DEA Judge Gives Agency One Week To Address Allegations Of Illegal Talks With Marijuana Opponents Amid Rescheduling Process

A Drug Enforcement Administration (DEA) judge is giving the agency less than a week to respond to recent allegations that it illegally communicated with the prohibitionist group Smart Approaches to Marijuana (SAM) during the Biden administration’s rescheduling review process.

Just two days after a motion was filed with DEA Administrative Law Judge (ALJ) John Mulrooney, challenging the agency’s role as a “proponent” of the proposed rescheduling rule, the official responded with a filing that expressed mixed opinions about the underlying arguments.

The brief order emphasized that the case was unprecedented, with attorneys for two cannabis organizations asking the DEA tribunal to “unilaterally remove the DEA, its counsels, and its Administrator” from the rescheduling process ahead of an initial hearing on December 2.

That request from Hemp for Victory and Village Farms was largely based on an allegation that DEA officials “engaged in ex parte communications regarding the merits of the proposed rescheduling” in violation of federal Administrative Procedure Act (APA) statute. The petitioners have asked that DEA be replaced by the Justice Department or Hemp for Victory as the “proponent” of the rule.

In a historic first, it was Attorney General Merrick Garland—and not DEA Administrator Anne Milgram—who signed the proposed rule to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA). The motion said that, as well as DEA’s apparent indecision on the proposed rule, warranted a change in the hearing structure.

The judge, in turn, said that the prospect of removing an agency head from rulemaking that it is responsible for overseeing would likely, “and correctly,” be deemed beyond the ALJ office’s jurisdiction.

“That said, this tribunal does retain sufficient authority and independence to tender recommendations to the Administrator, no matter what discomfiture those recommendations may inflict upon the Agency or its Leadership,” it said.

“While deciding nothing at this juncture, that aspect of the Motion’s request that one of the Movants supplant the Agency as the proponent of [proposed rule] may arguably be vulnerable to a characterization of being unserious. The Motion propounds no hint of authority for such an unprecedented action, what control could or should be exercised over that Movant who replaces the Government, or (probably more importantly) what would happen next if this unique request was actually granted.”

Mulrooney added that, even if the DEA “may not (yet?) be convinced about the correctness of the proposed rescheduling action pending a review of the recommended decision,” the “efficacy” of swapping the DEA head for a proponent who is “absolutely firmly entrenched in the one side of the issue” is “not altogether clear from the Motion.”

“But again, nothing is decided here,” he said.

Regardless of the potential efficacy of the procedural request, the DEA judge did say that, “on the other side of the coin, the allegations regarding alleged improper ex parte communications are serious, and the concomitant obligations to memorialize and report such communications set forth in the APA and the regulations are by no means couched in permissive language.”

That’s a reference to the motion’s allegations that DEA may have violated certain laws while conducting the rescheduling review, including “unlawful” communication with the prohibitionist organization SAM.

The filing included screenshots of social media posts where the group’s president, Kevin Sabet, indicated he had private conversations with DEA officials about the rescheduling effort as SAM rallied opposition to the reform and urged the agency to keep marijuana in Schedule I.

One week prior to DOJ’s publication of the proposed rule, Sabet posted on X that he could confirm Milgram wouldn’t sign the notice, citing “two confidential sources inside DEA and another outside DEA with intimate knowledge.”

The DEA judge said that the government is invited, but not obligated, to respond to the motion’s allegations by November 25.

Shane Pennington, one of the attorneys who filed the underlying motion regarding DEA’s role in the hearing, told Marijuana Moment that while he disagreed with certain aspects of the judge’s new order, he was encouraged that it appears Mulrooney is taking the matter seriously—evidenced in part by that fact that the motion wasn’t summarily dismissed.

In the meantime, the initial rescheduling hearing is still moving forward, with an initial preliminary meeting set for December 2. Mulrooney on Tuesday officially ruled on which of the agency’s 25 selected witnesses for the hearing will be able to participate, while laying out the procedure for the administrative process—including how pro- and anti-reform speakers will be able to cross-examine one another.

In a footnote of that order, the judge said he wasn’t convinced that the underlying argument about DEA’s role in the hearing merited consideration with respect to standing to participate. But he said the substance of the motion would still be considered separate from the witness selection order.

“The balance of this requestor’s arguments in favor of standing are wholly unpersuasive. To argue, at this procedural juncture, that the DEA is an improper advocate or sponsor of its own [proposed rule] adds nothing to the standing equation and (at least on the present record) presents little more than an ad hominem distraction from the important advocacy and adjudicative work to be accomplished in these proceedings,” Mulrooney’s order said.

But while the judge asserted that DEA issued the rule and is thus properly appointed as its sponsor, the agency did not in fact sign off on the rescheduling notice and raised a series of questions that signaled to many that it wasn’t on board.

Meanwhile, a marijuana and psychedelics researcher is asking the DEA ALJ to postpone its rescheduling hearing due to 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.

About a week after Panacea Plant Sciences founder and CEO David Heldreth filed a lawsuit in federal court, requesting an order halting the cannabis rescheduling proceedings, he submitted a motion to the DEA judge on Monday seeking a stay of the upcoming December hearing.

Mulrooney separately rejected a veterans group’s petition to participate in the upcoming rescheduling hearing, which the organization called a “travesty of justice” that excludes key voices that would be affected by the potential policy change.

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.

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 DEA judge’s order on the request to remove DEA from the marijuana rescheduling hearing below: 

DEA Judge Rejects Veterans Group’s Petition To Participate In Marijuana Rescheduling Hearing

Photo courtesy of Chris Wallis // Side Pocket Images.