United States District Court, E.D. California
ORDER DENYING DEFENDANT'S MOTION FOR
RECONSIDERATION (DOC. NO. 475)
matter is before the court on defendant's motion for
reconsideration. (Doc. No. 475.) Defendant requests that the
court reconsider an aspect of its May 16, 2018 order (Doc.
No. 474), denying his motion to strike as surplussage or
dismiss reference to XLR11 as an analogue in the indictment.
(Doc. No. 367.)
motion to strike, defendant Way contended that his
prosecution for conduct related to the substance known as
XLR11 violated the Administrative Procedure Act (APA). The
court rejected this argument, finding that the Analogue Act
does not provide for the creation of “rules” that
would be subject to the requirements of the APA, either
through notice-and-comment proceedings or through publication
in the Federal Register. Defendant does not challenge this
conclusion. Instead, defendant now contends that in its order
the court failed to address his alternative argument, that in
the absence of APA compliance the actions taken by DEA
pursuant to the Analogue Act violate the non-delegation
doctrine as discussed in Touby v. United States, 500
U.S. 160 (1991).
of a prior order is an extraordinary remedy “to be used
sparingly in the interests of finality and conservation of
judicial resources.” Kona Enters., Inc. v. Estate
of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation
omitted); Pyramid Lake Paiute Tribe of Indians v.
Hodel, 882 F.2d 364 n.5 (9th Cir. 1989) (“[T]he
orderly administration of lengthy and complex litigation such
as this requires the finality of orders be reasonably
certain.”). For this reason, a motion for
reconsideration “should not be granted . . . unless the
district court is presented with newly discovered evidence,
committed clear error, or if there is an intervening change
in the controlling law.” 389 Orange St. Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citing
Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263
(9th Cir. 1993)).
has not presented the court with any newly discovered
evidence, nor has he suggested an intervening change in law.
Accordingly, the court construes defendant's motion as
contending that denial of defendant's motion to strike
constituted clear error.
original motion to strike made only the briefest of
references to the non-delegation doctrine. (Doc. No. 367.)
Indeed, the phrase itself is used only once in that motion.
(Id. at 2.) Moreover, the court notes that
defendant's motion to strike did not discuss the legal
contours of the non-delegation doctrine, nor was any
authority cited by the defense even suggesting that the
Analogue Act, as opposed to the temporary scheduling
provisions of the Controlled Substances Act, is deficient
under the non-delegation doctrine. Of course,
“[a]rguments made in passing and not supported by
citations to the record or to case authority are generally
deemed waived.” United States v. Graf, 610
F.3d 1148, 1166 (9th Cir. 2010) (citing United States v.
Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006)).
and for the sake of completeness, the court will liberally
construe defendant's motion to strike and address the
argument he now advances, albeit without any precision, that
in the absence of APA compliance the actions taken by DEA
with respect to XLR11 pursuant to the Analogue Act violate
the non-delegation doctrine.
non-delegation doctrine, broadly speaking, provides that
“Congress may not constitutionally delegate its
legislative power to another branch of Government.”
Touby, 500 U.S. at 165. “The nondelegation
doctrine is rooted in the principle of separation of powers
that underlies our tripartite system of Government.”
Mistretta v. United States, 488 U.S. 361, 371
(1989). Courts have long recognized, however, “that the
nondelegation doctrine does not prevent Congress from seeking
assistance, within proper limits, from its coordinate
branches.” Touby, 500 U.S. at 165 (citing
Mistretta, 488 U.S. at 372). Thus, “[s]o long
as Congress ‘lays down by legislative act an
intelligible principle to which the person or body authorized
to act is directed to conform, such legislative action is not
a forbidden delegation of legislative power.'”
Id. (quoting J.W. Hampton, Jr., & Co. v.
United States, 276 U.S. 394, 409 (1928)).
addressed the question of whether the Controlled Substances
Act violated the non-delegation doctrine, given that it
delegated to the Attorney General temporary discretion to
schedule controlled substances. Id. In
Touby, the Supreme Court determined that it did not.
As noted, following the decision in Touby, it
appears that no court has found that the Analogue Act
violates the non-delegation doctrine. Those courts to have
addressed this question have concluded that the Analogue Act
does not violate the non-delegation doctrine. See United
States v. Waddell, No. 14-03012-CR-S-BP-01, 2015 WL
997713, at *2 (W.D. Mo. Mar. 6, 2015); United States v.
McMillin, No. 2:13-CR-04052-BCW, 2015 WL 778866, at *8
(W.D. Mo. Feb. 24, 2015). This court agrees with these
decisions. Indeed, the Analogue Act does not confer on DEA
any authority to determine whether various substances
constitute controlled substance analogues as a matter of law
because whether an alleged analog is substantially similar to
a controlled substance is for the jury to decide. See
United States v. Long, 15 F.Supp.3d 936, 942 (D.S.D.
2014); United States v. Fedida, 942 F.Supp.2d 1270,
1279 (M.D. Fla. 2013).
the Analogue Act does not run afoul of the non-delegation
doctrine because it delegates no lawmaking authority to the
DEA to determine substantial similarity.
these reasons, defendant's motion for reconsideration