A federal appellate court has rejected the latest effort by a Washington State doctor who is seeking to legally use psilocybin to treat cancer patients in end-of-life care, ruling that the Drug Enforcement Administration (DEA) provided a reasonable explanation in denying the doctor’s request.
In an opinion filed on Thursday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejected arguments from lawyers for Dr. Sunil Aggarwal and his clinic, the Advanced Integrated Medical Science (AIMS) Institute that DEA’s denial of Aggarwal’s efforts was arbitrary and capricious
“DEA’s decision to deny AIMS’s request was neither arbitrary nor capricious,” the court concluded. “We therefore deny AIMS’s petition for review of the DEA’s decision.”
Aggarwal and AIMS have been working since at least 2020 to find a way to legally obtain psilocybin for patients in palliative care, initially seeking to win permission from regulators under state and federal right-to-try laws.
When DEA rebuffed that request, Aggarwal sued. In early 2022, a federal appellate panel dismissed the lawsuit, opining that the court lacked jurisdiction because DEA’s rejection of Aggarwal’s administrative request didn’t constitute a reviewable agency action.
The latest Ninth Circuit ruling results from Aggarwal’s responses to that ruling. In February 2022, the doctor filed a formal petition with DEA to reschedule psilocybin from Schedule I to Schedule II under the federal Controlled Substances Act (CSA)—the denial of which is a reviewable action. He also applied for a regulatory waiver to obtain psilocybin.
DEA denied Aggarwal’s petition in September 2022 and rejected the waiver request the next month. The doctor’s Ninth Circuit case challenged both decisions.
“Following the dismissal of its earlier petition, AIMS returned to DEA with a concrete request. AIMS asked EA to exempt Dr. Aggarwal from registration under the CSA, either by finding that Dr. Aggarwal’s proposed use of psilocybin was not covered by the CSA’s registration requirement or by waiving the registration requirement,” Judge Marsha Berzon, a Clinton appointee, wrote for the court in Thursday’s opinion. “DEA declined to take action, and AIMS again petitioned for review. Because DEA’s response was neither arbitrary nor capricious, we deny AIMS’s petition for review.”
Hellbound and Down 