There’s nothing to see here.
That’s a quick summary of the Drug Enforcement Administration’s (DEA) 12-page response to cannabis rescheduling advocates, who filed a Jan. 6 motion for DEA Chief Administrative Law Judge (ALJ) John J. Mulrooney to reconsider the DEA’s role as the proponent of a proposed rule to reclassify cannabis in the upcoming hearing process. The hearing is scheduled to resume with expert testimonies on Jan. 21.
More specifically, the DEA argued in its Jan. 13 response that Mulrooney not only lacks the authority to remove the DEA as the proponent of the rule but that the rescheduling advocates offered no new evidence in their motion to reconsider.
“In short, movants must demonstrate that the evidence they now put forward was not available to them when they filed the first ex parte motion despite their diligent efforts to discover it,” DEA Diversion Section Attorney S. Taylor Johnson wrote in Monday’s response. “Here they fail.”
A team of lawyers filed the motion to reconsider last week on behalf of three designated participants (DPs) that the DEA named for the ALJ hearing: Cannabis company Village Farms International, veterans group Hemp for Victory, and the Office of the Cannabis Ombudsman (OCO), collectively referred to as “the movants.”
That trio backs the Department of Justice’s proposed rule to reclassify cannabis from a Schedule I to Schedule III drug under the Controlled Substances Act, a recommendation that the U.S. Department of Health and Human Services made in August 2023 after conducting a scientific and medical evaluation in cooperation with the Food and Drug Administration.
In the movants’ original motion from Nov. 18, Shane Pennington, a partner in the litigation department at Porter Wright Morris & Arthur LLP, wrote that the DEA stacked the DP deck with people and organizations that oppose the DOJ’s proposed rule in an attempt to influence the hearing’s outcome.
Moreover, Pennington argued that the DEA should be removed as the proponent of the DOJ’s proposal, claiming it’s hostile toward cannabis rescheduling and that it participated in ex parte communications with prohibitionist group Smart Approaches to Marijuana (SAM).
After the DEA denied those collusion allegations, and SAM’s legal counsel responded by saying the motion offered no evidence of any improper communications, Mulrooney issued an order denying the motion, explaining that he lacks the authority to grant the removal relief sought.
However, in the movants’ request for reconsideration filed on Jan. 6, the rescheduling advocates’ legal teams argued that new evidence showed that DEA Deputy Assistant Administrator Matthew Strait was working behind the scenes with an anti-rescheduling DP, the Tennessee Bureau of Investigation, to ensure that it would qualify as an “interested person” to participate in the hearings.
In addition, last week’s motion to reconsider claims that there’s new evidence showing that the DEA has a conflict of interest with another anti-rescheduling DP, the Community Anti-Drug Coalitions of America (CADCA), through a partnership on fentanyl- and cannabis-related matters.
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However, in the DEA’s response filed on Jan. 13, the government agency argued the movants incorrectly relied upon a Nov. 12 filing by the Tennessee Bureau of Investigation as new evidence, despite the filing predating the movants’ original motion from Nov. 18.
“Movants have failed to demonstrate good cause for filing their request out of time because they have failed to demonstrate that the newly discovered evidence was unavailable to them at the time they filed their original ex parte motion despite their diligent efforts to discover it,” Johnson wrote in response. “Thus, movants’ request for reconsideration should be denied.”
The DEA’s legal team also pointed to the “recently published” documents from December that the movants cited in their motion to reconsider as new evidence showing the conflict of interest with CADCA.
Johnson argued that the documents not only fail to demonstrate the DEA’s “undisclosed conflicts of interest,” but that one of the documents from Dec. 12 refers to a fentanyl-related summit that was held on Nov. 14-15, days before the movants filed their original ex parte motion.
“Movants are thus unable to rely on the December blog post as new evidence without demonstrating that despite their diligent efforts they were unable to discover a publicized summit dedicated to helping families affected by the fentanyl crisis before filing the first ex parte motion,” Johnson wrote.
Although the Administrative Procedures Act (APA) prohibits ex parte communications, the DEA argued that the movants pointed to no rule forbidding the DEA from requesting clarification from a party seeking permission to participate in the hearing.
However, the movants argued in their motion to reconsider that the DEA did not afford that same opportunity to pro-rescheduling parties that sought to participate in the hearing process, including the state of Colorado, the American Trade Association of Cannabis and Hemp (ATACH) and MedPharm, among others who received denials or no response at all.
Also in the motion to reconsider, the movants asked Mulrooney to disqualify DEA as the proponent of the proposed rule for having an “unalterably closed mind.” Or, at the very least, the movants asked Mulrooney to order the DEA to declare its alleged opposition to the proposed rule on the record and to realign the agency’s status in the hearing.
This came after DEA Deputy Section Chief James J. Schwartz—the agency’s lead counsel—sidestepped the government’s position, whether in support or opposition of the proposal, during a preliminary proceeding on Dec. 2, when Mulrooney let Schwartz off the hook for dodging the question, “What’s your position?”
There was no clarification of the DEA’s stance on a Schedule III relisting for cannabis in the Jan. 13 response filed with the ALJ.
Instead, the DEA reiterated that the tribunal (Mulrooney) previously made it clear that it lacks the authority to remove the DEA from its role as the proponent of the rule.
“Marijuana is presently a Schedule I controlled substance, and DEA continues to treat it as such,” Johnson wrote. “DEA’s mandate to enforce the law, see 21 U.S.C. § 801, et seq, and reduce illicit drug use does not bar DEA from serving as the proponent of the proposed rule. Indeed, if that were the case, DEA would never be able to propose descheduling a controlled substance without first abandoning its duty to enforce the law.”
To the extent that the movants are raising an APA challenge to the way the cannabis rescheduling proceedings are being conducted, or to final decisions made by the DEA, Johnson said they have once again “sought relief from the wrong forum.”
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