DEA Faces Lawsuit Seeking To Reveal Emails Between Agency And Anti-Marijuana Group About Rescheduling Process

An attorney has filed a lawsuit against the Drug Enforcement Administration (DEA) for allegedly violating federal public records laws, requesting that a court compel the agency to disclose communications with a prohibitionist group during the ongoing marijuana rescheduling process.

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

He said he filed a Freedom of Information Act (FOIA) request with DEA on October 29, seeking email correspondences, on an expedited basis, between the agency and SAM related to the rescheduling effort. DEA failed to provide a response within 20 days (excluding weekends), as required under statute.

Therefore, he’s now asking the U.S. District Court for the District of Columbia to step in and order DEA to “search and immediately produce responsive records within 20 days.”

The lawsuit was filed on Thursday, just days before the initial cannabis rescheduling hearing is set to begin on Monday.

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.

“There is no question that the allegations raised by the [ex parte motion (EPM)] are distasteful and arguably unhelpful to the public’s perception that the proceedings will be transparent,” the order said. “That said, this tribunal is without authority to grant the supplementation and removal relief sought (the only relief sought) by the Movants.”

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.

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.

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.

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Photo courtesy of Mike Latimer.