Doctors Supporting Marijuana Rescheduling File Lawsuit Calling For DEA Witness Selection Redo Over Alleged Unlawful Conspiracy With Reform Opponents

A non-profit organization of pro-marijuana reform doctors has filed a brief in a federal appeals court arguing that new evidence has surfaced demonstrating that the Drug Enforcement Administration (DEA) carried out an “arbitrary and capricious review” of witnesses for hearings on the ongoing cannabis rescheduling process that should now be redone.

The group is alleging that there’s “substantial evidence” of procedural violations committed by DEA leadership during the witness selection process—including previously unreported unlawful ex parte communications with certain parties, most of whom oppose the rescheduling proposal.

The suit from Doctors for Drug Policy Reform (D4DPR)—filed with the U.S. Court of Appeals for the District of Columbia Circuit on Monday—comes amid an indefinite delay of the DEA administrative hearings on the Biden administration-initiated proposal to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).

At issue in the legal challenge is the fact that then-DEA Administrator Anne Milgram selected just 25 of more than 160 applicants that sought to provide input on the rescheduling proposal.

According to attorneys represented by D4DPR, which was among the groups denied designated participant status for the hearings, there’s substantial evidence that DEA’s ex parte communications were “motivated by the impermissible goal of creating an evidentiary record that would allow it to reject the proposed rule to reschedule marijuana.”

“The Agency gave no reasons for selecting only 25 participants or why it selected particular applicants,” the lawsuit says. “The Agency’s failure to explain the reasons for its selections warrants vacatur and remand with instructions to redo the selections.”

It goes on to say that the “circumstances surrounding the Agency’s rejection of Petitioners’ application is but one weave in a tapestry of evidence indicating the Agency’s secret selection process was guided by the improper aim of creating an evidentiary record that will allow the Agency to reject the proposed rule.”

DEA is meant to serve as the proponent of the rescheduling rule, but the agency has faced repeated questions over its actual stance on the proposal. Part of that comes down to the fact that former Attorney General Merrick Garland, and not Milgram, signed the notice of proposed rulemaking—breaking with administrative precedent in drug rescheduling decisions.

D4DPR alleges that additional evidence has surfaced demonstrating that DEA’s witness selection process was biased, pointing to “cure letters” the agency reportedly sent to only certain witnesses that skew anti-rescheduling.

DEA asked those witnesses to “supplement their requests to participate with additional information showing they are ‘interested persons’ with relevant evidence to present.” However the agency “did not send Petitioners or other pro-rescheduling entities similar ‘cure letters’ before rejecting their applications.”

“Moreover, comparing Petitioners’ detailed application with the perfunctory applications of entities who were selected confirms that the Agency treated Petitioners differently from other similarly situated applicants,” the lawsuit says.

“For these reasons, the Court should vacate the Agency’s selection of participants and rejection of Petitioners and remand with instructions to redo the participant selection process,” it says.

“Evidence of ex parte communications between the Agency and anti-rule applicants, emerging only recently, has heaped logs on the fire. Documents produced by the Agency in this case reveal that a Deputy Assistant Administrator within the Agency followed up in private correspondence with twelve applicants requesting ‘additional information’” about their standing as an aggrieved party and relevant evidence, the brief says.

“Of the twelve who received these self-styled ‘cure letters,’ nine were strongly against the proposed rule, two had unclear positions, and only one supported the proposed rule. For the one entity who supported the proposed rule, it was unclear from its initial request whether it supported or opposed the proposed rule. It became clear only in its supplement in response to the Agency’s cure letter that it favored moving marijuana to schedule III over keeping it in schedule I.”

DEA’s “silence, facially arbitrary participant selections, and ex parte assistance almost entirely to anti-rule applicants, are strong evidence that the Agency acted with an impermissible purpose of creating an evidentiary record supporting its preferred outcome—rejection of the proposed rule,” the filing says.

“The fundamental unfairness caused by the ex parte communications in particular cannot be cured by mere explanation,” it continues, adding that a mandate for a redo of the witness selection process “will not unduly delay the rulemaking hearings, which are currently stayed pending the interlocutory appeal by pro-rule participants.”

“The Court should vacate the Agency’s orders selecting participants and excluding Petitioners and remand with instructions for the Agency to redo the selections,” the suit says.

Prior to DEA Administrative Law Judge John Mulrooney’s ruling that delayed the rescheduling hearings, D4DPR separately filed a request with the federal appeals court seeking a stay of the proceedings. And another organization that was also denied participation, Veterans Action Council (VAC), similarly filed a petition with the same court in December to request a review of the agency’s decision to exclude it from the proceedings.

In his notice to the former DEA administrator, the agency judge explained that this followed his denial of 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.

Last month, Mulrooney 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.

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.

In the background of this latest legal challenge, advocates and stakeholders are also closely following developments in the Trump administration as it concerns possible cannabis policy decision-making—and they’ve been left discomforted by recent nominations in high-level relevant positions.

For example, President Donald Trump has nominated a vociferously anti-marijuana official to serve as the lead attorney at the U.S. Department of Health and Human Services (HHS), drawing praise from cannabis prohibitionists.

Of course, the recently Senate-confirmed secretary of HHS, Robert F. Kennedy Jr. was previously vocal about his support for marijuana legalization. But despite that stated support, following his confirmation Kennedy said he’s is “worried about” the normalization of high-potency marijuana and that he feels its use can have “really catastrophic impacts” on people, but that state-level legalization can facilitate research into its harms and benefits.

The comments came on the same day that Sen. Pete Ricketts (R-NE) said he received a commitment from Kennedy to “follow the science on the harms of marijuana.”

Ricketts had already disclosed that he spoke to Kennedy about the the “importance” of “preventing the expansion of marijuana.” Now he says “RFK committed to me that he would follow the science on the harms of marijuana.”

The senator separately filed a bill last week alongside Sen. James Lankford (R-OK) that seeks to prevent the marijuana industry from taking federal tax deductions even if it’s rescheduling.

Despite Kennedy’s history of advocating for cannabis legalization, he said last month that he will defer to the Drug Enforcement Administration (DEA) on marijuana rescheduling in his new role.

That could complicate rescheduling. Trump officially named his pick to lead DEA—selecting a decades-long agency veteran and top Virginia official who’s voiced concerns about the dangers of marijuana and linked its use to higher suicide risk among youth.

Separately, anti-marijuana Rep. Andy Harris (R-MD) told Marijuana Moment recently that it’s “definitely” time to have a talk with Kennedy to convince him that “marijuana is harmful” and that the way to make Americans healthy is by “limiting” its use.

Prior to Kennedy’s written responses to members of the Senate Finance Committee that gave him initial approval, Sen. Elizabeth Warren (D-MA) pressed him to reiterate his position on marijuana legalization amid the ongoing effort to federally reschedule cannabis.

A political action committee founded by former Vice President Mike Pence had attempted to undermine the confirmation Kennedy as HHS secretary—in part by drawing attention to his support for marijuana and psychedelics reform, as well as his personal history with substance misuse.

Read the doctors’ group lawsuit against DEA over the marijuana rescheduling process below:

Key Pennsylvania GOP Senator Doesn’t See ‘Any Path Whatsoever’ To Legalizing Marijuana Under Governor’s Proposal

Photo elements courtesy of rawpixel and Philip Steffan.

The post Doctors Supporting Marijuana Rescheduling File Lawsuit Calling For DEA Witness Selection Redo Over Alleged Unlawful Conspiracy With Reform Opponents appeared first on Marijuana Moment.