The Drug Enforcement Administration’s lead counsel appeared to sidestep the very first question an administrative law judge (ALJ) asked him about his support for cannabis rescheduling during preliminary proceedings held on Dec. 2 in Arlington, Va.
Monday’s proceedings served as a procedural day for DEA Chief ALJ John J. Mulrooney to address legal and logistical issues ahead of an upcoming hearing on the merits of rescheduling. Witness testimonies are likely to begin the week of Jan. 13.
The DEA is serving as the “proponent” of a proposed rule that it did not propose—the Department of Justice did via Attorney General Merrick Garland signing a notice of proposed rulemaking (NPRM) to reclassify cannabis from a Schedule I to Schedule III drug under the Controlled Substances Act (CSA). As the “proponent,” the DEA bears the burden of proof to substantiate evidence supporting this reclassification.
While DEA Administrator Anne Milgram named Mulrooney in late August as the ALJ to preside over a fair and transparent hearing process, the judge still didn’t know the position of DEA Deputy Section Chief James J. Schwartz—the agency’s lead counsel—before the start of Monday’s proceedings.
“I’ll start with the hard question: What’s your position? Are you arguing in support of your agency’s rule?” Mulrooney asked Schwartz.
“We are the proponent of the rule, absolutely, yes, your honor,” Schwartz said.
“Great,” Mulrooney said.
Matthew Zorn, partner at Yetter Coleman LLP, who is representing three designated participants in favor of rescheduling cannabis, later called into question Schwartz’s answer.
“I think I have concerns about the government being the proponent of the rule, even just hearing today where your honor asked if they supported the rule, and their response was they’re the ‘proponent’ of the rule,” Zorn said. “Proponent just means they’re proposing the rule. It does not mean they’re supporting the rule, and I thought that question and answer was a little concerning for me. … I still don’t know if the government is supporting the rule.”
Zorn also called into question why the DEA’s counsel didn’t submit the ageny’s exhibits for the hearing while every other party participating in the hearing did so before Monday’s proceedings.
“The government is apparently still compiling the exhibits,” Zorn said. “They have more attorneys here than any other party, and I just think that they’re sandbagging us. I hate to put that on the record, but.”
Mulrooney cut him off.
“If you hate to put something on the record, Mr., Zorn, then don’t,” the judge said in perhaps the most contentious moment of the proceedings.
“The government is the proponent of the rule,” Mulrooney said. “The government also is representing the Drug Enforcement Administration. Now, there’s going to be a recommended decision from the head of the agency. Whoever that is at the time is going to be reading carefully all of the things that are put in front of that person and then going to make a decision based on several concerns; one of them is public safety.”
Mulrooney said he wasn’t bothered that the DEA hadn’t submitted its exhibit as the administrator, “making such an important decision,” wants to read everyone else’s first. He did give the DEA a Dec. 13 “homework” date to file its exhibits.
Furthermore, Mulrooney said if the DEA wants to change its mind about its position on cannabis in the middle of the hearing, then that’s fine by him.
“Let’s say the government decides in the middle of it that they don’t like this as a rule based on public safety and they do that based on what we do here: That doesn’t bother me a bit,” the judge said. “That’s part of the APA [Administrative Procedures Act]. … Half of the people in the room are not entitled to have the administrator be a cheerleader.
“What they’re entitled to expect, and what the American public can expect, is that I do my very best to make a decision that’s consistent with the evidence, whether people like it, or they don’t. But as far as this business with, ‘Who’s the proponent,’ and, ‘Who’s not a proponent,’ … I don’t want to hear it.”
Mulrooney said all he has to go on is what he has on the record, and what he has on the record is Schwartz telling him that, as the DEA’s lead counsel, he’s the proponent of the rule.
Later in the proceedings, Shane Pennington, a partner at Porter Wright Morris & Arthur LLP, who’s representing pro-rescheduling designated participant Village Farms International, questioned Mulrooney on what happens under the hypothetical that the DEA changes its position to oppose the proposed rule in the middle of the hearing process.
“I wanted to make sure that I understood your point there is that, look, they can change positions, they can make up their mind, they’re going to be a cheerleader for one side or the other,” Pennington said. “I guess my concern is that … the right of particular parties to cross-examine witnesses hinges on what side the witness is on.”
In other words, if the DEA pulls a 180-degree turn and decides to put forward evidence contrary to its current position as the proponent of the proposed rule, Pennington asked Mulrooney if the pro-rescheduling folks would then have access to cross-examination.
“You won’t,” Mulrooney said. “Because there’s no other way to do this. Anybody who’s on the pro-side gets to examine the anti-side, and the anti-side for the pro-side. It’s like anything else; I don’t know what the government’s case is going to be.”
The judge said he can’t have the proponents trying to outdo each other—even if the DEA switches its mind.
Furthermore, Mulrooney advised Pennington to “do the best job you can with what you have.”
Editor’s note: Cannabis Business Times Editor Tony Lange attended the preliminary proceedings in-person on Dec. 2 at the Drug Enforcement Administration’s courtroom in Arlington, Va.
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