DEA Judge Notifies Agency Head About Marijuana Rescheduling Hearing Cancelation Following Appeal Order

A Drug Enforcement Administration (DEA) judge has advised the head of the agency that the ball is back in her court with respect to the Biden administration’s marijuana rescheduling proposal, providing notice of a request for leave to file appeal that he granted this week in the hearing proceedings.

In a letter sent to DEA Administrator Anne Milgram on Wednesday, Administrative Law Judge (ALJ) John Mulrooney explained how several pro-rescheduling parties had requested a leave to file an interlocutory appeal amid allegations that certain agency officials conspired with anti-rescheduling witnesses who were selected for the hearing.

Mulrooney ultimately granted the appeal motion, canceling scheduled hearings on the proposed cannabis rescheduling rule that had been set to begin on January 21.

As the judge explained in the letter to Milgram, the appeal came after he denied a motion that sought DEA’s removal from the rescheduling proceedings altogether, arguing that it is improperly designated as the chief “proponent” of the proposed rule given the allegations of ex parte communications with anti-rescheduling witnesses that “resulted in an irrevocable taint” to the process.

“Contrary to the request of the Interlocutory Appellants, no hearing has been conducted on these allegations, no evidence or testimony was received on the underlying factual allegations, and no facts have been found,” he said.

Mulrooney also said that, because the designated participants represent just a “subset” of those who were invited to testify in the rescheduling hearings, “it is my respectful recommendation that, in addition to the Government and the Interlocutory Appellants, all Designated Participants be included in any briefing schedule you issue and that all DPs on both sides of the [notice of proposed rulemaking] be afforded the opportunity to brief the issues” in the appeal.

In a separate order issued on Thursday, the ALJ also weighed in on the standing of prospective appellants, detailing how miscommunications in filings rendered one of the DPs, Ellen Brown, ineligible to participate, with “no viable plan” to restore her standing.

The notice also mentions that, since granting the appeal, participants are now “awaiting a ruling by the Agency head.”

While the ALJ’s order granting the appeal means the hearings are temporarily canceled—with lingering uncertainty over the fate of the rescheduling proposal as President-elect Donald Trump prepares to take office with a different DEA administrator helming the ship—he suggested it could potentially prevent an even more extensive delay in rulemaking.

“Even factoring in the reality that sometimes litigants and their representatives should be mindful of what they wish for, to the extent my analysis is found to be in error on review, I am willing to certify that the allowance of this interlocutory appeal could potentially avoid exceptional delay, expense or prejudice to the [designate participants, or DPs] and the Government by injecting appellate certainty into the equation at this stage of proceedings. Were my analysis to be reviewed on appeal and determined to constitute prejudicial error, a remand would clearly result in significant delay and expense to the Designated Participants and the process.”

The judge ordered either the government or the movants to provide the court with an update on the status of the interlocutory appeal in 90 days. To the extent the issues are not resolved, they must update the court every subsequent 90 days. The window to file an appeal is 15 days from the issuance of the order.

Meanwhile, the Justice Department told a federal court this week that it should pause a lawsuit challenging DEA’s marijuana rescheduling process after Mulrooney canceled the upcoming administrative hearings.

In the background, the judge on Monday also condemned DEA over its “unprecedented and astonishing” defiance of a key directive related to evidence it is seeking to use in the marijuana rescheduling proposal.

At issue is DEA’s insistence on digitally submitting tens of thousands of public comments it received in response to the proposed rule to move cannabis to Schedule III.

“Even among the numerous extraordinary and puzzling actions taken thus far by the Government during the course of this litigation, this disobedience of an unequivocal directive from the tribunal is unprecedented and astonishing,” he said.

Mulrooney hasn’t been shy about calling out DEA over various procedural missteps throughout this rescheduling process.

For example, last month he criticized the agency for making a critical “blunder” in its effort to issue subpoenas to force Food and Drug Administration (FDA) officials to testify in hearings—but he allowed the agency to fix the error and ultimately granted the request.

Relatedly, a federal judge also recently dismissed a lawsuit seeking to compel DEA to turn over its communications with the anti-cannabis organization.

Meanwhile, Mulrooney 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.

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.

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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 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 the Trump 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 the DEA judge’s letter and order on the marijuana rescheduling appeal below: 

DEA ALJ Letter Order Appeal by KyleJaeger on Scribd

Where Presidential Candidate Donald Trump Stands On Marijuana

Photo courtesy of Brian Shamblen.

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