The Drug Enforcement Administration (DEA) has taken a one-sided approach in favor of prohibitionists ahead of a cannabis rescheduling hearing that’s set to commence with preliminary proceedings next month, according to a Nov. 18 legal motion.
As part of this administrative process, the Department of Justice (DOJ) Chief Administrative Law Judge (ALJ) John J. Mulrooney will hear testimonies from pre-approved participants who are “adversely affected or aggrieved” by a proposed rule to reclassify cannabis from a Schedule I to Schedule III drug under the Controlled Substances Act (CSA). These testimonies are tentatively scheduled for January or February.
The purpose of the hearing is to decide whether cannabis should remain alongside heroin, LSD and ecstasy under the CSA, or if the plant has currently accepted medical use in the U.S., requiring it to be relisted to a lower category, such as Schedule III, as the U.S. Department of Health and Human Services and the Food and Drug Administration have recommended.
“That is a serious question worthy of robust debate,” Shane Pennington, a partner in the litigation department at Porter Wright Morris & Arthur LLP, wrote in the Nov. 18 motion he filed on behalf of one of the hearing’s designated participants, cannabis company Village Farms International. The motion was filed jointly with another participant, Hemp for Victory, a nonprofit veterans group.
“But instead of admitting doctors, researchers, and scientists as designated participants who could shed light on that question, DEA has stacked the deck with people and organizations without standing and devoid of any relevant testimony to offer in an effort to influence the outcome before this tribunal has had an opportunity to evaluate any evidence,” Pennington wrote. “This process has been anything but typical for a democratic republic.”
The 57-page motion intends to disqualify and remove the DEA as a “proponent” of the proposed rescheduling rule in the ALJ hearing and instead replace the DEA with the DOJ.
This comes after DOJ head, Attorney General Merrick Garland, signed a 92-page notice of proposed rulemaking (NPRM) on May 16 for rescheduling cannabis, a document historically signed by the head of the DEA.
The absence of DEA Administrator Anne Milgram’s signature on the NPRM raised red flags earlier this year about the agency’s position on cannabis rescheduling—despite the current schedule review process originating directly from the White House. More specifically, the NPRM stated that the “DEA has not yet made a determination as to its views of the appropriate schedule for marijuana.”
For this reason, Pennington said he believes the DOJ, not the DEA, is the appropriate agency to act as the “proponent” for the proposed rescheduling rule during the upcoming ALJ hearing.
“If you’re the agency that proposed the rule, then it makes sense that it’s your burden to support your rule, be the champion and cheerleader of your rule at the hearing, to bring forward the evidence [and] to put on the witnesses,” Pennington told Cannabis Business Times. “The problem here is DEA didn’t propose the rule. If you remember, who signed the notice of proposed rulemaking this time? Merrick Garland did.”
Despite his responsibility as the presiding judge over the cannabis rescheduling hearing, Mulrooney seemed unaware this week that it was the DOJ—not the DEA—that signed off on the NPRM.
Mulrooney issued an order on Nov. 19 approving some and rejecting others among the DEA’s proposed participants for the upcoming hearing. Also, he briefly addressed Pennington’s legal motion that was filed the previous day.
“To argue, at this procedural juncture, that the DEA is an improper advocate or sponsor of its own NPRM adds nothing to the standing equation and (at least on the present record) presents little more than an ad hominem distraction from the important advocacy and adjudicative work to be accomplished in these proceedings,” Mulrooney wrote.
In Mulrooney’s order, he also denied two of the 25 witnesses whom the DEA provided for participation in the hearings:
- The Doc App Inc. (d/b/a My Florida Green), which offers treatment support for more than 43,000 medical cannabis patients in Florida; and
- Ellen Brown, who serves as the research subcommittee chair for the Massachusetts Cannabis Advisory Board.
Milgram on Oct. 28 provided Mulrooney with the DEA’s list of 25 participants for the hearing, but she neglected to provide the ALJ with the selected participants’ positions on the proposed rescheduling rule and how the DEA determined that each participant satisfied the “interested person” definition outlined in regulations. This lack of documentation came after the DEA said it was committed to a transparent process.
Upon receiving the list, Mulrooney ordered the designated participants to provide information regarding their positions as well as their qualifications as “interested” persons under the Administrative Procedure Act (APA). He also asked them to disclose “any conflicts of interest” with the DEA or DOJ leadership or relevant personnel (more on this below).
RELATED: DEA Names 25 Participants for Cannabis Rescheduling Hearing That’s Now Delayed Until 2025
Now, two weeks before the preliminary hearing proceedings are scheduled to begin on Dec. 2, cannabis rescheduling advocates are not only accusing the DEA of attempting to manipulate the hearing process by stacking the deck in favor of prohibitionists via the participation list, but the joint motion Pennington filed on Monday claims that the DEA colluded with prohibitionists.
“The deck is stacked such that you have all these prohibitionists working with them,” Pennington said. “Then we find out that DEA has been colluding with SAM behind the scenes, and SAM’s been bragging about it on social media.”
SAM, or Smart Approaches to Marijuana, is the top prohibitionist group in the nation, with Kevin Sabet, a former three-time White House Office of National Drug Control Policy adviser, as its CEO and president. The DEA named SAM, along with some of the group’s affiliates, among the list of 25 designated participants.
Specifically, the DEA included as a participant Community Anti-Drug Coalitions of America, represented by public policy consultant Sue Thau, whom SAM featured as a speaker in a June webinar on rescheduling.
“We should get a deposition of Kevin Sabet and SAM,” Pennington said. “You’re telling me that the people he had on his webinar just magically all got into this hearing, but Colorado and Sue Sisley didn’t? I mean, I’d have to believe in unicorns, man. I’d sooner believe in the Easter Bunny.”
Pennington also took issue with the DEA’s inclusion of Nebraska—one of 12 states absent of a medical cannabis program—over Colorado, a state that pioneered the adult-use legalization movement. Specifically, Nebraska will be represented by state Attorney General Mike Hilgers, who has forged an opposition campaign against a pair of voter-approved medical cannabis legalization initiatives, while Colorado Gov. Jared Polis’ request was never responded to.
Furthermore, Pennington criticized the DEA for leaving out DEA-registered bulk cannabis grower Dr. Sue Sicily, of the Scottsdale Research Institute, one of the most experienced researchers in the space.
“She’s out, but nobody knows why,” Pennington said of Sisley. “DEA never sent her a denial. And all these people who did not get denials to their request to participate, that’s a violation of the APA. The Administrative Procedure Act says in Section 555(e) that if an agency is going to deny a written request, like a written request to participate in a hearing, that’s fine, but it has to provide prompt notice to the requester with the reasons for the denial. That’s the law. That’s the statute.”
Cannabis Business Times confirmed with Sisley that she requested on Sept. 29 to participate in the DEA’s cannabis rescheduling hearing and that she followed up with the DEA on Oct. 6 in an attempt to confirm that the agency received her request to participate. But she never received a confirmation nor a denial notice, she said.
To date, there’s no public record from the DEA providing a complete list of who requested to participate, and that’s troublesome for Pennington.
If, for example, the 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, according to the legal motion.
“We don’t have a record of who made requests,” Pennington said. “We don’t have a record of who got denials. We don’t have a record of who received nothing. … We don’t have the reasons why the people that got in, got in.”
This lack of documentation, in part, spurred Pennington to file the motion this week so that cannabis rescheduling advocates can function with judicial review in mind ahead of the upcoming hearings.
Just as SAM has indicated it’s prepared to sue should the DEA issue a final rule to reclassify cannabis as a Schedule III substance, rescheduling proponents have to be prepared for the contrary, he said.
“So, in order to get through the gauntlet of judicial review … it’s not good enough to know what happened in your mind as an advocate,” Pennington said. “You have to have a record of it, right? The court is only going to look at the record. And so, if you say in court, ‘This is unfair; DEA stacked the deck; they did all these things,’ but you can’t point to the beef in the record, then the court really can’t do anything for you.”
While there were 57 pages of beef in the motion, Pennington outlined two primary causes for concern:
- The DEA decided who was going to participate in the hearings and who was going to be left out before it even sent the case to the ALJ, which is “unusual;” and
- The DEA administrator didn’t send any of the requests that she received to participate in the hearing to the ALJ.
This is problematic, Pennington said, because it’s Mulrooney’s job to maintain a complete record to ensure fair and transparent hearings and to ensure that decisions are made based on a full picture of the evidence.
“And there’s no way to do that if we’re starting with a tainted stacked deck, which is what we’re starting with,” he said. “And that’s the first problem.”
Specifically, Pennington called attention to a May 6, 2024, social media post in which Sabet wrote: “BIG: I can now say with full confidence that the Administrator of the DEA, Anne Milgram, did NOT sign the rescheduling order, breaking with five decades of precedent and established law and regulations (two confidential sources inside DEA and another outside DEA with intimate knowledge tell me).”
Garland didn’t officially sign the rescheduling order until May 16, and The Associated Press didn’t break that news until May 20, two weeks after Sabet’s prediction that Milgram wouldn’t be the one to sign it.
When Pennington asked Sabet how he knew about this more than a week before the AP, Sabet replied: “A wise man once said, ‘I’ve got friends in low places.’”
While Mulrooney said in Tuesday’s order that Village Farm International’s accusation—through Pennington’s filing—that the DEA is an improper advocate/sponsor for the hearing is “unsupported,” he further addressed the accusations in a separate order released Wednesday.
Notably, Mulrooney said he has no “specifically enumerated authority” to remove the DEA and its attorneys from the rescheduling hearings.
“On the other side of the coin,” Mulrooney wrote, “the allegations regarding alleged improper ex parte communications are serious, and the concomitant obligations to memorialize and report such communications set forth in the APA and the regulations are by no means couched in permissive language.”
In other words, Mulrooney acknowledged that any collusion between the DEA and a prohibitionist group like SAM in an attempt to manipulate the rescheduling process would be a violation of the APA.
Accordingly, Mulrooney ordered that “should” the DEA “elect to respond” to Pennington’s motion and its integral allegations, “it may do so” no later than 2 p.m. Nov. 25.
That is to say that the DEA can completely ignore the motion if it wishes.
Pennington doesn’t necessarily expect a response from the DEA. From his perspective, the agency has shown an “unalterably closed mind” on the proposed rescheduling rule and therefore must be excluded from the administrative process under the APA.
“This is going to be a test of whether this ALJ is going to actually take the steps necessary to have a fair hearing,” Pennington said. “And if we have one, we are confident that just like every step in this process, we will have the evidence and the science on our side. But the question is, are we even going to get a chance?”
