Petition for Writ of Certiorari — Jeffrey W. Young, Jr., Petitioner v. United States

No. 26-

IN THE

SUPREME COURT OF THE UNITED STATES

Jeffrey W. Young, Jr.

Petitioner

VB.

The United States of America

Respondent

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

se Ferguson McNeil Law Firm, P.A.

eeaercomnmemmnas REPRESEN T eeenermeeamnnn

Claiborne H. Ferguson

Appointed CJA Counsel

294 Washington Avenue

Memphis, Tennessee 38103

Tel.: (901) 529-6400

Fax: (901) 202-2053

Email: claiborne@midsouthcriminaldefense.com

I. Question Presented

Whether the lower federal court lacked subject matter jurisdiction

over the defendant, who was an authorized practitioner with the authority

to administer drugs as part of his practice at the time of the alleged

offense, due to the lower court’s improper reliance on regulatory

definitions and testimony outside of the U.S. Code that regulates the

distribution of drugs in the practice of medicine?

In other words, did this Court’s holding in Loper foreclose the

Attorney General’s reliance on a CFR to define what constituted a

legitimate prescription versus “illegal drug dealing” when the defendant

was licensed to administer the controlled substances under the Controlled

Substance Act?

XI.

Il. Table of Contents

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Table of Authorities..........cccsesceseceecneeeasee nec neseeenanseeeenectseeneenes li

Petition for Writ of Certiorari.........cccccccceeeeeseseen eee teneenereaeeeeeaee 1

Opinions Below.........cccccccccceeneeeeceeeenseeanea ee ceasaseeneer teases ansates 1

JULVISGICHION. ..c6..ccccceee cece ce eteecneeceusen san eeeneeeea een seeeeeens ste sae ene eeenee 1

Constitutional Provisions Involved...........cceccceseeenseeecenesen san eeeees 2

Statement of the Case....cccccseccccsessneveceneceeeseeneeeeeene nesses sun eee setae 2

REASONS FOR GRANTING THE WRIT.......:.cccseeccesettereeerneeees 6

CONCLUSION... cccccccccetesceccteeecenesesencee eee seeseeeeeane ree seeaeneenees 24

APPENDIX.......:ccsecccessssesceennecceseesaseeeeus essence eceeeeesseteeeeseeaees 25

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IV. Petition for a Writ of Certiorari

Jeffrey W. Young, Jr., an inmate currently incarcerated at the Federal

Medical Center in Lexington, Kentucky, by and through Claiborne H.

Ferguson, private attorney and appointed CJA counsel for this matter,

respectfully petitions this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Sixth Circuit.

This Writ is limited to the controversy before the Sixth Circuit, and the

arguments are abbreviated for the purpose of the Court's review of the issues.

Should this Court accept this Writ, additional briefing would be submitted to

fully expand on the nature of the controversy before the Court.

V. Opinions Below

The decision by the United States Court of Appeals for the Sixth

Circuit affirming the district court’s judgment is reported as United States of

America v, Jeffrey W. Young, Jr., 24-5430, (6 Cir. App., 2025). The Sixth

Circuit affirmed the lower court’s judgment and denied Mr. Young’s appeal.

This opinion was not recommended for publication and is attached at

Appendix (‘App.”) at x-x.

VI. Jurisdiction

Mr. Young’s case was heard by the United States Court of Appeals for

the Sixth Circuit, and his appeal was denied. Mr. Young invokes this Court's

jurisdiction under Article III, Section 2 of the United States Constitution and

28 U.S.C. § 1254, having timely filed this petition for a writ of certiorari

within ninety days of the Sixth Court of Appeal’ judgment.

VII. Constitutional Provisions Involved

This case involves the collision of the U.S. Constitution, the Administrative

Procedure Act, Loper! and the Gevernment’s use of the Federal Regulations to define a

crime. Therefore, the following provisions are involved.

1. Article III, Section 2 (Federal Jurisdiction) - extends federal power to

all cases involving federal laws, admiralty and maritime jurisdiction,

providing the authority for federal courts to prosecute crimes.

2. Article III, Section 2, Clause 3 (Venue/Jury) - Specifies that the trial of

all crimes, except impeachment, shall be by jury and held in the state where

the crimes were committed.

3. Sixth Amendment (Rights of the Accused) - Defines the venue for

criminal trials as the “state and district wherein the crime was committed.”

VIII. Statement of the Case

Federal courts have subject matter jurisdiction over prosecutions

alleging violations of the federal criminal laws. 18 U.S.C. § 3231 (The district

courts of the United States shall have original jurisdiction, exclusive of the courts of

1 Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (Loper was pending but not yet

decided at the time of the hearing on the Motion to Dismiss in the trial court).

the States, of all offenses against the laws of the United States.”) A “motion [asserting

that the court lacks jurisdiction may be made at any time while the case is pending.”

Fed. R. Crim. P. 12(b)(2).

According to the Sixth Circuit,

Lack of subject matter jurisdiction may be raised at any time in the

course of a proceeding and is never waived. Matters of jurisdiction

may be raised at any time, because if a court lacks subject matter

Jurisdiction, it does not have power to hear the case. Article ITI,

Section 2 of the Constitution.

United States v. Adesida, 129 F.3d 846, 850 (6 Cir. 1997), cert denied, 1998

U.S. LEXIS 3074 (May 4, 1998). “Moreover, federal courts have a duty to

consider their subject matter jurisdiction on regard to every case and may

raise the issue sua sponte.” Answers in Genesis of Ky. Ine. v. Creation

Ministries Int’, Ltd., 556 F.3d 459, 465 (6 Cir. 2009)

Federal courts lack subject matter jurisdiction to hear a criminal case

when the indictment does not actually charge a federal crime. “If an

indictment does not charge a cognizable federal offense, then a federal court

lacks jurisdiction to try a defendant for violation of that offense.” Adesia, 129

F.3d at 850 (citing United States v. Armstrong, 951 F.2d 626, 628 (5" Cir.

1992)). “If the govnerment fails to plead conduct that is consistent with a

violation of a criminal statute, the indictment or information is subject to

dismissal for failure to state an offense.” United States v. Tomahawk, 2018

U.S. Dist. LEXIS 19829 (D.N.D. Feb 7, 2018): See, also, United States y.

Bowling, 2010 U.S. Dist. LEXIS 129708 (E.D. Ky. Dec. 7, 2010) (Defendant

“could challenge the Court’s subject matter jurisdiction of the indictment

charged something that was not a crime...”) (id at *4-6, italics in original).

This case presents the question of whether the lower court lacked

subject matter jurisdiction over the Defendant, as the charges brought

against him relied on applying regulations and testimony outside of a plain

reading of 21 U.S.C. § 841(a). This improper buttressing of the statute allowed the

Government to supersede congressional authority and apply its own meaning to the

law to bring prosecution against the Defendant. Specifically, the government had to

rely on CFR § 1306.04 - Purpose of Issuing a Prescription to define the crime charged.

This reliance on the regulatory scheme runs afoul of the Administrative Procedure

Act, Article III, Section 2 of the U.S. Constitution, and this Court's holding in Loper.

The specific language of the CFR that the indictment relied upon is in CFR §

1306.04(a):

A prescription for a controlled substance to be

effective must be issued for a legitimate medical

purpose by an individual practitioner acting in the

usual course of his professional practice.....

The government argues that this regulatory language gives it the

power to determine if a properly licensed medical provider's prescriptions are

illegal within the meaning of the Controlled Substance Act. However, the

Controlled Substance Act does not contain this authority or power and only

regulates who can write prescriptions, and not what constitutes the practice

of medicine versus illegal drug dealing.

Because the indictment against the Defendant failed to state a

cognizable federal offense, the lower court did not have subject matter

jurisdiction to hear the charges brought against him.

Jeffrey Young began his practice as an up and coming nurse

practitioner who opened a clinic in rural Tennessee. Some of his former

colleagues initially described him as a competent medical professional with

whom they were excited to work together with; one even reported leaving her

old job to work with him at his new location. While the clinic initially served

older people concerning their health, with clientele running in the 60-year-old

range, younger and younger patients began to filter in as Young began to

delve more and more into the practice of administering various opioid drugs

for pain relief.

This practice of administering opioids allegedly became so pervasive

that some of his employees, as well as family members of patients, began to

confront Young, saying that his actions were putting patients at risk. One of

these patients included Hope Rogers, who became pregnant while under

Young’s care. He continued to prescribe her opioids throughout her

pregnancy, and her child was allegedly born addicted to opioids. Jeff Young

was eventually arrested and charged with violations of multiple U.S. statutes,

including 21 U.S.C. § 846, 21 U.S.C. § 841), 21 U.S.C. § 856(a(D, 21 U.S.C. §

861(), and 18 U.S.C. § 2. Young pled not guilty on all counts.

12.« REASONS FOR GRANTING THE WRIT

A The government’s use of CFR § 1306.04 and medical “expert testimony” does

not comport with the statutory requirements found in 21 U.S.C. 841() that outlines

when a person has unlawfully administered opioid drugs.

The charges against Mr. Young state that he failed to administer drugs

in a legal, safe way and that his actions constituted violations of 21 U.S.C.

841(a). The government attempted to prove this by applying 21 US.C. §

1306.04 to the Controlled Substances Act, saying in the indictment that a prescription

for a controlled substance is not legal “unless issued for a legitimate medical purpose

by a practitioner acting in the usual course of professional practice.” D.E.40,15, Page

ID 88. This is a misrepresentation of the law and an improper construction of 21

U.S.C. 841 (a).

Namely, the government improperly constructed several key phrases

in section 841(a) to justify the charges it brought against Young. While the

government admitted that Young was a licensed nurse practitioner,

maintained a Drug Enforcement Administration registration number, and

operated a medical clinic, it also argued that his methods, including prolific

prescriptions of opioids, continuing opioid treatment when a patient came to

him from another doctor with the same treatment plan, and administering

opioids to a pregnant woman, all constituted acts that were in violation of 21

U.S.C. § 841(a), when viewed through the lens of 21 C.F.R. § 1306.04(a).

The government accomplished this by improperly attaching a

conditional authorization to the word “authorization” found in the statute,

arguing that the distribution of medicines that normally require a

prescription is unauthorized if the distribution is made without a ‘legitimate

medical purpose and outside the course of professional practice.” The

government accomplished this, both before the grand jury and at trial, by

using opinion testimony from a paid medical expert to address whether the

defendant, a licensed medical practitioner, was operating a “legitimate

medical practice,” with the intent of proving that the prescriptions he

administered were unauthorized. To the government’s mind, but not that of

Congress, the defendant’s actions were therefore unlawful and criminal,

which would put him in the federal court’s jurisdiction.

To allow the government to apply this constrained and contrived

definition of the statute allows a massive overreach into the powers conferred

upon Congress, that is, the powers to determine what conduct constitutes a

cognizable federal offense. Gorsuch wrote in his dissenting opinion in Gundy

v. United States, “I remain hopeful that the Court may yet recognize, while

Congress can enlist considerable assistance from the executive branch in

filling up the details and finding facts, it may never hand off to the nation’s

chief prosecutor the power to write his own criminal code. That “is delegation

running riot.” Gundy v. United States, 139 8. Ct. 2116, 2148, 204 L.Ed.2d 522,

556-57 (2019).

The Defendant’s conduct was not “unlawful” in the face of a plain

reading of § 841(a) for three reasons:

1.The Attorney General lacked authority to imply a conditional

authorization to the § 841(a) textual exception.

2. The Attorney General's regulation (CFR § 1306.04), which made the

authorization conditional, failed to follow the Administrative Procedeure Act,

rendering the act null and void.

3. The Attorney General's regulation does nothing more than “parrot” selected

language from the Controlled Substances Act. This “regulation” adds no interpretive

analysis to the statute and deserves no deference whatsoever in the wake of the death

of Chevron and the rise of Loper.

a. The Attorney General's regulation (CFR § 1306.04), which made the

authorization conditional, failed to follow the Administrative

Procedeure Act, rendering the act null —_ and void.

The Controlled Substances Act, hereinafter referred to as the C.S.A.,

provides useful definitions when determining whether the Defendant was

authorized to prescribe medications, including opioids. The relevant terms in

this case are “valid prescription,” “legitimate medical purpose,” and “in the

usual course of professional practice.” The Attorney General used each of

these terms in 21 C.F.R. § 1300, et seq., which is the primary source of the

Government’s claim of prosecutorial authority. Congress did not use these

terms in the context that the government wished to apply to the Defendant in

this case.

“Valid prescription” first appears in § 802 (Definitions), subsection (58),

but the phrase defines the term “refilling prescriptions for controlled

substances in Schedule Ill, IV, or V, and limits the term to a “valid

prescription that meets the requirements of subsection (b) and (c) of section

829 of this title. Mr. Young was only ever charged with dispensing schedule II,

Ill, and IV substances. (See, ECF NO. 3, Indictment). A further reading of

section 829 reveals no definitions that would place the Defendant in the

district court’s jurisdictional crosshairs. No definition for “valid prescription”

appears in the Controlled Substances Act as it relates to a Schedule II

controlled substance dispensed by a medical practitioner to his or her patient.

“Legitimate medical purpose” also has multiple definitions under the

various aspects of the C.S.A., and they fail to apply to the allegations levied

against Mr. Young. While “legitimate medical purpose” does appear, notably

in § 830, where it is used to help define “valid prescription,” and the

definition is only applicable to that one paragraph or to the reports required

to be made to the Attorney General every two years relating to the regulation

of pill-making machines and chemical compounds used in manufacturing

controlled substances. 21 U.S.C. § 830(b)(3)(A)Gi). This definition does not

apply to Mr. Young's alleged conduct. Furthermore, the “as authorized”

language of 21 U.S.C. § 841(a) is not written conditionally. There is no

implication in the words of the statute that a licensed medical professional is

authorized to distribute prescription medications ifthe distribution is for a

“legitimate medical purpose” or in the “usual course of professional practice.”

There is no conditional authorization written in the statute at all.

Also of note is the fact that the C.S.A. contains no definition of the

words “authorized” or “except as authorized” being tied to a standard of care,

to a legitimate medical purpose, or to the idea of a course of professional

practice. The C.S.A. does not define “authorized” or “except as authorized”

one time in its entire body. Any definition that the Attorney General, the

Department of Justice, or any federal court reads into the word “authorized”

as being conditioned on the distribution being for a legitimate medical

purpose or within the usual course of professional practice is of their own

invention; they are inserting text into the statute that was not crafted by

Congress.

The C.S.A. continues to be instrumental in showing that the Attorney

General does not have the authority to issue a regulation stating that a

prescription is “effective” if given “for a legitimate medical purpose in the

usual course of his professional practice.” While the Attorney General does

have the authority to issue regulations concerning controlled substances and

register medical personnel applying for distribution licenses, these privileges

are strictly limited by statute. The defendant recognizes that Congress,

through the C.S.A., grants the Attorney General authority to promulgate

rules and regulations relating to the “control” of the dispensing of controlled

substances. However, Congress clarified the use of the word “control” as used

in the C.S.A. in 21 U.S.C. § 802(5). 802(5) directs that “control,” as used in

this subchapter” (that is, “Control and Enforcement,” which includes § 821

10

and § 841) means “to add a drug or other substance, or immediate precursor,

to a schedule under Part B of this subchapter, whether by transfer from

another schedule or otherwise.” The Attorney General has the authority to

issue regulations relating to the registration of those “authorized” to

distribute controlled substances and to “control” the distribution by adding a

drug to a schedule as defined elsewhere in the C.S.A.

Nowhere in the C.S.A. or elsewhere did Congress give the Attorney

General authority to issue a regulation mandating that a prescription is

“effective” only if given for a “legitimate medical purpose in the usual course

of his professional practice.” (See, 21 C.F.R. § 1306.04)

The Sixth Court of Appeals, in affirming the lower court’s ruling and

denying Young’s appeal, held that United States v. Moore, 423 U.S. 122 (1975)

was controlling in this case. The Sixth Court determined that Young was

punishable under 18 U.S.C. § 841 as a registered distributor of controlled

substances because he “exceeded the bounds of professional practice.” United

States of America v. Jeffrey W. Young, Jr., 24-5430, (6 Cir. App., 2025). The

Sixth Circuit also held that the lower district court did not apply Chevron

and Auer deference when it denied Young’s motion to dismiss on improper

jurisdiction grounds, saying that the lower court did not need to rely on 21

C.F.R. § 306.04 (1978) (identical to 21 C.F.R. § 1806.04) to determine that

Young was punishable under the statute. The Sixth Circuit held that the

United States Supreme Court, “held that both the ‘scheme’ of the CSA and its

ii

legislative history ‘veveall] an intent to limit a registered physician’s

dispensing authority to the course of his ‘professional practice.” United

States of America v. Young, 24-5430, (6 Cir. App., 2025) (citing United

States v. Moore, 423 U.S. 122 at 140. The Sixth Circuit determined that,

“regardless of the validity and the applicability of § 1806.04 to § 841(a), the

district court had subject matter jurisdiction to decide Young’s case.” United

States of America v. Young, 24-5480. The Sixth Circuit, besides ignoring the

reliance that the government placed upon 21 C.F.R. § 1306.04 in its own brief,

has misapprehended the implications of relying on the holding of United

States v. Moore in the wake of the Supreme Court’s ruling in Loper Bright

Enterprises v. Raimondo.

Because United States v. Moore gave deference to the government's

regulation, which at the time was § 306.04 and considered extra-textual

legislative history, its holding, as controlling authority, has been abrogated.

Black’s Law Dictioanry says that implied abrogation “takes place when the

new law contains provisions which are positively contrary to former laws,

without expressly abrogating such laws.” (Black’s Law Dictionary, 6** Ed.)

This doctrine is usual and necessary in the common law system, as it saves

this Court from having to comprehensively overrule all prior cases affected by

the new holding. This is particularly true in regard to the Loper overruling of

Chevron, which did away with the “principle of deference.” ?

2 This section on the Moore principles is from the Amicus Brief filed in support of Young’s

appeal and is the principal work of Jerry Gonzalas of Tennessee and can be found at Doc. 50

12

In Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244 (2024), this

Court “overruled” Chevron, but it did not expressly overrule the ten cases

cited by the Chevron court in its footnote or any other prior cases that had

applied the Chevron deference doctrine or deference generally. Loper Bright

instead overruled the principle of deference to agency interpretations of

statutes. Furthermore, any prior cases that relied on said deference to reach

their rulings cannot be used as controlling precedent, even though they were

not expressly overruled.

Loper Bright's holding that courts must now independently interpret

statutory text without deference to an agency’s opinion of what that text

means is “positively contrary” to the deference given to the Attorney

General's regulation in Moore. In fact, every case, prior to Loper Bright,

which gave deference to the Attorney General’s regulation (§ 1306.04) and

incorporated it into the elements of the offense or definitional sections of jury

instructions, is now impliedly abrogated and cannot be cited as authoritative

or to support such continuing practice.

Under the new standard set by Loper Bright, district courts are

required to interpret the text of the Controlled Substances Act and determine

what Congress meant by the term “authorized” without deference to what the

Attorney General would have the term mean. Furthermore, courts must

of the Sixth Circuit appeal record. It has been truncated for the purposes of this Writ. Again,

this issue would be more broadly briefed should the Writ be granted. The opinion in the

Sixth Circuit did not soley rely on Moore in rreaching its decision.

13

determine whether the C.S.A. granted authority to the Attorney General to

even promulgate § 306.04 (197) in the first place.

Many cases following Moore support the implied abrogation of AZoore

because it went beyond the plain text of the C.S.A. and attempted to discern

the legislative intent. “[Llegislative history can never defeat unambiguous

statutory text,” Bostock v. Clayton County, Georgia, 590 U.S. 644, 666 (2020).

The plain, unambiguous text of the C.S.A. does not support the position that

the phrase “except as authorized” is limited or conditioned on a prescription

being for a “legitimate medical purpose,” however, the Attorney General may

wish to construe that phrase to the government’s advantage. It certainly does

not support the position that “legitimate medical purpose” is open to

redefinition to support the prosecutorial whims of the Attorney General. The

words of what is now 21 U.S.C. § 841(a), as well as the words of what is now

21 C.F.R. § 1306.04 had a fixed meaning in 1970 and 1971, respectively, and

they cannot be changed or modified except by Congress.

Just as Loper Bright presented this Court with an opportunity to

reorient the adjudication and implementation of administrative law, this

matter presents this Court with an excellent opportunity to cement in place

the statutory guidelines and restrictions that Congress meant to put in place

with the implementation of, not just 21 U.S.C. § 841, but all statutes that

were previously interpreted and enforced on the now-defunct Chevron

doctrine. Equally importantly, this Court has the opportunity to reinstate the

14

rights and liberty of a man who was convicted by a court that had no

jurisdiction to so do. Absent intervention by this Court, Jeffrey Young will

remain incarcerated by a government that did not have the jurisdictional

authority to put him there, and federal agencies and prosecutors will have

continued opportunities to disregard the new precedent established by this

Court’s Loper Bright ruling.

b. The Attorney General's regulation (CFR § 1306.04), which made the

authorization conditional, failed to follow the Administrative Procedure Act,

which rendering the act null and void.

The APA states that notice of proposed rule-making "shall be

published in the Federal Register," 5 U.S.C. § 553(), and that the agency

"shall give interested persons an opportunity to participate in the rule

making through submission of written data, views, or arguments," id. §

553(c). The purpose of the notice and comment provision is so that agencies

will receive public input, enabling them to craft a better rule than they

otherwise could. "[T]he primary purpose of Congress in imposing notice and

comment requirements for rulemaking" is "to get public input so as to get

the wisest rules." Dismas Charities, Inc. v. U.S. Dep't of Justice, 401 F.3d

666, 680 (6th Cir.2005).

In addition to increasing the quality of rules, the required public

participation helps “ensure fair treatment for persons to be affected by"

regulation. Id. at 678. This "chance to participate" is "one of the central

i5

purposes" of the notice and comment requirement. Id. Hence the statutory

design to "ensure that affected parties" may participate in decision-making

"at an early stage." Id. (quotation omitted). Fairer and wiser rules result from

the APA-required "mature consideration." See id. (quotation omitted); US. v.

Cain, 583 F.3d 408 (6th Cir, 2009).

In U.S. v. Cain, 583 F.3d 408 (6" Cir. 2009) this Court was called on

to determine when the registration requirements of the federal Sexual

Offenders Registration and Notification Act (SORNA) became effective

with respect to a defendant who had been convicted of a sexual offense

before passage of SORNA. The Government indicted defendant Cain for

traveling from Ohio to Georgia and failing to update his sex offender

registration as required by state and federal law. The circuits were split on

whether defendants with pre-SORNA convictions had to comply with

SORNA before the Attorney General issued an implementing regulation.

This Court held that because SORNA explicitly required the Attorney

General to specify the applicability of the Act to persons convicted prior to

the effective date of SORNA, and because the Attorney General did not

promulgate a regulation making that determination in compliance with the

Administrative Procedure Act, Cain was not subject to SORNA's

requirements during the period indicated in the indictment. This Court

16

reversed his convictions and dismissed the case. U.S. v. Cain, 583 F.3d 408,

424 (6th Cir. 2009).

More specifically, and analogous to the case at bar, the Attorney

General in Cain promulgated a regulation stating that SORNA's

requirements “apply to all sex offenders, including sex offenders convicted

of the offense for which registration is required prior to the enactment of that

Act.” 28 C.F.R. § 72.3. Id. at 413. The AG also claimed that the rule

qualified for the 'good cause! exceptions to the Administrative Procedure

Act's notice and comment requirement and to the APA's requirement that

regulations be published at least thirty days before their effective date. Id.:

See also 5 U.S.C. § 553(b)(B), (d)(3). The Court reminded the AG that "the

general rule [is] that criminal statutes are to be strictly construed against the

Government.” Id. at 414 (citing United States v. Monasterski, 567 F.2d 677,

681-82 (6th Cir.1977) (citations omitted))..

Because the Attorney General’s regulation in this case creates new

criminal liability on the acts or omissions of “authorized” prescribers, it is

quintessentially legislative, as compared with regulations that merely restate

or interpret statutory obligations. Jd. at 420. This contrasts with interpretive

rules, not subject to notice and comment requirements. /d.; See also 5 U.S.C,

§ 553(b)(A). The AG cannot claim under § 553(b)(A) to be merely

17

"explicating Congress' [s] desires" rather than "adding substantive content of

[his] own." Zd. (citing Dismas Charities, 401 F.3d at 680 (quotation omitted).

Rather, the regulation at issue is a substantive rule that "make[s]" or

"create[s] law." See Id. at 679 (quotations omitted). And when an agency

acts in this legislative capacity, Congress generally requires the agency to

follow the quasi-legislative notice and comment procedures of the APA. Jd.

Here, the AG failed to proceed through the notice and comment rulemaking process when it crafted definitions to graft onto 21 US.C.§841 (as

described above), which the APA requires before an agency's regulation can

“have the force and effect of law.” Perez v. Mortgage Bankers Assn., 575

U.S. 92, 96 (2015) (internal quotation marks omitted); See also, 5 U.S.C.

§553. The fact that in this case, the AGs regulation “imposes a new

obligation, on pain of severe criminal sanctions,” heighten the need for

protections against an agency engaging in “quasi-legislation.” Cain, at 422

(citing United States v. Picciotto, 875 F.2d 345, 346 (D.C.Cir. 1989)

(holding that a criminal prosecution based on an agency rule must be “held

to the strict letter of the APA”).

The AG never submitted any proposed rules or regulations that make

the “except as authorized” provision of § 841(a) is conditioned on the AG's

opinion of what is a “legitimate medical purpose.” Nor has the AG ever

18

submitted any proposed rules in the Federal Register defining the terms “in

the course of professional practice” or “legitimate medical purpose” in clear

terms so that physicians and others have an unambiguous understanding of

conduct that would be deemed unlawful and criminal and had an opportunity

to comment on a proposed rule.

Indeed, the Supreme Court addressed the need for rulemaking to

define the term “legitimate medical purpose:”

All would agree, we should think, that the statutory

phrase ‘legitimate medical purpose’ is a generality,

susceptible to more precise definition and open to

varying constructions, and thus ambiguous in the

relevant sense...To begin with, the rule must be

promulgated pursuant to authority Congress has

delegated to the official.

Gonzales v. Oregon, 546 U.S. 243, 258 (2006), (citing United States v Mead

Corp, 533 U.S.218, 226-227 (2001). “Who decides whether a particular

activity is in ‘the course of professional practice’ or done for a legitimate

medical purpose” was the “central issue in” Gonzales and, as the Court

concluded, the AGs regulation “gives little or no instruction” on this central

issue. Gonzales, at 257. The AG still has not taken up the Supreme Court’s

call to clarify this issue.

The Supreme Court has even held that the authority of the AG to

make rules regarding controlled substances is extremely limited.

i9

Under Gonzales, the Court opined that the CSA gave the AG limited

powers, to be exercised in specific ways. /d. at 259. The rule-making

authority is limited under 21 U.S.C. § 821 to promulgate rules and

regulations relating to the registration and control of dispensing, of

controlled substances and under 21 U.S.C. § 871(b) to promulgate and

enforce rules he may deem necessary and appropriate for the efficient

execution of his functions “under this subchapter.” See, 21 U.S.C. § 871(b).

Congress did not delegate to the AG authority to carry out or effect all

provisions of the CSA. Rather, he can promulgate rules relating only to

7

“registration” and “control,” and “for the efficient execution of his functions’

under the statute. Gonzales, at 259

In the above context, “control” only means to add a drug to a schedule

under part B of the CSA but does not mean that the AG is free to make up

his own rules unrelated to the narrowly focused expressed limits placed on

him by Congress. Gonzales, at 260 (quoting § 802(5)).

As Gonzales said:

The statutory references to “control” outside the

scheduling context make clear that the Attorney General

can establish controls “against diversion,” e.g., §823(a)(1),

but do not give him authority to define diversion based on

his view of legitimate medical practice. As explained

below, the CSA’s express limitations on the Attorney

General's authority, and other indications from the

20

statutory scheme, belie any notion that the Attorney

General has been granted this implicit authority.

Gonzales, at 260 (emphasis added). But this is precisely what the

Government has done by introducing state guidelines, etc. through an expert,

and the courts, unfortunately, have allowed it - largely because it has not

been challenged.

In sum, the Attorney General was given authority by Congress to

implement rules and regulations for the “control” of CS (meaning what

drugs are listed as controlled substances) and the registration of medical

practitioners allowed to prescribe the listed drugs. From the clear reading of

Gonzales, supra, the AG does not have congressional authority to define

practices as outside “legitimate Medical practice.”

Even if this Court presumes that Congress gave the AG authority to

define what is a legitimate medical purpose, he has failed to promulgate

those definitions via the APA. For this additional reason, 21 CFR §

1306.04(a) is invalid and cannot be relied upon in prosecuting this case.

c The Attorney General's regulation does nothing more than “parrot”

selectedlanguage from the Controlled Substances Act. This

“regulation” adds no interpretive analysis to the statute and

deserves no deference whatsoever in the wake of the death of Chevron

and the rise of Loper.

The entirety of the Government's prosecution is premised on the

deference given to 21 CFR § 1306.04(a). If the alleged conduct is not in

21

conformance with what the Government says is a legitimate medical purpose,

then, according to the Government, it is unlawful and subject to criminal

prosecution. This, in effect, is making the “except as authorized” exemption

to unlawful conduct in § 841(a) conditional, based entirely on a regulation.

21 C.E.R. § 1306.04 is not only given immense deference by the courts, but

it is the essential foundation for all these prosecutions of medical providers.

And the Government explicitly relies on the regulation when alleging that

the defendants’ conduct was “not legal.”

At court, on the Defendant’s Motion to Dismiss for Lack of Subject

Matter Jurisdiction, Doc. 333, PagelID 5625, the Government argued

Chevron deference applied and that the AG was within his powers to make

the regulations.

The U.S. Supreme Court overturned Chevron and the federal

judiciary's forty-year-old practice of deferring to agencies’ reasonable

interpretations of ambiguous federal laws. Loper Bright Enterprises v.

Raimondo, 603 U.S. __ (2024). The Court held that the judiciary has the

sole prerogative to “say what the law is.” oper, slip op. at 7 (quoting

Marbury v. Madison, 1 Cranch 137, 177 (1808).

22

While not providing any bright-line test for the post-Loper review of

agency rulemaking, recent Supreme Court cases establish a roadmap for

reviewing courts when faced with this challenge.

Recently, The Court considered whether the EPA had authority to

regulate certain pollutants from existing sources under the Clean Air Act, 42

U.S.C. § 7411. West Virginia v Environmental Protection Agency, 142 S.Ct.

2587 (2022). The main holding of West Virginia v EPA is this:

Where the statute at issue is one that confers authority

upon an administrative agency, that inquiry must be

“shaped, at least in some measure, by the nature of the

question presented"—whether Congress in fact meant to

confer the power the agency has asserted.

Td. at 2607-08. “Agencies have only those powers given to them by Congress,

and ‘enabling legislation’ is generally not an ‘open book to which the agency

[may] add pages and change the plot line.” Jd. at 2609. See also, Biden v

Nebraska, 143 S.Ct. 2355 (2023) (holding that the HEROES Act did not allow

the Secretary to rewrite that statute to the extent of canceling $430 billion of

student loan principal); and Alabama Association of Realtors v. AHS, 141

S.Ct. 2485 (2021) (holding that without clear authorization from Congress, it

would not assume that Congress intended to intrude into an area that was

within the domain of state law (e.g., landlord-tenant law) or that was of such

economic importance);

The entirety of the Government's purported authority to criminally

prosecute medical practitioners, even though they were registered and

23

therefore “authorized” under § 841(a) is founded on the AG’s regulation, 21

C.F.R. § 1306.04, and the use of the term “legitimate medical purpose.” As

the Chevron/Auer deference has been overturned, then the entire basis for

deferring to the AG's interpretation of the CSA, his authority to condition the

“as authorized” exception in § 841(a), and his use of the criminal process to

further interpret what “legitimate medical purpose” means outside the

process of the APA, is likewise as misplaced as any of the above-cited cases.

Without Chevron/Auer deference, the Government is without any authority

to interpret the statutory meaning for 21 U.S.C.§841(a).

X. CONCLUSION

For the foregoing reasons, Mr. Young respéctfully requests that this

Court issue a writ of certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit.

DATED this 23rd Day of January, 2026.1.23

Respectfully Submitted,

/s/ Claiborne H. rereusla C i?

we Ferguson McNeil Law Firm, P.A.

etenencennnvnot REPRESENT er

Claiborne H. Ferguson

Appointed CJA Counsel

294 Washington Avenue

Memphis, Tennessee 38103

Tel.: (901) 529-6400

Fax: (901) 202-2053

Email: Claiborne@midsouthcriminaldefense.com

24

Index of Appendices

A. Opinion of the Sixth Circuit Court of Appeals

B. Trial Court Ruling on the Motion to Dismiss

C. Copy of Order Appointing CJA Counsel

25

No.

IN THE

SUPREME COURT OF THE UNITED STATES

Montai Riley,

Petitioner,

vs.

United States of America,

Respondent.

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the petition for a

writ of certiorari contains 6000 words, excluding the parts of the petition that

are exempt by Supreme Court Rule 33.1(d), is in Century font and uses 12-

point font.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on January 23, 2026.

/s/ Claiborne H. Ferguson

Claiborne H. Ferguson

26