This article was corrected to reflect that Robert Murphy replaced Derek S. Maltz in May as the DEA's acting administrator, as the Senate has yet to confirm Trump nominee Terrance Cole.
The Drug Enforcement Administration’s only update to the judge overseeing a cannabis rescheduling hearing is that there is no update.
The DEA sent the second 90-day status update on July 7 to John J. Mulrooney II, the agency’s chief administrative law judge, on behalf of the government and a pair of pro-rescheduling movants that Mulrooney granted an interlocutory appeal to in January.
When the judge granted the rare appeal—placing a stay on the rescheduling proceedings before the process could play out to debate the merits of a proposed rule to reclassify cannabis from Schedule I to Schedule III under the Controlled Substances Act—he ordered the DEA and the movants to provide him joint status updates every 90 days.
Mulrooney also ordered the office of the DEA administrator to fix a briefing schedule and for the administrator to “entertain oral arguments if he/she desires” from the hearing’s designated participants. The administrator is then to issue a binding, written decision to Mulrooney on whether the hearing process should resume.
However, the July 7 update was identical to the first update submitted three months ago, as Derek S. Maltz, the DEA’s acting administrator from Jan. 21 until early May, when he stepped down, had failed to set a briefing schedule. So too has his replacement, Robert Murphy.
While President Donald Trump picked agency veteran Terrance Cole to be the next DEA administrator on Feb. 11, the U.S. Senate has yet to confirm that nomination.
Shane Pennington, a partner at Blank Rome LLP, confirmed with Cannabis Business Times that this week’s update is "identical" to the one submitted in April, meaning the DEA has failed to make meaningful headway on the orders in the appeal. Pennington represents the movants who requested the interlocutory appeal, including cannabis company Village Farms International and veterans group Hemp for Victory. He is part of the joint updates.
“To date, movants’ interlocutory appeal to the acting administrator regarding their motion to reconsider remains pending with the acting administrator,” DEA attorneys wrote. “No briefing schedule has been set.”
The Connecticut Office of the Cannabis Ombudsman (OCO), previously represented by Matthew Zorn, also joined the request for an interlocutory appeal; however, Mulrooney granted OCO’s request in early February to withdraw as a pro-rescheduling designated participant altogether, and Zorn left his law firm to take on federal employment to serve as deputy general counsel in the U.S. Department of Health and Human Services (HHS).
The interlocutory appeal stems from the movants’ argument that the DEA colluded with anti-rescheduling participants via improper ex parte communications and neglected to disclose a conflict of interest with another participant, claiming that the agency attempted to “subvert the process and thwart” the Department of Justice’s proposed rescheduling rule.
More specifically, Doctors for Drug Policy Reform (D4DPR), a nonprofit organization of medical professionals in support of evidence-based cannabis regulation, uncovered through a lawsuit in the U.S. Court of Appeals for the D.C. Circuit that the DEA sent “cure letters” to several anti-rescheduling entities hoping to participate in the hearing process. The cure letters provided them the opportunity to submit supplemental information showing that they met the “interested person” status under the Administrative Procedure Act.
D4DPR was represented in that lawsuit by Austin T. Brumbaugh, one of Zorn’s former colleagues at Yetter Coleman LLP. D4DPR was one of the 138 requesters denied participation.
Although D4DPR dropped the lawsuit in April, it reserved the right to refile the case should the DEA opt to keep cannabis a Schedule I drug.
“This legal effort exposed fundamental flaws in the DEA’s process and reinforced the need for a more transparent, science-driven approach to drug scheduling,” D4DPR President Bryon Adinoff, M.D., said at the time.
The lawsuit exposed the details behind Mulrooney’s initial concerns regarding the unknowns behind the DEA’s October 2024 selection process for 25 designated participants. The complete pool of 163 requestors wasn’t disclosed until the D4DPR lawsuit.
“Although the participant letter designated a list of enumerated entities and individuals as [designated participants], there is no indication in the four corners of the document as to whether the ‘participants’ support or oppose the [proposed rule] or how the ‘participants’ satisfy the ‘interested person’ definition set forth in the regulations,” Mulrooney wrote in an October 2024 order.
Then, after allegations surfaced that the DEA was colluding with anti-rescheduling groups, the DEA judge scolded the agency in his Jan. 13 order granting the interlocutory appeal.
“The government’s failure to acknowledge in any way the gravity of the highest levels of its organization allegedly reaching out to help one of the potential DPs fortify its application to ease the task of justifying its apparently pre-made determination for appeal demonstrates an arrogant overconfidence that may not serve it well in the future,” the judge wrote.
Those allegations were aimed at the DEA while under the tutelage of former Administrator Anne Milgram, who served under President Joe Biden. While Biden directed his administration to review how cannabis is scheduled in October 2022, with a Schedule III recommendation from the HHS in August 2023, Milgram ensured the process would be extended beyond the presidential election when she granted an administrative law judge hearing in August 2024.
Milgram had the authority to bypass the hearing process entirely and issue a final rule to reschedule cannabis while Biden was still in office.
Now, her presumable successor, Cole, is lined up to take the reins upon Senate confirmation. While Cole’s stance on cannabis appears to align with the late former first lady Nancy Reagan’s “Just Say No” campaign from the 1980s, his comments during an April 30 nomination hearing provided some optimism for some pro-rescheduling groups.
Cole told U.S. Senate Judiciary Committee members that “it’ll be one of my first priorities” upon being confirmed to review where the DEA is in the administrative process to reschedule cannabis, and that “it’s time to move forward” with the process.
However, Cole would not commit to the DOJ’s Schedule III proposed rule when pressed by a pair of Senate Democrats, instead saying he would provide “careful consideration” to the rescheduling matter.
With the administrative law judge hearing now at a six-month standstill, it appears unlikely that a briefing schedule will be “fixed” to move the process forward until Cole is officially confirmed.
Still, many believe cannabis rescheduling comes down to one person: the president.
