DEA Judge Stays Marijuana Scheduling Proceedings

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 Administrator. In-person testimony in the rescheduling hearing was scheduled to begin on Tuesday, January 21st.

The judge issued his order following allegations that the DEA had engaged in a series of 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 had 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, set to begin next week, during which time 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 leaving her post imminently and President elect Trump has yet to name her replacement.

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.”

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 cannabis federal 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 it 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.