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Tuesday, May 31, 2022

US Supreme Court to Conference Medical Marijuana Preemption Case

The US Supreme Court (SCOTUS) is scheduled to conference the Minnesota Supreme Court’s decision prohibiting reimbursement of medical marijuana costs in a workers’ compensation claim. The Petitioner for a Writ of Certiorari conference is listed for Thursday, June 16, 2022.  Musta v. Mendota Heights Dental Center, et al., No. 21-998.

US Government

The US Government submitted a brief to SCOTUS by invitation. The US Government urged denial of the Writ. The US Government indicated that the issue is not ripe and may in fact be decided by the other branches of the Federal government. “The Legislative and Executive Branches of the federal government are best situated to consider any potential tailored measures to address specific instances of interaction between federal and state marijuana laws. To that end, Congress has recently amended the federal prohibition on marijuana, see p. 5, supra (noting 2018 change to CSA definition of marijuana), and continues to consider more expansive approaches; indeed, shortly after the Court issued its invitations in these cases, the House of Representatives passed legislation that would remove marijuana from the CSA’s list of controlled substances altogether.”

Preemption Issue

The question presented is: “Whether the Controlled Substances Act, 21 U.S.C. 801 et seq., preempts a state workers’ compensation order that compels an employer to reimburse an employee for the cost of marijuana used in response to pain arising from a work-related injury.”

The issue is whether employers and their insurance carriers could be compelled to reimburse costs for medical marijuana in light of the Controlled Substances Act (CSA or Act), Pub. L. No. 91-513, Tit. II, 84 Stat. 1242.

Supplemental Brief of Susan K. Mustafa

A supplemental brief in support of the Petitioner for a Writ of Certiorari was filed this week by Susan K Mustafa, the Petitioner. She asserts that there exists a 2-2 court split below on the issue presented, and it is of national importance.  

Musta argues that the US Supreme Court should review the issue because the government’s implied preemption theory is meritless. The petitioner asserts that the government is not a neutral party and does not want SCOTUS to review the matter for several reasons. A SCOTUS decision on the merits may result in further restrictions of the government’s Commerce Clause authority. The Executive Branch has been systematically refusing to prosecute these alleged federal crimes. 

The petitioner further argues that Minnesota’s workers’ compensation system does not facilitate access to marijuana. Injured workers may obtain it with or without workers’ compensation coverage. “The Court should not expand the scope of the Controlled Substance Act to regulate insurance coverage and employee reimbursement—topics on which it is silent.” “The workers’ compensation scheme poses no threat to federal law enforcement interests."

SCOTUS receives over 8,000 petitions for certiorari per year and only accepts one percent for review. Four of the nine justices must vote in the affirmative to accept a case for oral argument.

Recommended Citation: Gelman, Jon L., US Supreme Court to Conference Medical Marijuana Preemption Case, Workers' Compensation Blog, May 31, 2022),

To read more about marijuana and workers' compensation, click here.

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Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900  have represented injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation

Twitter: jongelman

LinkedIn: JonGelman

LinkedIn Group: Injured Workers Law & Advocacy Group

Author: "Workers' Compensation Law" Thomson-Reuters