Marijuana Rescheduling Judge Orders Prohibitionist Group to Respond to Collusion Claims

The administrative law judge (ALJ) tasked with presiding over the upcoming cannabis rescheduling hearing released a Nov. 21 order providing a prohibitionist group four days to respond to accusations it colluded with the Drug Enforcement Administration (DEA).

John J. Mulrooney, the chief ALJ for the Department of Justice, acknowledged in Thursday’s order that any “ex parte communications” between prohibitionist group Smart Approaches to Marijuana (SAM) and DEA officials ahead of the hearing—scheduled to commence with preliminary proceedings on Dec. 2—would be a violation of the Administrative Procedure Act (APA).

SAM is one of 25 designated participants whom DEA Administrator Anne Milgram selected and sent to Mulrooney on Oct. 28 to be included in the hearing process. Witness testimonies are tentatively scheduled to begin in January or February.

Mulrooney’s order for SAM comes one day after he provided a similar order for the DEA to respond to the allegations made in a Nov. 18 legal filing by two other designated participants: cannabis company Village Farms International and veterans group Hemp for Victory.

RELATED: Cannabis Rescheduling Advocates Say DEA Stacked Deck, Colluded With Prohibitionists

Attorney Shane Pennington, a partner at Porter Wright Morris & Arthur LLP, who filed the joint motion on behalf of Village Farms, told Cannabis Business Times earlier this week that the DEA’s participant list is “stacked” in favor of prohibitionists like SAM.

“Then we find out that DEA has been colluding with SAM behind the scenes, and SAM’s been bragging about it on social media,” Pennington said. Pennington goes into length in his legal filing about SAM President and CEO Kevin Sabet’s string of social media posts claiming he had sources inside the DEA providing him with information about the rescheduling process.

Editor’s note: Cannabis Business Times reached out to Smart Approaches for Marijuana for comment.

Although Mulrooney acknowledged the seriousness of the accusations in Wednesday’s order for the DEA and Thursday’s order for SAM, he is merely providing them the opportunity to respond to Pennington’s motion by 2 p.m. ET on Nov. 25—not requiring them to do so.

“As such, it is herein ORDERED, that in addition to the Government, should Smart Approaches to Marijuana (and by this order only that Designated Participant) elect to respond to the Motion it may do so no later than 2:00 P.M. Eastern Time on November 25, 2024,” Mulrooney wrote.

A separate accusation included in Pennington’s legal motion suggests that the DEA is unfit to serve as the “proponent” for the proposed rescheduling rule because it was the DOJ head, Attorney General Merrick Garland, who signed off on the notice of proposed rulemaking (NPRM) earlier this year—not the DEA administrator.

Garland signed off on the proposed rule to reclassify cannabis from a Schedule I to Schedule III drug under the Controlled Substances Act (CSA) following a recommendation from the U.S. Department of Health and Human Services (HHS) and the Food and Drug Administration.

“Garland doesn’t work for DEA,” Pennington said. “If you remember what DEA said, they opposed the rule. They opposed it so vigorously that it was forced to be sent to the Office of Legal Counsel for a resolution because DEA wouldn’t go along with HHS’s recommendation, which by the way, is the first time in the history of the CSA the DEA has rejected an HHS scheduling recommendation. And even after the attorney general concurred with HHS’s findings in the notice of proposed rulemaking, DEA still wouldn’t go along with it. And that’s astonishing given the fact that the attorney general’s legal conclusions are binding and his findings are binding on DEA, because he’s effing attorney general, right?”

From this viewpoint, there’s no reasonable conclusion that the DEA can serve as a “proponent” of the proposed rule because it has shown an “unalterably closed mind” in violation of the Due Process Clause of the APA, according to Pennington.

Mulrooney, in a separate order on Tuesday that predated the DEA and SAM orders, called the accusation “unsupported” that the DEA is an improper advocate/sponsor for the hearing. In stating that position, Mulrooney falsely said that the DEA was the agency that signed off on the NPRM when it was Garland who signed the order on the DOJ’s behalf. 

However, Pennington said he’s taking it as a win that Mulrooney didn’t dismiss the motion and is now addressing his legal filing in separate orders. Pennington told CBT that this indicates Mulrooney is dedicated to having a fair and transparent hearing, something the DEA said it wanted. 

That said, the DEA still hasn’t provided a complete public list of those who requested to participate in the upcoming hearing, for what reasons they wanted to participate, and why the DEA denied them the opportunity to participate.

This list is meaningful, Pennington said, because it would provide the public knowledge of whether there was bias in the DEA’s selection process. For example, if two researchers with expertise on the same topic both requested to participate in the hearing, but the DEA granted the request for the researcher who opposed the proposed rule and denied the request for the researcher who supported the rule, then there’d be an argument about the fairness of the process.

To that point, Pennington said that Milgram selected SAM and other prohibitionist organizations that work closely with SAM—such as the Community Anti-Drug Coalitions of America—to participate in the hearing without explaining why they were chosen over others, such as renowned researcher and DEA-registered cannabis grower Sue Sisley, of the Scottsdale Research Institute.  

“We don’t know why,” Pennington said. “We just don’t know. And anybody who tells you that they do know is just making it up, well, except for SAM. You should call SAM and ask them, because maybe their confidential inside sources would be able to tell you.”

Leading up to this point, there are two records for the cannabis rescheduling process, Pennington said.

“There’s one for chumps like me and you and the 43,000 people who’ve been sandbagged in this process who are trying to abide by the rules,” he said. “We have an incomplete record that doesn’t really matter, that’s been made up—contrived. And the whole time, somebody has been building a second record that’s secret and complete, and it’s for those in the know, or, as SAM says, ‘those who have friends in low places.’”