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DEA Administrative Law Judge John Mulrooney has stayed further proceedings in the matter of marijuana’s federal classification under the US Controlled Substances Act, pending a resolution of an interlocutory appeal to the DEA’s Administrator. In-person testimony in the rescheduling hearing was scheduled to begin on Tuesday, January 21st.
The judge issued his order following receipt of significant evidence supporting allegations that the DEA had engaged in inappropriate and biased acts that warranted their disqualification from the proceedings. These included allegations that the agency had conspired with opponents of the proposed rule change and that it was openly hostile to reclassifying cannabis from Schedule I to Schedule III, as has been recommended by the US Department of Health and Human Services.
Although the judge disagreed that the agency’s conduct, even if substantiated, “would effect the fairness of the adjudication of the proposed rule,” he nonetheless granted petitioners’ request for an interlocutory appeal. He opined, “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 DPs (designated participants) and the Government by injecting appellate certainty into the equation at this stage of proceedings.”
The judges’s decision cancels the previously scheduled hearing dates, during which proponents and opponents of marijuana rescheduling were to testify and face cross-examination. It now remains unknown when such a hearing will occur, as the interlocutory appeal “returns jurisdiction of the matter to the full control of the DEA Agency leadership.” Further adding to the uncertainty, the Agency’s current Administrator Anne Milgram is likely to be vacating her post imminently, leaving this matter to the Justice Department and President-elect Trump’s yet to be named DEA Administrator.
Judge Mulrooney concluded his ruling by ordering “Movants and the Government [to] provide this tribunal with a joint status update [within] 90 days from the issuance of this order, and every 90 days thereafter.”
In response to the ruling, Michael DeGiglio, president and CEO Village Farms — one of the movants in the case — commented: “We view the outcome of this past week’s proceedings as an imperative step in this administrative process, and a symbolic victory against a conflicted government agency which we believe has no current intention of recommending that cannabis be transferred to a Schedule III designation. We were given a voice in these proceedings through our selection as the only cannabis operator participant, and we intend to do everything we can to use that voice to fight for a fair and honest process with a successful outcome, and to help right the wrongdoings of decades of government corruption, bureaucracy, and the failed War on Drugs.”
Movants have 15 days from the issuance of Judge Mulrooney’s order to file their appeal.
The Biden Administration initiated the regulatory process to review federal cannabis scheduling in late 2022 — marking the fifth time that such an administrative petition to remove cannabis from Schedule I had been filed, but the first time that such an effort had ever been led by the White House.
In its public comments provided to the DEA in July, NORML concurred with views expressed by the Department of Health and Human Services (HHS) that cannabis “has a currently accepted medical use” and that its relatively low abuse potential is inconsistent with the criteria required for substances in either Schedule I or Schedule II.
