DEA Judge Cancels Marijuana Rescheduling Hearings Amid Legal Challenges, Pushing Back Reform For At Least Three Months

The first hearings on the Biden administration’s marijuana rescheduling proposal that were set for next week have now been canceled following a legal challenge from pro-reform witnesses, a Drug Enforcement Administration (DEA) 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 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 next week.

Central to the movants’ motion to remove 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 relegate DEA in 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, or NPRM] it purportedly supports as the proponent, carries no small measure of discomfiture,” he said. “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].”

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.

This story is developing and will be updated.

Read the DEA judge’s order on the marijuana rescheduling hearing below:

Marijuana Rescheduling Order-ALJ by KyleJaeger on Scribd