The first hearings on the Biden administration’s marijuana rescheduling proposal that were set for late January have now been canceled following a legal challenge from pro-reform witnesses, a Drug Enforcement Administration judge has ruled.
While DEA Administrative Law Judge (ALJ) John Mulrooney rejected key arguments from rescheduling proponents about how alleged improper communications and witness selection decisions by DEA Administrator Anne Milgram warranted the agency’s removal from the process altogether, he ultimately granted a request for leave to file an interlocutory appeal—canceling the scheduled January 21 merit-based hearing and staying the proceedings for at least three months.
And although Mulrooney cited statutory restrictions on his office’s ability to take actions such as removing the DEA as the “proponent” of the proposal to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA), he sharply criticized the agency over various procedural missteps that he argued contributed to a delay of the rulemaking, potentially indefinitely as a new administration is set to come into office January 20.
Central to the movants’ motion to remove the DEA are allegations that certain agency officials conspired with anti-rescheduling witnesses who were selected for the hearing. The judge didn’t outright deny those claims and, in fact, noted a “disturbing and embarrassing revelation” about such communications. However, he said even if those claims were substantiated, they wouldn’t on their own constitute an “‘irrevocable taint’” that will affect the ultimate outcome of the proceedings.” Therefore, he said, it wouldn’t affect his office’s authority to remove the agency from the hearings.
“I can no more remove or re-designate the Administrator than I can hold parties in contempt and fine them,” Mulrooney said. “The strangeness of this unsupported approach is amplified by the fact that the appointment of a new DEA Administrator by a different political party is imminent.”
On the same token, he said “the specter of officials at the highest level of Agency management selectively assisting and granting access to individuals and groups standing in opposition to the [Notice of Proposed Rulemaking] it purportedly supports as the proponent, carries no small measure of discomfiture. If true, viewed in the best light, these allegations demonstrate a puzzling and grotesque lack of understanding and poor judgment from high-level officials at a major federal agency with a wealth of prior experience with the [Administrative Procedures Act].”
Mulrooney suggested the leave to file an appeal could prevent an even more extensive delay in rulemaking.
Mulrooney also said it was ironic that the DEA “elected at the outset to narrow the scope of participants [of the hearing] within the strict parameters of the regulations (that is, to limit inclusion to only those adversely affected or aggrieved), without any of the unpalatable noise associated with the alleged ex parte communications, it is likely that such decision would have been easily sustained on review and the Movants would not have the voice they currently enjoy in these proceedings. Thus, the Administrator’s election to extend a participation invitation beyond the parameters of the regulation (a decision which is not subject to my review) could conceivably be viewed as an act of administrative grace aimed at an increased level of inclusivity, but hardly an irreversible one.”
While the ALJ’s order means the hearings are temporarily canceled—with lingering uncertainty over the fate of the rescheduling proposal as President-elect Donald Trump prepares to take office with a different DEA administrator helming the ship—he suggested the leave to file an appeal could prevent an even more extensive delay in rulemaking.
“Even factoring in the reality that sometimes litigants and their representatives should be mindful of what they wish for, to the extent my analysis is found to be in error on review, I am willing to certify that the allowance of this interlocutory appeal could potentially avoid exceptional delay, expense or prejudice to the [designate participants, or DPs] and the Government by injecting appellate certainty into the equation at this stage of proceedings,” he wrote. “Were my analysis to be reviewed on appeal and determined to constitute prejudicial error, a remand would clearly result in significant delay and expense to the Designated Participants and the process.”
The judge ordered either the government or the movants to provide the court with an update on the status of the interlocutory appeal in 90 days. To the extent the issues are not resolved, they must update the court every subsequent 90 days. The window to file an appeal is 15 days from the issuance of the order.
In the background of this significant order, Mulrooney on January 13 also condemned the DEA over its “unprecedented and astonishing” defiance of a key directive related to evidence it is seeking to use in the marijuana rescheduling proposal.
At issue is the DEA’s insistence on digitally submitting tens of thousands of public comments it received in response to the proposed rule to move cannabis to Schedule III.
“Even among the numerous extraordinary and puzzling actions taken thus far by the Government during the course of this litigation, this disobedience of an unequivocal directive from the tribunal is unprecedented and astonishing,” he said.
Mulrooney hasn’t been shy about calling out the DEA over various procedural missteps throughout this rescheduling process.
To that end, he rejected the evidentiary exhibit and further noted that, in light of the DEA’s “deliberate failure to comply with the unequivocal and repeated directive of the tribunal, the issue of sanction is herein reserved for a determination to be made at such time during the hearing on the merits that the proposed exhibit is offered into the record.”
Mulrooney hasn’t been shy about calling out the DEA over various procedural missteps throughout this rescheduling process.
For example, in December 2024 he criticized the agency for making a critical “blunder” in its effort to issue subpoenas to force Food and Drug Administration officials to testify in hearings—but he allowed the agency to fix the error and ultimately granted the request.
The DEA on January 13 had asked the ALJ to reject a request to have it removed from the marijuana rescheduling hearings over allegations it opposes the reform it is supposed to be defending during the proceedings—while still declining to clarify where it actually stands on the proposal.
That came in response to a motion filed by pro-rescheduling witnesses Village Farms International, Hemp for Victory, the Connecticut Office of the Cannabis Ombudsman, Ellen Brown and My Doc App, whose motion was central to the postponement of the initial hearings.
Part of the pro-rescheduling participants’ motion addressed a new declaration submitted to the ALJ by a DEA official earlier in January, wherein the agency pharmacologist seemed to question the basis of the reclassification proposal. It also alleged additional unlawful communication with an anti-rescheduling witness and questioned the agency’s rationale for selecting certain witnesses while denying others, including the state of Colorado.
The motion also alleged that there’s “additional damning evidence of ex parte and undisclosed communications has emerged,” with the DEA failing to disclose nearly 100 requests to participate in the upcoming hearings, as well as “communication and coordination with at least one anti-rescheduling [designated participant], the Tennessee Bureau of Investigation.”
The DEA pushed back against the claims, contending that there’s no basis to remove it from the proceedings.
The DEA pushed back against the claims, contending that information cited in the motion was available to the witnesses despite the suggestion that the evidence was new and reiterating that, as the ALJ previously asserted, there’s no basis to remove the agency from the proceedings.
The DEA judge rejected the cannabis groups’ earlier request to remove the agency as the proponent of the rescheduling rule, but he did seem to put weight into separate allegations that it engaged in unlawful communication with another DP, the prohibitionist group Smart Approaches to Marijuana.
Relatedly, a federal judge also recently dismissed a lawsuit seeking to compel DEA to turn over its communications with the anti-cannabis organization.
Meanwhile, Mulrooney recently denied a cannabis research company’s request to allow it to add a young medical marijuana patient and advocate as a witness in the upcoming rescheduling hearing.
Also, one of the nation’s leading marijuana industry associations asked the judge to clarify whether it will be afforded the opportunity to cross-examine DEA during the upcoming hearings on the cannabis rescheduling proposal.
Further, a coalition of health professionals that advocates for cannabis reform recently asked that the DEA judge halt future marijuana rescheduling hearings until a federal court is able to address a series of allegations they’re raising about the agency’s witness selection process.
That came on the same day the Mulrooney issued a ruling that laid out the timeline for merit-based hearings on the rescheduling proposal.
Doctors for Drug Policy Reform (D4DPR) requested that the DEA judge stay the hearings pending a review from the United States District Court for the District of Columbia Circuit. A separate organization that was also denied participation, Veterans Action Council, similarly filed a petition with the same court in December 2024 to request a review of the agency’s decision to exclude it from the proceedings.
The rescheduling proceedings have generated significant public interest. While moving marijuana to Schedule III wouldn’t federally legalize it, the reform would free up licensed cannabis businesses to take federal tax deductions and remove certain research barriers.
Image via Washington State Liquor and Cannabis Board
This story was originally published by Marijuana Moment, which tracks the politics and policy of cannabis and drugs. Follow Marijuana Moment on X and Facebook, and sign up for its newsletter.
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