The Justice Department is asking a federal court to dismiss a lawsuit from a group of doctors who are challenging their exclusion from marijuana rescheduling hearings, with the government arguing that it would be against the “public interest” to “derail” the process by litigating witness selection.
Doctors for Drug Policy Reform (D4DPR) recently challenged the Drug Enforcement Administration’s (DEA) rejection of their request to testify, making the case that the exclusion would cause irreparable harm to its membership as the agency proceeded with a proposal to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
On Friday, the Justice Department submitted a brief opposing the organization’s motion in the U.S. District Court for the District of Columbia Circuit. It said D4DPR identified “no error” from DEA in its initial selection of 25 witnesses to join the administrative hearings on rescheduling out of the 163 individuals and entities that requested the opportunity.
If all 163 prospective requesters were granted that request, it “could easily become an unwieldy hearing lasting months—if not years” before the proposed rule is potentially finalized,” it said.
“Nor do petitioners identify any injury that could not be cured on judicial review of whatever final rule DEA adopts,” it said. “And the public interest supports a decision without undue delay about how marijuana should be regulated” under the CSA.
“The public interest supports a decision on rescheduling marijuana without undue delay.”
D4DPR also filed a motion with the DEA administrative law judge (ALJ) overseeing the proceedings, requesting a stay of the hearings that are set to begin January 21. It asked for postponement at least until the federal court reached a determination on its legal challenge.
“It is not in the public interest to derail this proceeding while individuals and entities litigate the format of their participation,” DOJ said in its latest filing. “To the contrary, the ‘public’s interest [is] in certainty and prompt decision,’…not in permitting litigants to halt this proceeding indefinitely.”
“Petitioners seek extraordinary relief: they ask this Court to enjoin the formal rescheduling hearing because they are disappointed that DEA selected other participants to participate in it,” it said.
Also, in another section of the brief, the department argued that DEA reasonably declined to include D4DPR as an interested party in the hearings because part of the testimony they planned to introduce concerned its membership’s position that cannabis should be moved to Schedule IV or V, rather than III. DOJ said that issue would not speak to the material question at hand, which is “whether marijuana has a currently accepted medical use.”
Further, part of DEA’s responsibility in making drug scheduling decisions is to determine whether such reforms would be consistent with international treaty agreements to which the U.S. is a party, it continued.
The DOJ Office of Legal Counsel (OLC) concluded that a Schedule III redesignation, with regulatory safeguards, would fall in line with the treaties. However, the new court brief says that “whether such a rescheduling [to Schedule IV or V] would comport with the United States’ obligations under the Single Convention is an open question.”
Separately, DEA ALJ John Mulrooney on Wednesday denied a cannabis research company’s request to allow it to add a young medical marijuana patient and advocate as a witness.
The judge also said this week that DEA made a critical “blunder” in its effort to issue subpoenas to force Food and Drug Administration (FDA) officials to testify in upcoming marijuana rescheduling hearings—but he allowed the agency to fix the error and ultimately granted the request.
Separately, one of the nation’s leading marijuana industry associations is asking the judge to clarify whether it will be afforded the opportunity to cross-examine DEA during the upcoming hearings on the cannabis rescheduling proposal.
Like D4DPR, another organization that was also denied participation, Veterans Action Council (VAC), similarly filed a petition with the same court last month to request a review of the agency’s decision to exclude it from the proceedings.
Mulrooney also recently addressed motions seeking to remove DEA from the proceedings altogether, in part due to the alleged unlawful communications with the president of one designated participant, the prohibitionist group Smart Approaches to Marijuana (SAM), signaling that he considered it statutorily complex and potentially impractical to force the agency to turn over its records on the reported ex parte communications.
“If people were going to be bad people, would they write it down in a memo so that everyone could read it?” he asked attorney Matt Zorn, who filed a Freedom of Information Act request and subsequent lawsuit to obtain any records of the talks and represents D4DPR in the latest motion. “What are you chasing? Are you chasing a note that somebody wrote, ‘I had an improper conversation with somebody else, I wanted to put it the memo in case someone wants to indict me?’”
The rescheduling proceedings have generated significant public interest. While moving marijuana to Schedule III wouldn’t federally legalize it, the reform would free up licensed cannabis businesses to take federal tax deductions and remove certain research barriers.
But while DEA is designated as the “proponent” of the proposed rule, there’s been skepticism about where the agency’s leadership actually stands on the issue and whether it may insert bias into the hearing process.
In a prehearing statement submitted last month, DEA previewed the testimony its two agency witnesses plan to provide at the upcoming hearing—without clarifying where it stands on the rescheduling proposal.
While the initial preliminary hearing happened last week, the merit-based proceedings were delayed until at least early 2025 after Mulrooney notified DEA that it provided insufficient information about the 25 selected witnesses that Milgram submitted.
Meanwhile, Mulrooney also denied a motion to remove the agency from hearings on the cannabis proceedings. However, he sharply criticized responses from DEA and a prohibitionist group over an allegation that they unlawfully communicated during the cannabis rulemaking process.
An attorney subsequently filed a lawsuit against DEA for allegedly violating federal public records laws, requesting that a court compel the agency to disclose communications with SAM.
Separately, the judge denied a request from a cannabis and psychedelics researcher to postpone the upcoming rescheduling hearing over the agency’s alleged “improper blocking” of witnesses, while arguing that the process should be halted at least until President-elect Donald Trump’s administration comes into power so it can review the rulemaking.
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For what it’s worth, Vice President Kamala Harris said recently that part of the reason for the delay in the administration’s marijuana rescheduling effort is federal bureaucracy that “slows things down,” including at DEA.
In March, Harris also expressed some frustration with the bureaucratic process of rescheduling marijuana, prior to DOJ’s formal recommendation, calling on DEA to expediently finish the job.
While the Biden–Harris administration facilitated the review that led to the DOJ rescheduling proposal, Trump has also voiced support for the reform.
Trump’s recently announced pick for DEA administrator, Hillsborough County, Florida Sheriff Chad Chronister, backed a cannabis decriminalization policy enacted by local officials.
In Congress, numerous lawmakers have shared their own perspectives on the proposed reform with DEA and DOJ since the Schedule III announcement was made.
In August, for example, Sen. Chuck Grassley (R-IA) raised concerns about the Biden administration’s justification for recommending marijuana rescheduling, demanding answers to questions from federal agencies about how they arrived at that decision in what he described as a rushed and unconventional administrative process.
A week earlier, top Democratic senators—including Senate Majority Leader Chuck Schumer (D-NY)—sent a separate letter to DOJ’s Garland and DEA’s Milgram urging the agencies to ”promptly finalize” the rule to reschedule marijuana.
While rescheduling would remove certain research barriers and free up state-licensed cannabis business to take federal tax deductions under the Internal Revenue Service (IRS) code known as 280E, it would not federally legalize marijuana, as the Congressional Research Service (CRS) has made known in multiple recent reports.
Meanwhile, two additional congressional lawmakers have joined the ranks of GOP members who are challenging what they say is the “unusual” process that led the Biden administration to propose rescheduling marijuana, expressing concern about how the review was carried out and demanding answers.
Rep. Doug LaMalfa (R-CA) condemned the Biden administration’s push to reclassify marijuana, as well as legislative efforts to enact bipartisan cannabis banking reform, because he says the policy changes would “prop up this immoral industry” and give a “green light to the evil that comes from drug use.”
Sen. Bill Cassidy (R-LA) also blasted the Biden administration over what he described as repeated refusals from federal agencies to brief Congress on its plans and justification for rescheduling marijuana, which he argues fuels speculation that the proposed policy change is politically motivated.
Similarly, 25 GOP congressional lawmakers sent a public comment letter in July opposing the administration’s planned rescheduling of marijuana, specifically alleging the government’s recommendation was based on politics rather than science.
Read the Justice Department’s brief in the marijuana rescheduling lawsuit from D4DPR below:
DOJ Brief Marijuana D4DPR by KyleJaeger on Scribd
Photo courtesy of Chris Wallis // Side Pocket Images.
The Justice Department is asking a federal court to dismiss a lawsuit from a group of doctors who are challenging their exclusion from marijuana rescheduling hearings, with the government arguing that it would be against the “public interest” to “derail” the process by litigating witness selection. Doctors for Drug Policy Reform (D4DPR) recently challenged the Read More
