Pro-marijuana rescheduling doctors ask court to intervene, force DEA redo

Dissatisfied with what they claim is an opaque and biased process that violates federal law, a group of pro-marijuana rescheduling doctors and researchers is asking a federal court to intervene and compel the U.S. Drug Enforcement Administration to redo key steps in the process.

The petition – filed Monday in the U.S. Court of Appeals for the D.C. Circuit by the Doctors for Drug Policy Reform (DDPR) – represents what might be the strongest effort yet to wrest some control of the still-paused rescheduling saga away from the DEA.

Regardless of the petition’s outcome, the DEA still would wield overall control of the process.

And the agency has shown no signs it might resume the proceedings.

Doctors among those left out of rescheduling process

Led by Dr. Bryon Adinoff, a clinical researcher and professor of psychiatry at the University of Colorado School of Medicine, the DDPR was one of 138 parties denied permission by the DEA to participate in an administrative law judge’s hearing about marijuana’s status under federal law.

Last spring, the Justice Department under then-President Joe Biden overruled the DEA and proposed moving marijuana from Schedule 1 to Schedule 3 of the Controlled Substances Act.

However, former DEA Administrator Anne Milgram ruled last August that no changes would be made without a hearing before an administrative law judge and, thus, not until after the general election, which Biden lost.

Those hearings, initially scheduled to begin Jan. 21, were put on indefinite hiatus earlier in the month pending an appeal to DEA leadership – a process over which the agency is acknowledged to hold total sway.

Despite hopes from some in the cannabis industry that the Trump administration would take a sympathetic view of marijuana reform, there are no outward signs of a resumption in the process.

Nor have Trump’s choices to lead the Justice Department or the DEA inspired confidence.

Courts seen as avenue to address rescheduling

That leaves the courts as a potential source of redress.

As the DDPR’s petition notes, federal law “authorizes courts to overturn agency action that is arbitrary, capricious, or otherwise contrary to law.”

“Never in the history of the Controlled Substances Act has the public interest and the need for robust process weighed so heavily,” the petition continues, in part.

But rather than allow for transparency or widespread public involvement, the petition notes, the DEA “has failed to treat this momentous rulemaking with the gravity demanded by the circumstances and the law” when “it made at least two decisions of great public importance without giving any reasons.”

“The Agency’s secrecy prevents the Court from reviewing whether the decision is based on relevant and permissible criteria, and whether the Agency considered reasonable alternatives.”

Specifically, the petition claims, the DEA:

• Limited the list of “designated participants” to 25 without any reasoning.
• Rejected requests to participate, including from the governors of states such as Colorado and New York, without explanation.
• Irrationally determined that rejected participants were “not interested persons.”

“For these reasons, the Court should vacate the Agency’s selection of participants and rejection of Petitioners and remand with instructions to redo the participant selection process.”

The DEA has yet to respond to the DDPR’s petition, which the group made in a case originally filed in November after its participation was rejected, according to a court docket.

Chris Roberts can be reached at chris.roberts@mjbizdaily.com.