A coalition of health professionals that advocates for cannabis reform is asking a Drug Enforcement Administration (DEA) judge to halt 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.
On the same day the DEA Administrative Law Judge (ALJ) John Mulrooney issued a ruling that laid out the timeline for merit-based hearings on the Biden administration’s rescheduling proposal, attorneys for the group Doctors for Drug Policy Reform (D4DPR) notified his office that it filed a petition with a federal court challenging DEA’s denial of its participation in the proceedings.
D4DPR is now asking the DEA judge to 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.
The doctors group’s motion argues that the it will be “irreparably harmed” without a stay, that it expects to prevail on the merits of its arguments and that “public interest favors a stay.”
A central component of the filing is a claim that DEA Administrator Anne Milgram “failed to adequately explain her reasons for rejecting” D4DPR’s request to participate in the hearings. While it was Attorney General Merrick Garland who signed off on the proposed rescheduling rule—a historic break in precedent—Milgram selected 25 witnesses for the proceedings that kicked off on Monday.
“The Administrator’s proffered reasons for denying the Organization’s request are threadbare,” the motion says, alleging that the ambiguity and lack of stated rationale amounts to statutory violations in the rulemaking process.
Milgram had also asserted the the organization didn’t qualify as an “interested party” in the rescheduling case, which D4DPR is contesting in part because it says its membership may be adversely impacted by a decision to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA).
While the coalition isn’t opposing the modest reform, per se, it argued that it should be afforded an opportunity to testify in the hearings because “its membership would be adversely affected if marijuana were moved to schedule III instead of schedule IV or V because ‘it may affect how medical marijuana is recommended/prescribed or dispensed, which at present, is done based on recommendations and not prescriptions due to its Schedule I status.’”
David Nathan, a co-founder and past president of D4DPR, told Marijuana Moment that his organization is “the only physicians’ advocacy group of its kind, offers a unique, expert, and nuanced perspective on the merits of rescheduling versus descheduling of cannabis.”
“That the DEA excluded us from the hearings, while allowing the participation of lesser-known prohibitionist groups, speaks volumes about their intentions,” he said. “D4DPR is seeking an expedited review in the D.C. circuit court, so hopefully this can be resolved quickly and groups like ours can make our voices heard, bringing scientific and medical evidence into the conversation about rescheduling.”
The group’s legal filing said that moving marijuana to schedule III instead of schedule V would impact dispensing limits for prescriptions. “To the extent the Administrator concluded that the Organization’s request did not support a finding that it was an ‘interested person,’ that decision was unreasonable and not in accordance with law.”
“The Organization will certainly be irreparably harmed if the rulemaking hearing proceeds without its involvement because its participation rights cannot be vindicated after-the-fact. Once the Administrator decides, without the Organization’s oral testimony, whether to issue a rule, the cake has been baked. Even if the rule is promulgated as proposed, the Organization will have been harmed because it will have been deprived of the opportunity to challenge the medical and scientific analysis underlying the judgment that schedule III—rather than IV or V—is appropriate for marijuana.”
While a decision to stay the hearing would likely elicit pushback from certain industry stakeholders who are hoping for an expedited rescheduling process, the motion asserts that a temporary delay to allow the federal court’s review “will benefit all participants,” and it stressed that D4DPR “intends to take all reasonable steps to reduce the length of delay, including by seeking expedited consideration in the D.C. Circuit.”
“Fundamentally, the petition calls for a fair and transparent process at the first and arguably most critical step in these proceedings: the selection of who may participate and present evidence in the hearing,” it says. “Any delay caused to the other parties ‘will not be indefinite but will only last through the pendency of appeal.’”
“Open and balanced participation in rulemaking proceedings furthers the public interest by ensuring the Agency considers the most relevant evidence on both sides of the question. This is especially true when the subject of rulemaking is a drug used as medicine by over six million Americans. The public has a strong interest in being governed only by rules that emerge from a fair process.”\
“The Administrator’s cloaked selection process—even assuming it resulted in adequate representation on both sides of the question—harms public perception,” D4DPR’s filing with the DEA judge said. “Public confidence in these proceedings is especially threatened by the many other unusual circumstances that have cast on them a shadow of impropriety, including the interagency dispute mediated by [the Office of Legal Counsel], the Attorney General’s unprecedented decision to initiate rulemaking on his own, and the evidence of ex parte communications between the Agency and an antirescheduling participant.”
“A stay is appropriate at least to allow the court of appeals time to dispel any public doubt about the integrity of these proceedings,” it concludes.
To that point, the DEA judge in his prehearing ruling on Wednesday scolded the agency for failing to provide required documents ahead of Monday’s initial rescheduling hearing and directed officials—in bold, all-caps text—to furnish them later this month.
“For reasons that are not altogether apparent, although directed to do so in the November 19, 2024 Standing Order, the Government did not supply the complete list of documentary evidence it intended to offer into the record,” the judge wrote. “Instead, the Government noticed a few documents and indicated below the line that notice of more documents could be forthcoming upon a supplemental filing date.”
“In fairness to the Government’s position, a supplemental prehearing statement date is not an uncommon feature of DEA administrative enforcement proceedings,” the Mulrooney said. “There will be no supplemental prehearing statements in this formal rulemaking proceeding, and the Government is herein DIRECTED to furnish a complete list no later than The Homework Date” of December 13.
At Monday’s meeting, Mulrooney made clear that the hearings are not meant to determine “whether marijuana is good or marijuana is bad.” Instead, he’s focused on gathering expert input on the fundamental arguments from supporters and opponents of rescheduling regarding the appropriateness of a Schedule I versus Schedule III designation.
DEA said in a prehearing statement last month that, if the proposed rule is finalized, “the regulatory controls applicable to schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations.”
“If marijuana is transferred into Schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA,” the agency said. “Any drugs containing a substance within the CSA’s definition of ‘marijuana’ would also remain subject to the applicable prohibitions in the Federal Food, Drug, and Cosmetic Act.”
Mulrooney on Monday also 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 own witnesses plan to provide at the upcoming hearing—without clarifying where it stands on the rescheduling proposal.
The agency also said that the U.S. Department of Health and Human Services (HHS)—which carried out a scientific review that informed the proposal to move cannabis to Schedule III—“rejected” its request to provide witnesses.
While the initial preliminary hearing happened on Monday, 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.
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 cannabis group’s motion requesting a stay of the marijuana rescheduling proceedings below:
DDPR Marijuana Rescheduling Motion by KyleJaeger on Scribd
Photo courtesy of Philip Steffan.