A former Drug Enforcement Administration (DEA) officer is taking the agency to federal court after being fired for testing positive for THC that he attributes to legal hemp-derived CBD oil he took for pain relief.
After 15 years as a special agent at DEA, Anthony Armour was terminated in 2019 following a random drug screening that showed a positive result for a THC metabolite. He promptly notified the agency that he believed the result was related to CBD oil that he’d been using as an opioid alternative after hemp and its derivatives were federally legalized under the 2018 Farm Bill.
The agent also voluntarily gave DEA the products he was using, and laboratory analyses showed that two of three contained less than 0.3 percent THC by dry weight, meeting the federal definition of legal hemp. A third product tested at 0.35 percent THC, which is still within the +/- 0.08 percent scientific margin of uncertainty.
Nonetheless, despite Armour’s record as an exemplary employee who worked on opioid trafficking diversion efforts, his complaint says, DEA declined to make any accommodations and maintained the charge of suspicion of use and possession of an illegal controlled substance.
The lawsuit is now before the U.S. Court of Appeals for the Federal Circuit, where Armour is seeking a reversal of the charge and reinstatement at DEA.
In a filing submitted on Friday, attorneys for the former agent said there are three main reasons why the court should support their request: 1) there’s “no substantial evidence” that Armour used or possessed an illegal drug; 2) there’s “no nexus between Armour’s conduct” (i.e. using CBD oil) and DEA’s enforcement mission; and 3) “the penalty of removal is not reasonably tolerable” in light of mitigating factors.
In a statement of facts, attorneys explained how the agent spent his tenure on the “frontlines of this country’s fight against the opioid epidemic,” making him acutely aware of the dangers of opioids. After a career in football and law enforcement, he sustained various injuries that caused severe pain, and conventional therapies did not effectively treat his conditions.
It was only after hemp and its derivatives like CBD were federally legalized that Armour, like countless other Americans, tried the non-intoxicating cannabinoid.
“For Armour and many others in this country, this change meant new opportunities—particularly as to CBD, a non-THC cannabinoid in the cannabis plant,” the filing says. “Armour hoped CBD oils could play a role in his pain management. That he did is unsurprising. From Martha Stewart to Wrigley Field, CBD has become embedded in American culture.”
At the time that he initiated CBD use, “DEA had no memos, regulations, directives, or guidance related to or concerning employee use of CBD products or the risk of testing positive for marijuana.”
In fact, it was during the agency’s investigation into Armour that DEA first released guidelines that cautioned employees about the risks of taking CBD products and unwittingly consuming enough THC to test positive for an illegal substance, the complaint says.
“None of this guidance existed when Armour had used the CBD products he purchased,” attorneys said. “The same day DEA amended its Personnel Manual, DEA proposed Armour’s removal based solely on a charge of use/possession of drugs.”
“Armour was wrongfully terminated. Armour did not intentionally or knowingly use illegal drugs. He purchased and used what he knew to be legal CBD oils. There is no substantial evidence that Armour used or possessed illegal marijuana. Instead, the evidence shows Armour used legal CBD products which caused a positive urinalysis for THC. Even if taking CBD products was somehow misconduct at the time—and it was not—there is simply no nexus between that act and DEA’s mission to enforce the country’s drug laws.”
Additionally, DEA’s deciding officer who ultimately determined that the agent’s conduct warranted termination also “arbitrarily” cut the standard margin of error of 0.08 percent THC in half when making its assessment, placing the CBD product that tested at 0.35 percent THC just beyond that margin.
“Armour expressed remorse, proactively provided pertinent information to investigators, and fully cooperated with the investigation. His attempt to show his innocence by pointing out that he used legal CBD products is no basis to find Armour incapable of showing remorse,” the filing continues. “At best, he displayed negligence or poor decision-making, not that he intentionally used marijuana. Nor was he on clear notice that use of CBD products could lead to a use/possession of marijuana charge.”
“For whatever reason, DEA saw fit to fire a dedicated Special Agent devoted to curbing the unlawful diversion of opioids and other controlled substances because he had purchased and used an openly advertised and sold CBD product to treat pain,” it concluded. “That penalty is not only seriously misguided as a matter of policy but is unsupported by substantial evidence and hopelessly flawed as a matter of law.”
While DEA has since made clear that its agents aren’t allowed to use CBD because of the risks of mislabeling and accidental THC exposure, it did amend its policy for job applicants in 2021, updating a questionnaire to only ask about hemp and cannabidiol use prior to the crop’s federal legalization in December 2018.
DEA is also actively preparing for broader rulemaking on cannabis post-hemp legalization, with an official saying earlier this month that the agency will be clarifying that synthetic cannabinoids are considered illegal controlled substances, while separately moving to decontrol synthetic CBD with up to 0.1 percent THC.
The legalization of hemp has led numerous federal agencies to update cannabis-related employment policies in recent years.
For example, Customs and Border Protection (CBP) recently told workers to just “say no to CBD,” warning that such products remain unregulated and may contain concentrations of THC that could show up in a drug test.
The U.S. Forest Service (USFS) human resources division posted a notice last year that similarly warned employees about the risks of consuming federally unregulated CBD products.
Shortly after hemp was legalized, NASA also sent a memo to its workers cautioning that consuming products containing CBD puts them at risk of losing their jobs.
Meanwhile, other federal agencies are also revising drug testing and employment policies, both for workers and applicants, amid the state-level legalization movement.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) recently updated its employment policy to make it so applicants who’ve grown, manufactured or sold marijuana in compliance with state laws while serving in a “position of public responsibility” will no longer be automatically disqualified—whereas those who did so in violation of state cannabis policies won’t be considered.
The Secret Service also recently relaxed restrictions on prior marijuana use by prospective agents.
Late last year, draft documents obtained by Marijuana Moment showed that the federal Office of Personnel Management (OPM) was proposing to replace a series of job application forms for prospective workers in a way that would treat past cannabis use much more leniently than under current policy.
The Biden administration instituted a policy in 2021 authorizing waivers to be granted to certain workers who admit to prior marijuana use, but certain lawmakers have pushed for additional reform.
For example, Rep. Jamie Raskin (D-MD) said at a congressional hearing on marijuana legalization last year that he intended to file a bill aimed at protecting federal workers from being denied security clearances over marijuana.
Last year, the nation’s largest union representing federal employees adopted a resolution in support of marijuana legalization and calling for an end to policies that penalize federal workers who use cannabis responsibly while they’re off the clock in states where it is legal.
The director of national intelligence (DNI) said in 2021 that federal employers shouldn’t outright reject security clearance applicants over past use and should use discretion when it comes to those with cannabis investments in their stock portfolios.
FBI also updated its hiring policies that year to make it so candidates are only automatically disqualified from joining the agency if they admit to having used marijuana within one year of applying. Previously, prospective employees of the agency could not have used cannabis within the past three years.
The Environment Protection Agency (EPA) also emphasized to its workers that they are prohibited from using marijuana—or directly investing in the industry—no matter the state law or changes in “social norms” around cannabis.
While the Biden administration did institute a waiver policy meant to provide discretion as it relates to federal employment and past cannabis use, it’s come under fire from advocates following early reports that the White House fired or otherwise punished dozens of staffers who were honest about their history with marijuana.
Then-White House Press Secretary Jen Psaki attempted to minimize the fallout, without much success, and her office released a statement in 2021 stipulating that nobody was fired for “marijuana usage from years ago,” nor has anyone been terminated “due to casual or infrequent use during the prior 12 months.”
Meanwhile, the U.S. Department of Transportation (DOT) recently finalized a rule to amend its drug testing policy in a way that could have significant implications for truckers, commercial drivers, pilots and other federally regulated transit workers who use marijuana off the job.
Read the federal appeals court filing on DEA’s firing of an agent over cannabis below: