DEA Should Be Removed From Marijuana Rescheduling Hearing After Illegally Conspiring With Prohibitionists, Legal Filing Says

A Drug Enforcement Administration (DEA) judge is being asked to remove the agency from its role in an upcoming hearing on the Biden administration’s marijuana rescheduling proposal, with a new legal filing citing alleged statutory violations that include “unlawful” communication with a prohibitionist group.

When the Department of Justice formally proposed moving cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA)—consistent with a recommendation from the U.S. Department of Health and Human Services (HHS)—one aspect stood out: The DEA administrator didn’t sign the notice of proposed rulemaking, breaking with historical precedent on federal scheduling proceedings. Instead, it was signed by Attorney General Merrick Garland.

That was one of several factors that led to a motion being filed with DEA Administrative Law Judge (ALJ) John Mulrooney on Monday, seeking corrective action. It was submitted on behalf of Hemp for Victory and Village Farms International, which were both invited to participate in the rescheduling hearing that’s set to begin next month.

The issue isn’t just that DEA Administrator Anne Milgram declined to sign the proposed rule. Throughout that notice, the agency said it needed additional data on a variety of issues—namely cannabis-related health issues and law enforcement concerns—in order to make a complete assessment. The motion argues that the backwards approach to the rulemaking violates federal statute.

“By waiting until the publication of the [proposed rule]—and thus after DOJ had initiated proceedings under [the CSA]—to flag categories of supposedly ‘necessary data,’ DEA ensured that HHS would not get to respond to that data in its recommendation and evaluation,” the motion says. “Even worse, DEA effectively turned the [proposed rule] into a blueprint for the Prohibitionists it apparently was communicating with behind the scenes.”

Another issue that’s arisen concerns DEA’s selection of witnesses to participate in the December hearing, which was scheduled following a public comment period that saw tens of thousands of submissions—a majority of which favored rescheduling or otherwise pushed for bolder reform such as removing marijuana from the CSA altogether.

Mulrooney, the DEA ALJ appointed to handle the case, recently advised that the agency provided insufficient information about the 25 witnesses who were selected. He ordered the designated participants to fill in the blanks—for example, by making clear where they stand on the question of rescheduling. In doing so, he also pushed back the timeline for the hearing. A preliminary meeting is still set for next month, but it won’t be until early 2025 at least until they get to the merits of the case.

In the new motion filed with Mulrooney’s office, attorneys for the petitioners said DEA’s “lack of transparency” in creating the witness list is “alarming, undemocratic, and betrays notions of good governance.” In some cases, seemingly qualified candidates who requested to participate in the hearing did not receive formal denials. And the list submitted to the ALJ didn’t itemize the requesters or provide information about why they were approved or denied.

“Without knowing who DEA excluded and why, there is no way to assess whether and to what extent the Agency’s decisions are arbitrary and capricious, the subject of bias, or otherwise unlawful,” the filing says. “If, for example, DEA included parties with expertise on a particular topic but only if they opposed the Proposed Rule while also excluding parties with even more expertise on that same topic if they supported the Proposed Rule, then there would be a powerful case to be made that the Agency’s decisions were arbitrary and capricious.”

The filing also argues that by even selecting witnesses in the first place, DEA “usurped” the ALJ’s role as the presiding officer of the hearing.

Among the 25 witnesses that DEA chose to join the hearing was Smart Approaches to Marijuana (SAM), the nation’s leading prohibitionist group. The filing includes 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.”

That and other public disclosures added fuel to this latest motion.

“In light of this evidence of improper ex parte communications between DEA and private parties, this Tribunal must take all steps necessary to ensure that all such communications are discovered and included in the administrative record,” it says. In the relief section of the filing, it also calls on the DEA judge to mandate that records of such communication be preserved.

“Unless and until that happens, there will effectively be two records of these proceedings: one that is public and incomplete and another that is secret, complete, and available only to those in the know. Or as Dr. Sabet put it, those with ‘friends in low places,’” it says.

The motion also cites comments given by SAM Executive Vice President Luke Niforatos, who said during a webinar in June that DEA’s approach to the rescheduling notice offered prohibitionists a “roadmap for how to rebut their own Proposed Rule.”

Niforatos said in a statement to Marijuana Moment on Tuesday that the filing is “whacky” and amounts to “pure legal theater and no substance.”

“While it is an entertaining read, we are certain the filing will be rejected,” he said. “If anything, they have perhaps strengthened the argument for our participation.”

In any case, the latest motion implores the DEA tribunal to “use every tool at its disposal to uncover each instance of improper contact between DEA and prohibitionists and determine whether those contacts influenced the Designated Participants list created by the Administrator.”

“Requiring disclosure of the ex parte contacts is what the law demands, and because sunlight is the best disinfectant, it will restore confidence in these proceedings,” it says.

Ultimately, one of the critical requests attorneys for the cannabis companies behind the motion are making is for DEA to lose its status as the “proponent” of the proposed rule. Because the agency allegedly did not follow statutory rules and improperly selected witnesses, including SAM and other anti-drug groups tied to it, “DEA is the opponent” and “cannot bear the burden of proof in these proceedings.”

It’s unclear whether DEA ALJ Mulrooney has authority to remove the agency itself as the proponent in the hearing. But the motion advises that the judge should instead have DOJ—or alternatively Hemp for Victory—serve as the proponent.

Shane Pennington, a partner at Porter Wright Morris & Arthur, LLP who authored the new brief said that “it is our belief that the DEA cannot lawfully act as the proponent of the Proposed Rule and that its actions throughout the administrative process demonstrate that it opposes the proposed transfer of marijuana to Schedule III and is therefore compromised.”

“Treating the DEA as the proponent of the Proposed Rule would violate [the Administrative Procedures Act] and DEA regulations and render these proceedings a sham,” he said. “Lawyers from the Department of Justice, not the Drug Enforcement Administration, must therefore defend this rule.”

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 motion submitted to the DEA judge on the marijuana rescheduling case below: 

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