Testimony on whether marijuana should be downgraded to a Schedule III controlled substance will begin on Jan. 21, according to an administrative law judge’s order Wednesday.
While the Drug Enforcement Administration’s lead attorney affirmed the agency is the “proponent” of the proposed rule, rescheduling supporters skeptical of the DEA’s position were told they could not cross-examine the DEA’s witnesses. Chief Administrative Law Judge John J. Mulrooney II, likewise, questioned the federal agency’s delay in filing documents and case strategy in his Dec. 4 order.
DEA Administrator Anne Milgram has selected 25 “designated participants,” representing both sides of the proposed rule, to provide evidence.
A preliminary hearing was held Dec. 2 to learn more about the participants’ positions and availability. Mulrooney kept a light-hearted, friendly demeanor while being firm as he set rules for the proceedings. At one point he quoted from the movie Mean Girls (“That’s not a thing.”), and he also said he would not be reading anybody’s book.
At the preliminary hearing, Mulrooney noted the significance of this proposal.
“These are kind of rare proceedings. It’s rulemaking. And it’s rulemaking where a lot of people have a big stake in this,” Mulrooney acknowledged. But in reading the papers that had been submitted to him so far, “I did get the sense in reading it that some among us have a sense that they want to back up a truck full of paper and dump it on me. Well, that is not the way it works.”
He set Dec. 13 as a “homework date” where parties, including the DEA, must submit certain information, including requests for subpoenas. An evidence filing deadline is Jan. 3.
“This is not a trial on whether marijuana is good or whether marijuana is bad,” Mulrooney later noted. On the contrary, his decision is more narrowly focused on “addiction potential and several other pigeon holes that I have.”
Following the ALJ hearing next year, Mulrooney will give an opinion on whether marijuana should be rescheduled from the most restrictive Schedule I to Schedule III. But the DEA administrator does not have to abide by that opinion. Importantly, this hearing will allow evidence to be placed on the record if the DEA’s ultimate decision — or more likely when, whatever the decision may be — is appealed to federal court.
Proponent or supporter?
This drug rescheduling is unprecedented in that DEA Administrator Anne Milgram did not sign the Notice for Proposed Rulemaking (NPRM) as DEA administrators have in the past. It was signed by Attorney General Merrick Garland.
“I’ll start with the hard question,” Mulrooney said to the DEA’s lead counsel James J. Schwartz at the Dec. 2 hearing. “What’s your position? Are you arguing in support of your agency’s rule?”
Schwartz responded, “We are the proponent of the rule. Absolutely.”
The DEA plans to call two witnesses, according to its prehearing statement. One will lay the foundation for more than 43,500 public comments received for the rule, which the judge noted are not evidence.
In his Dec. 4 prehearing ruling, Mulrooney cautioned the agency about submitting the comments as evidence and suggested it could be viewed as a delaying tactic.
“Admitting the Comments into a hearing record where they cannot be considered would indeed be a pointless exercise,” he wrote. “On a more pragmatic level, to attempt to foist a gargantuan mass of inadmissible comments on the tribunal risks the appearance (even if subjectively unwarranted) of a dilatory tactic inflicted on the trier of fact by the agency that represents itself as a proponent of the rule.”
The other DEA witness is a pharmacologist in the Drug and Chemical Evaluation Section of the DEA’s Diversion Control Diversion who will testify on the DEA’s own eight-factor analysis to decide scheduling of controlled substances, as well as studies and data she and others in the DEA review.
The Department of Health and Human Services applied its own eight-factor analysis in support of the rescheduling, which is included in the proposed rule. The DEA said in its prehearing statement that HHS declined to have its own witness at the hearing, but the DEA may subpoena someone. A spokesperson for the HHS did not respond to an email from CRB Monitor News requesting comment.
Matthew Zorn, representing Connecticut’s Cannabis Ombudsman Erin Gorman Kirk, the Massachusetts Cannabis Advisory Board Research Subcommittee Chair Ellen Brown and The Doc App (d.b.a. My Florida Green), took issue with Schwartz’s response to the judge.
“’Proponent’ means they are proposing the rule. It does not mean they’re supporting the rule. I’m still not sure they are supporting the rule,” Zorn said. Mentioning that the government hasn’t yet submitted their exhibits, “They have more attorneys here than any other party, and I think they’re just sandbagging us. I hate to put that on the record.”
“If you hate to put that on the record, Mr. Zorn, then don’t,” Mulrooney retorted. He then directed the DEA to submit their exhibits by the homework date.
Mulrooney also told Zorn that the DEA, as the proponent of the rule, can present their case as they see fit. And if the government half-way through decides to no longer support the rule, “That doesn’t bother me a bit,” he said.
Designated participants Hemp for Victory and Village Farms International Inc., filed a motion seeking to disqualify the DEA from the rulemaking process. Kevin Sabet, co-founder and CEO of prohibitionist group Smart Approaches to Marijuana (SAM) claimed in a text 10 days before the NPRM filing to have received insider knowledge from confidential sources within the DEA that Milgram would not sign it. SAM has been selected by Milgram to be a designated participant allowed to testify at the hearing.
In a Nov. 20 briefing order, Mulrooney said he does not have legal authority to replace the DEA.
“While deciding nothing at this juncture, that aspect of the Motion’s request that one of the Movants supplant the Agency as the proponent of the NPRM may arguably be vulnerable to a characterization of being unserious.” But he said he can tender recommendations to the administrator, “no matter what discomfiture those recommendations may inflict on the Agency or its Leadership.”
He further said the “alleged ex parte communications are serious” and gave the DEA the option to respond to the allegations. “In light of these allegations and any potential impact on participation eligibility,” SAM was also allowed to respond the next day. Both parties denied anything improper in their filings.
Zorn has filed a lawsuit in U.S. District Court against the DEA alleging it didn’t respond within the statutory 20 days to his Freedom of Information Request for any email communications between the DEA and SAM. He also requested a preliminary injunction.
Zorn told Mulrooney he may also request a stay of the proceedings. The judge said he appreciated the notice but reminded Zorn that it would delay the proceedings “until God knows when.”
He added, “Understand that when you go back to your seat after you get your stay, marijuana just stops” for as long as pending cases work their way through federal court.
Meanwhile, the group Doctors for Drug Policy Reform, which was not selected as a designated participant, has requested a stay, Marijuana Moment reported.
Supporters can’t cross-examine the DEA
Attorney Shane Pennington, representing rescheduling supporter Village Farms, asked if they would be able to cross-examine a DEA witness who “contradicts our view of the world.”
Mulrooney said no. Attorneys or representatives would be allowed to cross witnesses with an opposing position, but not on the same side.
“Do the best with what you have,” he said.
The hearing in Arlington, Va., is scheduled to last from Jan. 21 through March 6 with a break of a few days in February. The DEA would be the first to present testimony.
Every designated participant will get up to 90 minutes of testimony, and cross-examination will be up to 20 minutes. Consolidated parties can have only two witnesses for a total of 120 minutes.
Meanwhile, how the process will play out once President-Elect Donald Trump takes over in January remains to be seen, especially since his nominations for attorney general and DEA administrator are going through a revolving door.
