drug, in violation of 21 U.S.C. 841(a)(1). Daniel Touby was sentenced to 42 months' imprisonment and Lyrissa Touby was sentenced to 27 months' imprisonment, to be followed by three years' supervised release. 1. The evidence at trial, the sufficiency of which is not challenged here, showed that in September 1988, Daniel Touby purchased cyanogen bromide from the Eastman Kodak Company. On October 3, 1988, Lyrissa Touby obtained sodium acetate, sodium carbonate, potassium carbonate, and norephedrine hydrochloride from a chemical supplier. Expert testimony established that these chemicals are used to make 4-methylaminorex, a stimulant known as "Euphoria." Pet. App. 3a, 24a-25a; Gov't C.A. Br. 3-4. On January 5, 1989, the police in Wanaque, New Jersey, arrested petitioners in their automobile after they purchased a television set with a counterfeit cashier's check. A search incident to the arrest found petitoners to be in possession of marijuana and drug paraphernalia. Pet. App. 56a-57a. A warrant was obtained to search petitioners' home for counterfeiting materials and drugs. Id. at 57a. When DEA agents executed the warrant on January 6, 1989, they discovered a fully operational drug laboratory in petitioners' bedroom. Among the items seized were papers containing the formula for manufacturing 4-methylaminorex and mixtures that, upon testing, were found to contain the drug. Pet. App. 25a-26a; Gov't C.A. Br. 4-5. As explained below, at the time petitioners conspired to manufacture and manufactured 4-methylaminorex, it was temporarily listed as a Schedule I controlled substance pursuant to the authority granted the Attorney General by Section 201(h) of the Controlled Substances Act, 21 U.S.C. 811(h). Pet. App. 3a. 2. Section 201(a) of the Controlled Substances Act, 21 U.S.C. 811(a), which was enacted in 1970, /1/ grants the Attorney General authority to add substances to the schedule of the controlled substances in 21 U.S.C. 812 after following the notice-and-comment rulemaking procedures under the the Administrative Procedure Act, 5 U.S.C. 553. Section 201(h) of the Controlled Substances Act, 21 U.S.C. 811(h), which was added in 1984, /2/ establishes expedited procedures by which a drug may be temporarily listed as a Schedule I controlled substance if the Attorney General finds that such scheduling "is necessary to avoid an imminent hazard to the public safety." An order listing a substance on a temporary basis under 21 U.S.C. 811(h) may not take effect until 30 days after publication in the Federal Register of a notice of proposed listing and transmittal of that notice to the Secretary of Health and Human Services. 21 U.S.C. 811(h)(1)(A) and (B). In deciding whether to list a substance following this 30-day period, the Attorney General must take into account any comments submitted by the Secretary of Health and Human Services and must consider three statutory factors -- (1) the drug's history and current pattern of abuse; (2) the scope, duration, and significance of abuse; and (3) the risk to the public health -- giving specific consideration to "actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution." 21 U.S.C. 811(h)(3) (incorporating 21 U.S.C. 811(c)(4), (5) and (6)). A listing pursuant to 21 U.S.C. 811(h) expires at the end of one year except tht, if the Attorney General has instituted rulemaking proceedings for the permanent listing of the substance under Section 811(a), the Attorney General may extend the temporary scheduling for up to six months. 21 U.S.C. 811(h)(2). An order temporarily listing a drug as a Schedule I substance "is not subject to judicial review." 21 U.S.C. 811(h(6). Under 28 U.S.C. 510, the Attorney General "may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General." In addition, 21 U.S.C. 871(a) provides that the "Attorney General may delegate any of his functions under (the control and enforcement subchapter of the Controlled Substances Act) to any officer or employee of the Department of Justice." In 1973, the Attorney General delegated the performance of his duties under the Controlled Substances Act, including the scheduling of drugs, to the Administrator of the Drug Enforcement Administration. 38 Fed. Reg. 18,380; see 28 C.F.R. 0.100(b) (1986). This delegation was amended in 1987 to clarify that it included the authority to schedule substances on a temporary basis under the expedited procedures in 21 U.S.C. 811(h). 52 Fed. Reg. 24,447; see 28 C.F.R. 0.100(b). On August 13, 1987, the Administrator of the Drug Enforcement Administration proposed the temporary scheduling of 4-methylaminorex as a Schedule I controlled substance, purusuant to 21 U.S.C. 811(h). 52 Fed. Reg. 30,174. The Administrator noted that the drug "is a new substance that is clandestinely produced, that it is distributed in ilicit traffic, and that produces stimulant effects," and therefore "is certainly the type of drug which Congress intended to be considered for emergency scheduling." Ibid. Citing various studies, the Aministrator also noted that 4-methylaminorex resembles amphetamine; that in high doses it produces "seizure activity in the brain and associated convulsions, depression, respiratory failure, and death"; and that the DEA was not aware of any commercial manufacturers or suppliers of the drug nor of any approved therapeutic use. Id. at 30,174-30,175. Based on a consideration of the three statutory factors identified above, as well as "the potent stimulant and toxic actions of the substance, and the lack of accepted medical use or established safety for the use of 4-methylaminorex," the Administrator found that scheduling 4-methylaminorex in Schedule I, at least on a temporary basis, was "necessary to avoid an imminent hazard to the public safety." Id. at 30,175. Pursuant to Section 811(h)(4), the Administrator notified the Assistant Secretary of Health and Human Services of the proposed scheduling. Ibid. On October 15, 1987, the Administrator published an order temporarily listing 4-methylaminorex as a Schedule I controlled substance, effective on that date. 52 Fed. Reg. 38,225. Based on the information discussed in the August 13 notice of proposed listing, the Administrator again found that the temporary listing of the drug was "necessary to avoid an imminent hazard to the public safety." Id. at 38,226. The notice specifically warned that any unauthorized activity respecting the drug was henceforth unlawful and subject to criminal penalties. Ibid. On October 13, 1988, the Administrartor extended the duration of the temporary listing for an additional six months, through April 15, 1989, or until completion of rulemaking proceedings to schedule the drug on a permanent basis, whichever occurred first. 53 Fed. Reg. 40,061. On April 13, 1989, 4-methylaminorex was permanently listed as a Schedule I controlled substance. 54 Fed. Reg. 14,799. Petitioners' offenses occurred after the temporary listing of 4-methylaminorex in October 1987, but prior to the permanent listing of the drug in April 1989. 3. In this criminal prosecution, petitoners challenged the constitutionality of 21 U.S.C. 811(h), contending that Congress had impermissibly delegated to the Attorney General its power to criminalize activity concerning 4-methylaminorex by authorizing him to list the drug as a Schedule I controlled substance on a temporary basis. Petitioners also contended that the Attorney General could not delegate his temporary listing authority to the Administrator of the Drug Enforcement Administration. The district court rejected both challenges. Pet. App. 53a-56a. 4. The court of appeals likewise rejected petitioners' challenges to the temporary scheduling procedure and affirmed their convictions. Pet. App. 1a-30a. a. The court of appeals first held that Congress had not impermissibly delegated its legislative power to the Attorney General by authorizing him to list drugs as controlled substances on a temporary basis. Pet. App. 8a-19a. The court noted that this Court has sustained broad assignments of authority to the Executive Branch, as long as the relevant Act of Congress lays down an "intelligible principle" to which the responsible official is directed to conform. Id. at 9a-10a (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989), and J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). The court of appeals also rejected petitioners' contention that a more stringent non-delegation standard should be applied in this case because Section 811(h) permits the Attorney General to "create" crimes. Pet. App. 10a-14a. It explained that this Court has not in fact applied a more stringent test in considering the validity of statutes authorizing administrative regulation of conduct giving rise to criminal liability, Pet. App. 11a-12a; and that Section 811(h) does not in any event authorize the Attorney General to define primary criminal conduct, since it is Congress that has made it unlawful to manufacture or possess controlled substances, Pet. App. 12a-13a. After thus concluding that the "intelligible principle" test articulted in this Court's cases is applicable here, the court of appeals found that test satisfied because 21 U.S.C. 811(h)(6) specifically requires the Attorney General to consider three factors: (1) the history and pattern of abuse of the drug; (2) the scope, duration, and significance of abuse; and (3) the risk to the public health. Pet. App. 14a-15a. In its view, these standards provide at least as much guidance as the "public convenience, interest, and necessity" standard that was found to be sufficient to guide the Federal Communications Commission in National Broadcasting Co. v. United States, 319 U.S. 190, 225-226 (1943), or the "excessive profits" standard for renegotiation of wartime contracts that was sustained in Lichter v. United States, 334 U.S. 742, 783-787 (1948). Pet. App. 15a. Moreover, the court of appeals believed that the constitutionality of Section 811(h) was reinforced by the limited scope of the temporary scheduling, which "can be viewed as preliminary to and in aid of the permanent scheduling authority as set forth in section 811(a)," Pet. App. 15a, and by the practical necessities of the situation confronting Congress. The court observed that Congress had found the permanent listing procedures inadequate to address the situation of "designer drugs" that are similar to listed substances but contain slight variations, and it noted that the purpose of the temporary listing authority is to "avoid an imminent hazard to the public safety," 21 U.S.C. 811(h)(1), by imposing an "'emergency control'" during the interim between identification of a drug that presents a major abuse problemand the permanent scheduling of the substance -- a period during wich "'enforcement actions against traffickers are severely limited and a serious health problem may arise.'" Pet. App. 14a, 16a (quoting S. Rep. No. 225, 98th Cong., 2d Sess. 264, 265 (1984)). Finally, the court rejected petitioners' contention that the the preclusion of judicial review of an order listing a drug on a temporary basis (see 21 U.S.C. 811(h)(6)) renders Section 811(h) an unconstitutional delegation of legislative power. Pet. App. 17a-18a. The court pointed out that Congress has foreclosed judicial review in a variety of other administrative contexts. Ibid. It also expressed the view that Section 811(h)(6) does not necessarily bar judicial review of the application of the temporary scheduling authority in a criminal prosecution, if the defendant claims that the listing of the particular drug does not satisfy the standards in Section 811(h). Pet. App. 8a n.2, 18a. But in this case, the court noted, petitioners "do not contend that Euphoria cannot be scheduled as a Schedule I narcotic or that the temporary scheduling of the substance did not meet the standards set forth in 21 U.S.C. Section 811(h)." Pet. App. 8a. b. The court of appeals next held that the Attorney General has the statutory authority under 28 U.S.C. 510 to delegate his temporary listing authority under Section 811(h) to the Administrator of the Drug Enforcement Administation. Pet. App. 19a-22a. The court noted that the general rule is that in the absence of a contrary expression by Congress, powers conferred on an Executive Branch officer may be delegated to a subordinate official, id. at 20a-21, and it found no support for the proposition that Congress intended sub silentio to create an exception to the Attorney General's broad delegation authority under 28 U.S.C. 510 in the context of the listing of controlled substances on a temporary basis pursuant to 21 U.S.C. 811(h). /3/ The court further found that the Attorney General did, in fact, delegate his Section 811(h) authority to the Administrator of the Drug Enforcement Administration. Pet. App. 22a-24a. c. Judge Hutchinson dissented. Pet. App. 30a-43a. He agreed with the majority that the record did not suggest that the Attorney General acted arbitarily or otherwise imporperly in temporarily listing Euphoria as a controlled substance under Section 811(h) or that Euphoria is not a danger to the public safety. Pet. App. 31a. Judge Hutchinson also accepted the majority's analysis of the statutory background and the nature of the problem to which Section 811(h) is addressed, ibid., and he concluded that Section 811(h)'s purpose of avoiding "'an imminent hazard to the public safety' is in and of itself an intelligible principle under the teachings of the Supreme Court." Id. at 35a (citing National Braodcasting Co. v. United States, 319 U.S. at 225-226, and Lichter v. United States, 334 U.S. at 783-787). But Judge Hutchinson nevertheless believed that Section 811(h) unconstitutionally delegates Congress's legislative power because, in his view, it authorizes the Attorney General to define primary criminal conduct and therefore should be subject to a more stringent non-delegation test. Pet. App. 35a-43a. /4/ ARGUMENT The court of appeals correctly held that Section 811(h) does not constitute an impermissible delegation by Congress of its "legislative Powers" under Article I of the Constitution. Congress, not the Attorney General, decided that the manufacture and possession of substances having certain properties should give rise to criminal liability. As both the majority and dissenting opinions below concluded, the standards that Congress enacted for identifying such substances satisfy the "intelligible principle" test that this Court has consistently applied in considering challenges to Acts of Congress under the non-delegation doctrine. Finally, contrary to Judge Hutchinson's view in his dissenting opinion below, a more stringent test is not warranted here on the ground that the manufacture or possession of drugs that are temporarily listed as controlled substances gives rise to criminal liability -- especially since the temporary listing authority is in aid of the permanent listing authority, the constitutionality of which petitoners do not question, and since Section 811(h) therefore does not authorize the Attorney General effectively to criminalize conduct in an "uncharted field." Pet. App. 12a (quoting Fahey v. Mallonee, 322 U.S. 245, 250 (1947)). Although in our view the decision below is correct, we agree with petitioners that the Court should grant review in this case. The Ninth Circuit, like the Third Circuit in this case, has sustained the constitutionality of Section 811(h) against an unconstitutional delegation challenge. United States v. Emerson, 846 F.2d 541 (9th Cir. 1988). In conflict with those decisions, however, the Tenth Circuit has recently held Section 811(h) unconstitutional on the ground that it impermissibly delegates Congress's legislative powers to the Attorney General. United States v. Widdowson, 916 F.2d 587 (10th Cir. 1990) (Pet. App. 67a-78a). This circuit conlfict warrants resolution by this Court because it concerns the constitutionality of an Act of Congress and because it calls into question on a nationwide basis the validity of an important component of Congress's statutory program to control the manufacture and dissemination of dangerous drugs. Congress found that Section 811(h) was necessary to institute "'emergenc control'" of dangerous "designer drugs," which closely resemble already-scheduled substances, pending the permanent listing of such drugs. Pet. App. 16a (quoting S. Rep. 225, supra, at 265). The Tenth Circuit also held in Widdowson, likewise in conflict with the decision below, that the Attorney General may not in any event delegate his temporary listing authority under 21 U.S.C. 811(h) to the Administrator of the Drug Enforcement Administration. /5/ This additional conflict also warrants review because it presents an important question of the authority of the Attorney General to depend upon the accumulated expertise of the Administrator in the rapidly changing area of designer drugs and because the Tenth Circuit's holding in Widdowso that the Attorney General may not do so departs from this Court's precedents regarding the appropriateness of delegations to subordinate Executive Branch officials. See Pet. App. 19a-22a. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney DECEMBER 1990 /1/ Pub. L. No. 91-513, tit. II, 84 Stat. 1245. /2/ Pub. L. No. 98-473, tit. II, Section 508, 98 Stat. 2071. /3/ Because the court found adequate subdelegation authority under 28 U.S.C. 510, it did not reach the question whether 21 U.S.C. 871(a) provided an independent basis for such delgation. Pet. App. 21a n.4. /4/ Because he believed that Section 811(h) is unconstitutional, Judge Hutchinson did not reach the question of the statutory validity of the Attorney General's delegation of his temporary listing authority to the Administrator of the Drug Enforcement Administration. Pet. App. 31a n.1. /5/ In Emerson the Ninth Circuit held that the Attorney General had not properly delegated his temporary scheduling authority under Section 811(h) to the Administrator. That aspect of Emerson has been mooted by the July 1, 1987, clarification that the Attorney General intended the Administrator to exercise all Section 811 scheduling functions. See 52 Fed. Reg. 24447.