The Drug Enforcement Administration (DEA) is asking an agency judge to reject a request to have it removed from upcoming marijuana rescheduling hearings over allegations it opposes the reform it is supposed to be defending during the proceedings—while still declining to clarify where it actually stands on the proposal.
About a week after DEA Administrative Law Judge (ALJ) John Mulrooney ordered the agency to respond to a motion filed by pro-rescheduling witnesses, it submitted its reply on Monday, disputing the various claims and asking for a dismissal.
Village Farms International, Hemp for Victory, the Connecticut Office of the Cannabis Ombudsman, Ellen Brown and My Doc App had renewed their request to have the judge remove DEA as the proponent of the proposed rule to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA) on several grounds.
Part of the pro-rescheduling participants’ motion addressed a new declaration submitted to the ALJ by a DEA official this month, wherein the agency pharmacologist seemed to question the basis of the reclassification proposal. It also alleged additional unlawful communication with an anti-rescheduling witness and questioned the agency’s rationale for selecting certain witnesses while denying others, including the state of Colorado.
The motion also alleged that there’s “additional damning evidence of ex parte and undisclosed communications has emerged,” with DEA failing to disclose nearly 100 requests to participate in the upcoming hearings, as well as “communication and coordination with at least one anti-rescheduling [designated participant], the Tennessee Bureau of Investigation.”
DEA pushed back against the claims, contending that information cited in the motion was available to the witnesses despite the suggestion that the evidence was new and reiterating that, as the ALJ previously asserted, there’s no basis to remove the agency from the proceedings.
“Movants have failed to demonstrate good cause for filing their request out of time because they have failed to demonstrate that the newly discovered evidence was unavailable to them at the time they filed their original ex parte motion despite their diligent efforts to discover it,” it said. “Thus, Movants’ request for reconsideration should be denied.”
The DEA judge rejected the cannabis groups’ earlier request to remove the agency as the proponent of the rescheduling rule, but he did seem to put weight into separate allegations that it engaged in unlawful communication with another DP, the prohibitionist group Smart Approaches to Marijuana (SAM).
Relatedly, a federal judge also recently dismissed a lawsuit seeking to compel DEA to turn over its communications with the anti-cannabis organization.
“This Tribunal has made clear that it lacks authority to remove DEA from its role as proponent of the rule,” DEA said in the new filing. “Nevertheless, Movants fail to prove that DEA suffers an actual conflict of interest that would prevent it from fulfilling its role as proponent of the rule in this case.”
“Ultimately, Movants appear to be concerned with the validity of these proceedings under the [Administrative Procedures Act, or APA]. As before, to the extent that the Movants are raising an APA challenge to the way these proceedings are being conducted, or to final decisions made by the Agency, they have once again sought relief from the wrong forum.
It’s not so much what the government did say in response to the motion that has advocates are concerned with. Rather, it’s what DEA didn’t say: That is, whether or not it supports the rescheduling proposal that it’s supposed to be defending as the proponent of the proposed rule.
Despite part of reform supporters’ motion requesting that the judge mandate DEA to take an explicit position on the Schedule III proposal, the agency once again declined to provide that clarity, adding to skepticism that it actually backs the rule.
It’s unclear when the ALJ will issue an order on the underlying motion, but time is running short with the first merit-based hearings scheduled to begin next week.
Meanwhile, the DEA ALJ recently denied a cannabis research company’s request to allow it to add a young medical marijuana patient and advocate as a witness in the upcoming rescheduling hearing.
Mulrooney separately said last month that DEA made a critical “blunder” in its effort to issue subpoenas to force Food and Drug Administration (FDA) officials to testify in rescheduling process—but he allowed the agency to fix the error and ultimately granted the request.
Also, one of the nation’s leading marijuana industry associations asked the judge to clarify whether it will be afforded the opportunity to cross-examine DEA during the upcoming hearings on the cannabis rescheduling proposal.
Further, a coalition of health professionals that advocates for cannabis reform recently asked that the DEA judge halt future marijuana rescheduling hearings until a federal court is able to address a series of allegations they’re raising about the agency’s witness selection process.
That came on the same day the Mulrooney issued a ruling that laid out the timeline for merit-based hearings on the rescheduling proposal.
Doctors for Drug Policy Reform (D4DPR) requested that the DEA judge stay the hearings—which are currently set to commence on January 21—pending a review from the U.S. District Court for the District of Columbia Circuit. A separate 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.
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.
—
Marijuana Moment is tracking hundreds of cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
—
In a prehearing statement submitted in November, 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 DEA Administrator Anne Milgram submitted.
Separately, the DEA judge has also 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.
Mulrooney also rejected a veterans group’s petition to participate in the rescheduling hearing, which the organization called a “travesty of justice” that excludes key voices that would be affected by the potential policy change. That group has asked the U.S. Court of Appeals for the D.C. Circuit to intervene on its behalf.
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.
Read DEA’s reply to the motion seeking its removal from the marijuana rescheduling hearings below:
DEA Response Marijuana Resc… by KyleJaeger
The Drug Enforcement Administration (DEA) is asking an agency judge to reject a request to have it removed from upcoming marijuana rescheduling hearings over allegations it opposes the reform it is supposed to be defending during the proceedings—while still declining to clarify where it actually stands on the proposal. About a week after DEA Administrative Read More
