DEA Judge Says Agency Made A Critical ‘Blunder’ In Attempt To Force FDA Officials To Testify At Marijuana Rescheduling Hearings

A Drug Enforcement Administration (DEA) judge says the agency made a critical “blunder” in its effort to issue subpoenas to force Food and Drug Administration (FDA) officials to testify in upcoming marijuana rescheduling hearings—but he has allowed it to fix the error and ultimately granted the request.

While DEA advised Administrative Law Judge (ALJ) John Mulrooney that it wanted to furnish subpoenas for four FDA officials after the U.S. Department of Health and Human Services (HHS) declined to voluntarily participate, it erred by putting just one of those officials on all four forms.

Accordingly, the judge initially only granted the single subpoena—though DEA was still given the opportunity to correct the mistake. After submitting the required forms, the ALJ granted the remaining three subpoenas on Tuesday.

Still, Mulrooney made his frustration with the mistake clear.

In an order on Monday the ALJ said the duplicative filing “is apparently an error borne of inattention or inadvertence.”

“To be sure, a blunder of this nature on a case that has garnered a significant level of national attention is an unexpected development, particularly in light of the unique dynamic of one agency of the United States Government seeking process to compel the attendance of multiple employees from another agency of the United States Government,” he said.

The judge also noted that, in addition to the subpoena request, DEA submitted a revised version of its “previously filed, incomplete prehearing statement” that he’d already criticized the agency over, and it contained a series of motions for relief. That included a request to be exempt from a rule to provide the ALJ with three hard copies of any exhibits it plans to introduce at the hearings.

DEA’s requested the exemption because it plans to submit thousands of public comments on the notice of proposed rulemaking (NPRM) to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA). The judge had previously advised the agency that the comments “are not evidence” and “cannot be,” admonishing the agency not to attempt to insert the submissions.

“No good cause of any kind beyond the Government’s convenience is averred or supported in its motion,” Mulrooney said in the new order. “The Government is a party in this matter. It must be and will be afforded the same rights and obligations as the other parties.”

“Although allowances have been made (and may be made in the future) to accommodate the reality that, as the proponent of the rule, the Government bears the burden of proof, this request to be treated more favorably than the other parties stands unrelated to its burden,” he said.

Regarding the agency’s desire to submit public comments on marijuana rescheduling as evidence, which Mulrooney previously said could be seen as a delay tactic, the judge in the new order said that “any party seeking to admit any comment as evidence must be prepared to establish a foundation that complies with the regulations and the NPRM.”

This applies with equal force to each comment,” he said.

Mulrooney noted, however, that the hearing has not yet reached the stage where evidence is being accepted or rejected for the proceedings.

“Inasmuch as the hearing in this matter has not yet commenced, no evidence has been offered or received,” he said. “Thus, it would be premature to render a decision on whether the comments filed in response to the notice of proposed rulemaking (the NPRM) will be received into the record.”

Mulrooney said that one “troubling aspect” of DEA’s prehearing statement making the request included an “incomplete (and arguably misleading) parenthetical quote” from the NPRM, omitting key language about the standard evidence must meet in order to be accepted in the hearing process.

Meanwhile, a cannabis research company is separately asking the DEA judge to allow it to add a young medical marijuana patient and advocate as a witness in the upcoming hearing on the Biden administration’s proposal to reschedule the drug.

Separately, one of the nation’s leading marijuana industry associations is asking the judge to clarify whether it will be afforded the opportunity to cross-examine DEA during the upcoming hearings on the cannabis rescheduling proposal.

Also, 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.

Mulrooney also recently addressed motions seeking to remove DEA from the proceedings altogether, in part due to the alleged unlawful communications with the president of one designated participant, the prohibitionist group Smart Approaches to Marijuana (SAM), signaling that he considered it statutorily complex and potentially impractical to force the agency to turn over its records on the reported ex parte communications.

“If people were going to be bad people, would they write it down in a memo so that everyone could read it?” he asked attorney Matt Zorn, who filed a Freedom of Information Act request and subsequent lawsuit to obtain any records of the talks and represents D4DPR in the latest motion. “What are you chasing? Are you chasing a note that somebody wrote, ‘I had an improper conversation with somebody else, I wanted to put it the memo in case someone wants to indict me?’”

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.

But while DEA is designated as the “proponent” of the proposed rule, there’s been skepticism about where the agency’s leadership actually stands on the issue and whether it may insert bias into the hearing process.

In a prehearing statement submitted last month, 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.

Meanwhile, Mulrooney also denied a motion to remove the agency from hearings on the cannabis proceedings. However, he sharply criticized responses from DEA and a prohibitionist group over an allegation that they unlawfully communicated during the cannabis rulemaking process.

An attorney subsequently filed a lawsuit against DEA for allegedly violating federal public records laws, requesting that a court compel the agency to disclose communications with SAM.

Separately, the judge 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.

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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.

Trump’s recently announced pick for DEA administrator, Hillsborough County, Florida Sheriff Chad Chronister, backed a cannabis decriminalization policy enacted by local officials.

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 DEA judge’s order on the agency’s cannabis rescheduling motions below: 

DEA ALJ Order Rescheduling … by KyleJaeger

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Photo courtesy of Philip Steffan.