The Drug Enforcement Administration (DEA) responded to a slew of allegations on Nov. 25, including that it engaged in illegal communications and conspired with a prohibitionist group ahead of a cannabis rescheduling hearing that is set to begin next week.
A pair of cannabis rescheduling advocates whom the DEA selected to be among the 25 designated participants for the hearing—cannabis company Village Farms International and veterans group Hemp for Victory—filed a joint motion on Nov. 18 making those claims, including:
DEA Administrator Anne Milgram unlawfully designated 25 participants for the hearing;
The DEA engaged in unlawful communications with a prohibitionist group, Smart Approaches to Marijuana (SAM), ahead of the hearing;
The DEA may not serve as the “proponent” of a cannabis rescheduling rule in the hearing since the agency itself did not propose the rule (the Department of Justice did); and
The DEA is compromised and should be barred from any further participation in the hearing process.
RELATED: Cannabis Rescheduling Advocates Say DEA Stacked Deck, Colluded With Prohibitionists
John J. Mulrooney is the DEA administrative law judge (ALJ) tasked with overseeing a fair and transparent hearing to help the DEA determine if it will go along with the DOJ’s proposed rule to reclassify cannabis from a Schedule I to Schedule III drug under the Controlled Substances Act (CSA). However, the rescheduling advocates (the “movants”) claim the DEA manipulated the process by favoring prohibitionists.
Mulrooney issued a pair of orders last week that authorized the DEA and SAM to respond to the motion, but only if either party wanted to do so. He provided them with a deadline—2 p.m. ET on Nov. 25. The DEA dove headfirst with that opportunity.
“The movants would have this tribunal embark on a fishing expedition in search of evidence to support these sweeping, unsupported claims, which at best can be categorized as gossip, not ex parte communications,” DEA Deputy Section Chief James J. Schwartz wrote in the agency’s Nov. 25 response. Schwartz is the lead in the DEA’s Office of Chief Counsel.
Cannabis rescheduling advocates don’t see it that way. They’ve called into question the DEA’s unwillingness to provide a complete list of those who requested to participate in the hearing, the positions and expertise of those requestors, and why the agency denied certain requests over others. Furthermore, they’ve queried SAM’s in-the-know position.
Specifically, Shane Pennington, a partner in the litigation department at Porter Wright Morris & Arthur LLP, authored the 57-page joint motion on behalf of Village Farms, providing examples of SAM President and CEO Kevin Sabet “bragging” on social media that he knew about certain inner workings of the DEA’s position on a cannabis rescheduling recommendation before the public knew.
“BIG: I can now say with full confidence that the Administrator of the DEA, Anne Milgram, did NOT sign the rescheduling order, breaking with five decades of precedent and established law and regulations (two confidential sources inside DEA and another outside DEA with intimate knowledge tell me),” Sabet wrote May 6 on X.
That social media post came 10 days before Attorney General Merrick Garland signed the notice of proposed rulemaking (NPRM) to reclassify cannabis to Schedule III, falling in line with the recommendation made by the U.S. Department of Health and Human Services (HHS) and the Food and Drug Administration following a scientific review.
This means Sabet correctly predicted Milgram’s signature absence on a document historically signed by someone in her position at the DEA. When The Associated Press broke the news on May 20 that Milgram didn’t sign the NPRM, Sabet attributed his crystal ball to having “friends in low places.”
However, in Monday’s response from the DEA, Schwartz said this evidence fails to demonstrate that any unlawful ex parte communications took place.
“The posts cited by movants do not claim communication from or with anyone ‘who is or may reasonably expected to be involved in the decisional process of the proceeding,’” Schwartz wrote, pointing to the Administrative Procedures Act (APA).
In other words, the DEA response is that Sabet and other prohibitionists can talk freely with DEA officials and don’t have to disclose those conversations as long as the DEA officials aren’t directly involved in the public decision-making process of the rescheduling proceedings.
Schwartz also said that Sabet’s alleged communications with DEA officials only dealt with the NPRM, information that is not “relevant to the merits of the proceeding.” Therefore, since the particular communications in question weren’t specifically about the yet-to-be-granted hearing, they do not matter in the eyes of the DEA.
But this point—whether or not the DEA’s opposition to the HHS Schedule III recommendation matters in the grand scheme of a hearing process—could be argued in federal court. Last week, Pennington told Cannabis Business Times that he filed the joint motion, in part, with judicial review in mind.
Finally, Schwartz said the joint motion offered no evidence that the DEA counsel engaged in any ex parte communications about the hearing proceedings.
In other words, the cannabis rescheduling advocates’ smoking gun is meaningless without knowing which bullet left the chamber. And the DEA doesn’t appear poised to disclose details of the alleged communications between Sabet and its agency members, especially since the DEA’s counsel claims it wasn’t involved.
“As an initial matter, undersigned counsel unequivocally denies any and all allegations of ex parte communications,” Schwartz wrote. “DEA counsel of record have not engaged in any ex parte communications with any interested person about the merits of the present proceeding.”
Addressing the rescheduling advocates’ request to remove the DEA as the “proponent” of the proposed rule for the hearing process, Schwartz said that Mulrooney, as the ALJ, does not have the authority to do so. Mulrooney addressed this very point—that his hands are tied in the matter—last week.
Schwartz said Mulrooney was correct in calling into question this request.
“The movants fail to identify any precedent that would support removing an agency from its own rulemaking process,” Schwartz wrote. “To the extent that the movants are challenging the decisions of the DEA administrator, they either lack standing to do so or have asserted their claims in the wrong forum.”
Schwartz indicated that the correct forum would be the federal court.
H/T: www.cannabisbusinesstimes.com
