A DEA administrative law judge has canceled a hearing on a proposal to reclassify cannabis under … [+]
A Drug Enforcement Administration judge has cancelled a hearing to consider the Biden administration’s proposal to reclassify marijuana under federal drug laws amid allegations that officials at the agency have conferred with witnesses opposed to the plan. Administrative Law Judge John Mulrooney canceled the hearing that was set for January 21, extending the process to ease restrictions on cannabis for at least three months, online weed news source Marijuana Moment reported on Monday afternoon.
The DEA hearing was scheduled to evaluate a proposal from the Department of Health and Human Services to change the classification of marijuana under the CSA from Schedule I, the strictest category, to Schedule III. Such a move would be significant for the state-legal cannabis industry, which would no longer be denied standard business tax deductions and would gain easier access to banking services.
On Monday, Mulrooney ruled on a motion from cannabis policy reform advocates who were scheduled to testify as witnesses at the now-canceled hearing. In the motion, the witnesses alleged that the DEA had made improper communications with groups opposed to proposed rule change to reschedule cannabis and that DEA Administrator Anne Milgram had improperly selected witnesses for the hearing. Although he denied a request to remove the agency from the proceedings, Mulrooney granted a request for leave to file an interlocutory appeal, canceling next week’s hearing and staying the process for at least three months.
In his ruling on Monday, Mulrooney noted a “disturbing and embarrassing revelation” about claims of communications between DEA officials and groups opposed to marijuana policy reform. However, he said that even if the allegations are true, they do not amount to an “irrevocable taint” that would affect the outcome of the rescheduling process. As a result, the administrative law judge ruled that he did not have the authority to remove the DEA from the hearings as a proponent of the proposed rule change.
“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.”
Mulrooney also criticized the DEA for its actions, writing that “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].”
Mulrooney ordered the DEA or the movants to submit an update on the interlocutory appeal in 90 days. He also ordered additional updates on the appeal process be submitted every 90 days until the appeal is settled.
Prior to cancelling next week’s hearing, Mulrooney admonished the DEA for its “unprecedented and astonishing” failure to follow his instructions on submitting evidence for the proceedings. On several occasions, he had informed both the agency and potential witnesses that they should submit hard copies of all evidence they wanted considered in the hearing by January 3. He also rejected a DEA request for an exception to the rule.
Despite the judge’s directions, the DEA moved to submit thousands of public comments on the proposal to reschedule marijuana digitally via compact discs. Mulrooney rejected the motion in a ruling on Monday, citing his “clear (and repeated) directives.”
“The Government has not supplied the tribunal with a hard copy of the lengthy proposed exhibit… which it represents as containing the Comments,” Mulrooney said, according to a report from Marijuana Moment. “In view of the fact that Government’s request for leave for an exception to the rules applicable to the rest of the Designated Participants was specifically denied, this action is clearly not a mistake borne of misunderstanding or inadvertence, but an action taken in deliberate defiance of specific direction.”
“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,” the judge added.
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