Veterans Group Asks Federal Appeals Court To Let It Participate In Marijuana Rescheduling Hearing Next Week

A veterans organization has filed a challenge with the U.S. Court of Appeals for the D.C. Circuit in an effort to force the Drug Enforcement Administration (DEA) to include the group in upcoming hearings on the Biden administration’s proposal to move marijuana to Schedule III of the Controlled Substances Act (CSA).

The group Veterans Action Council (VAC), which focuses on legal cannabis access for military veterans, said in a letter to the court this week that it submitted a request with DEA in an effort to participate in the hearings but “never received any response” from the agency.

The DEA administrative law judge (ALJ) on the matter, John Mulroony II, later rejected the group’s request for him to add it as a participant in the hearings. He “made clear to us that we were formally denied access to this hearing by DEA,” the group said in the new letter.

At the time, VAC said its exclusion from the marijuana proceedings is a “travesty of justice,” arguing that the denial would exclude key voices that would be affected by rescheduling.

The group asserts in the new appeal letter that its members and other veterans would be harmed by moving marijuana to Schedule III.

“Only a move to schedule V,” it says, “would alleviate our injury.”

“We appreciate the hard work of the DEA, [Food and Drug Administration] and [Health and Human Services Administration] on this rescheduling process,” says the letter to appeals court, dated November 25, “however, as we articulated in our request to DEA, we argue that schedule V would be the necessary conclusion of a fair hearing on this proposed rule.”

The group says in the letter that its members have “immense experience in this field,” noting that three of the organizations that were selected to participate in the rescheduling hearings “are run by or were previously run by colleagues and / or council members of our Veterans Action Council.”

Despite others slated to appear at the hearings, VAC “contends that there will be no participant making this specific case for schedule V as a unique solution providing relief to injury from the proposed rulemaking and given the available evidence.”

“No participant makes the case that we intend to make,” the filing says, adding that “there wasn’t any argument proposed by any participants in favor of a schedule greater than III.”

Issues such as the lack of other hearing participants arguing for a lower scheduling standard “certainly raise a serious doubt on the process DEA employed while creating this participants list from the many like VAC that applied,” it continues, “and also gives rise to suspicion that the DEA may have cherry picked from those requesting standing hoping for just such an outcome, a list of participants with standing almost exclusively speaking the language of drug prohibition.”

Michael Krawitz, a VAC councilmember, said in a statement that veterans “deserve a fair process that takes into account their lived experiences and medical needs.”

“The DEA’s exclusion of VAC silences a critical perspective advocating for Schedule V, which would provide Veterans with the necessary access to cannabis as a medical treatment through the [Veterans Affairs] system,” Krawitz said.

The appeal from VAC isn’t the only legal challenge filed in the run-up to the cannabis rescheduling hearings, which are set to begin on Monday.

Also this week, an attorney filed a lawsuit against DEA for allegedly violating federal public records laws, requesting that a court compel the agency to disclose communications with the prohibitionist group Smart Approaches to Marijuana (SAM) during the ongoing marijuana rescheduling process.

Just days after a DEA administrative law judge (ALJ) denied a motion to remove DEA itself from hearings on the cannabis proceedings—while at the same time recognizing the seriousness of the alleged ex parte contact with SAM—attorney Matt Zorn sued to obtain the records.

The alleged ex parte communications were central to a separate motion filed with DEA ALJ John Mulrooney that sought DEA’s remove from the proceedings. That motion was rejected on Wednesday, but the judge dedicated a significant portion of his order to criticizing DEA and SAM for failing to adequately response to the main claims of impropriety. He did not, however, compel them to provide any records.

Meanwhile, in a prehearing statement submitted to Mulrooney on Tuesday, DEA previewed the testimony its own witnesses plan to provide at the upcoming hearing—without clarifying where it stands on the rescheduling proposal.

The agency also said that the U.S. Department of Health and Human Services (HHS)—which carried out a scientific review that informed the proposal to move cannabis to Schedule III—“rejected” its request to provide witnesses.

While the initial preliminary hearing is scheduled for December 2, 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 Ann Milgram submitted.

Separately, the judge last week 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.

Vice President Kamala Harris said ahead of this month’s election 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 VAC’s full appeal letter to the D.C. Circuit Court of Appeals below:

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