A Drug Enforcement Administration (DEA) judge has denied a motion to remove the agency from its role in an upcoming marijuana rescheduling hearing—though he sharply criticized responses from DEA and a prohibitionist group over an allegation that they unlawfully communicated during the cannabis rulemaking process.
With the initial rescheduling hearing set for next week, DEA Administrative Law Judge (ALJ) John Mulrooney has been addressing multiple motions from interested parties, largely centering around witness participation in the proceedings.
But one motion from two designated participants—Hemp for Victory and Village Farms International—made an especially bold assertion: It alleged DEA effectively conspired with Smart Approaches to Marijuana (SAM), an anti-cannabis group that was selected to serve as a witness. And that alleged ex parte communication, coupled with DEA's apparent indecision over the proposed rule, should be grounds to remove the agency as the designated "proponent" of the rescheduling rule.
Mulrooney had already indicated that it's statutorily beyond ALJ authority to take that action, and he formally denied the motion on Wednesday.
"There is no question that the allegations raised by the [ex parte motion (EPM)] are distasteful and arguably unhelpful to the public's perception that the proceedings will be transparent," the order says. "That said, this tribunal is without authority to grant the supplementation and removal relief sought (the only relief sought) by the Movants."
But the judge also took the opportunity to more substantively address the allegations of unlawful communications between DEA and SAM, rebuking both parties' response briefs that categorically denied the claims of misconduct.
He said that, "in view of the nature of the allegations, the denial of the EPM does not finish the job."
After describing ex parte statutes in the Administrative Procedures Act (APA) and Controlled Substances Act (CSA), Mulrooney challenged DEA's "bold declarations" that it was innocent of violating the rules. He wrote that "these seemingly courageous proclamations are quickly all but eviscerated by the Government's surprising qualification that this proclamation of innocence extends only to the ‘DEA counsel of record.'"
That is, DEA denied the improper contacts, but only for its counsel of record in the hearing, whereas the motion that raised the allegations were not limited to only those officials.
"Thus, the Government defended against an allegation that was never actually leveled, and never dealt with the true gravamen of the factual allegations of the EPM," the order says. "Stated differently, the Government responded to an allegation that it created, not the one that was in issue."
"As discussed, supra, the applicable APA provisions are not so slender or lacking in common sense as to limit their applicability to a Government trial team who was never alleged to have made the communication in the first place. In its peculiar, semi-blanket denial, the Government did not happen to address staff members who actually may have made the purported communication, or those who may have been advising the Administrator at the time she was making decisions about whether there would be a rescheduling action, and who (if anyone) would sign the [notice of proposed rulemaking]."
The judge also noted that there's "no indication in its [DEA's response] that the Government has made even the mildest attempt to ascertain the truth and disclose it to the public and this tribunal."
Mulrooney further took SAM to task over its separate response to the allegations. The prohibitionist group maintained, for example, that any ex parte communications would have had to occur after the notice of proposed rulemaking was published, signaling that SAM President Kevin Sabet's talks with confidential sources at DEA that he posted about on social media ahead of the notice would not qualify as unlawful under the statute.
"This argument misleadingly omits from its analysis that portion of the relevant APA section that incorporates the critical qualifier ‘unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge,'" the order says.
The judge said "it would defy reason to suggest that Dr. Sabet and whoever in the DEA he may have spoken to were not aware that decisions in this matter were imminent."
"Such decisions would include not only whether the DEA Administrator intended to sign and support the goal of the NPRM, but also, who would be ultimately identified as a Designated Participant (or at least, what criteria would be used in reaching that determination)," he said.
"By SAM's reckoning even if a prospective party to a rulemaking proceeding were to spend hours advocating its position to the decider on the day before publication in the Federal Register, that public servant (who would clearly have had knowledge of the publication) would have no obligation to reveal that to a soul; not to the public, not to the parties who were not invited, not to the administrative record, and certainly not to any reviewing courts. This indeed would be a very restrictive view of the ethical obligations of a public servant, and perhaps less transparency than the public might expect from its government."
SAM also contended that there's no evidence that the alleged communications with DEA concerned the merits of the rescheduling proposal, so they could not therefore be considered ex parte.
Mulrooney agreed that merit is a key component of the statute at play, but "as is often the case with secret communications, by design the act of shielding the contents from others inhibits the ability to discover their contents."
"There is no context as to the conversation surrounding Dr. Sabet's social media announcements regarding his ‘two confidential sources inside [the] DEA,' or why those sources would be close enough to the Administrator to render their obvious violations of her confidence to be deemed reliable," he said.
"It is also challenging to interpret the comments Dr. Sabet allegedly posted as a status check. Likewise requiring some level of creativity is reconciling SAM's argument that rescheduling proceedings had not commenced with its current position that Dr. Sabet was performing a status check. Stated differently, if there were no proceedings yet in existence, what would Dr. Sabet have been checking the status of?"
"SAM dismisses the allegation essentially on the basis that others (including some who publicly favor the NPRM) were equally loquacious on social media," the order says. "An inescapable point here is that (unlike SAM) none of those others are DPs in this case, and based on the motion practice to date, many of those not selected to participate do not seem to have an understanding as to why that is true."
In light of all this, the ALJ said his job was then to determine whether the allegation of illegal communications justified an order to have the government and SAM prove their ex parte innocence.
"As unappetizing as this whole misadventure appears, the remedy test for improper ex parte communications is whether the communication materially affected or will affect the way a given case is or has yet been decided," he said.
"Dr. Sabet (for whatever his reasons were) elected to alert the world through social media that he was receiving privileged information from those close to Agency leadership. When he told the world, he also told the Movants. The Movants knew about Dr. Sabet's online bragging before these proceedings began. At this juncture, this question hinges on ‘whether, as a result of improper ex parte communications, the agency's decisionmaking process [has been or would be] irrevocably tainted so as to make the ultimate judgment of the agency unfair, either to an innocent party or to the public interest that the agency [is] obligated to protect.'"
"Here, because I have concluded that, at least based on the papers I have, there is insufficient basis to support such a conclusion, even if every fact alleged in the EPM were assumed arguendo to be accurate, no order to show cause will issue," he said.
That is, without an "ultimate judgment" being rendered in the rescheduling proceedings at this stage, the judge said he could not order DEA or SAM to further establish that they didn't engage in the alleged conduct.
Meanwhile, in a prehearing statement submitted to Mulrooney on Tuesday, 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 is scheduled for December 2, 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 DEA Administrator Ann Milgram submitted.
Separately, the judge last week 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.
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.
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.
