Politics
DEA Opposes Marijuana Rescheduling Opponents’ Request For New Testimony And Document Discovery In Ongoing Hearing
Drug Enforcement Administration (DEA) is opposing marijuana rescheduling opponents’ request to reopen an ongoing hearing on the Trump administration’s proposed reform for a new round of testimony and document discovery.
The dispute concerns a recently released federal watchdog report that found there are “gaps” in the government’s process for evaluating controlled substances.
DEA said in a brief filed earlier this month that it is fine with including the document in the hearing record, as opponents have pushed for, but it does not want any further briefings on the matter—nor, it said in a new brief filed on Tuesday, does the agency think DEA Chief Administrative Law Judge Derek Julius should further delay the proceedings by ordering additional testimony and discovery.
The agency’s latest filing argues that opponents are seeking permission for an “obvious fishing expedition based on a Report that is clear on its face” and that the Administrative Procedure Act (APA) does not provide for additional record supplementation and general discovery in the rulemaking proceeding now that testimony has closed.
“To supplement the record, the Movants must show that the agency deliberately or negligently excluded documents that may have been adverse to its decision, background information is needed to determine whether the agency considered all the relevant factors, or that the agency failed to explain its administrative action so as to frustrate judicial review,” DEA said, arguing that none of that has occurred.
Julius still hasn’t decided whether to admit the report in question, which was published last month by the Government Accountability Office (GAO). The watchdog agency’s review found, among other things that DEA “does not have any policies or procedures regarding how its staff are to conduct evaluations or schedule substances” and the Food and Drug Administration within the Department of Health and Human Services (HHS) “does not have policies or procedures specifying how its staff are to conduct evaluations or develop scheduling recommendations for substances.”
DEA said in its Tuesday brief that rescheduling opponents have not identified “other records with any specificity to supplement the Record.”
“The Report identifies the absence of policy and procedure records, not the presence of those materials,” the agency pointed out.
“While Movants reference their discovery requests as ‘limited’ and ‘narrowly tailored,’ these requests are neither limited nor narrow,” the filing said. “Instead, Movants seek broad categories of materials and testimony related to issues the parties addressed repeatedly at the hearing and an additional request for GAO’s materials for all scheduling matters in the prior six years from every entity GAO sought said information from, and the content of every GAO request for information.”
DEA said the information in the requests has largely already been entered into the hearing record through previously delivered testimony.
“Movants argue that their disagreement with the Government’s interpretation creates a material issue of fact that this Court must resolve by allowing Movants to engage in broad, general written discovery, witness depositions, and further briefing to the Tribunal during a stay implemented until they have concluded their discovery process. This is an obvious fishing expedition based on a Report that is clear on its face… Movants’ reliance on this Report as the basis for their general discovery requests is misplaced. The parties’ disagreement about the Report’s findings and its impact on FDA’s scheduling recommendation do not create a material issue of fact.”
Also on Wednesday, the National Drug & Alcohol Screening Association (NDASA), DUID Victim Voices and Kenneth Finn requested and received from Julius permission to file a response to DEA’s latest submission.
“The Government admits the GAO Report documents ‘the absence of policy and procedure records,'” the rescheduling opponents said. “That absence is the finding… The Government cannot concede that no standard existed and then call the missing standard immaterial.”
DEA’s previously filed brief argued that it defers to the judge on whether the GAO report should be included in the record, but it opposes opponents’ request for additional briefings to be ordered concerning what the report’s findings mean for cannabis rescheduling.
Those opponents have “mischaracterized the GAO Report and its impact” on the marijuana rescheduling process, the agency said, adding that it “does not present any new evidence salient to the issue before this Tribunal.”
DEA said, however, that the GAO report merely identified “gaps in the memorialization of rescheduling process, not any flaws in the rescheduling process itself.”
Until recently, the only expected remaining step in the proceedings had been for Julius to issue his own recommendation on marijuana rescheduling to the DEA administrator, who would then make a final determination on the policy.
NDASA, DUID and Finn filed a motion last week asking the DEA judge to order a “narrow reopening of the hearing for limited discovery and testimony tied to the Report, the agency-process gaps it identified, and why those gaps matter to marijuana rescheduling.”
They are requesting authority to “serve narrowly tailored document requests and to seek testimony limited to” certain specific subjects.
“The requested discovery is necessary and proportionate. It targets the process facts GAO identified, the factual disputes the Government created in its response, and the issues the Government restricted during the hearing,” the motion says. “It does not seek a broad reopening, a new merits case, or duplicative testimony already taken. Limited discovery is therefore proportional to the issues the Report and the Government’s response have placed before the tribunal.”
It remains to be seen whether Julius will order additional briefings on the GAO report and whether he will take the more far-reaching step of reopening testimony and discovery.
Attorney General Todd Blanche in April issued an order that immediately reclassified state-licensed medical cannabis, as well as marijuana products approved by the Food and Drug Administration (FDA) from Schedule I of the Controlled Substances Act (CSA) to Schedule III.
Under a separate order he signed, the DEA hearing was held in June and July to consider more comprehensively moving marijuana to Schedule III.
“The Government is not putting forth any evidence to suggest that marijuana is not dangerous. All controlled substances by definition are dangerous,” James Schwartz, a DEA attorney, said on the opening day of the hearing, according to the transcript. “That is why they are scheduled in the first place. However, controlled substances must be evaluated by the risks they pose balanced with the medical use they provide.”
“The proposed rule, the supporting documents, and the Government witnesses will establish that marijuana has a currently accepted medical use,” he said. “With that determination, marijuana can no longer remain in Schedule I.”
The federal agency, which was charged with defending the proposed rescheduling move, said in its brief that “marijuana no longer fits the statutory requirements for Schedule I because it has a currently accepted medical use within the United States and it has an accepted safety for its use under medical supervision.”
The agency noted that under the law it must give “significant deference” to an “extensive ten-month study on the scientific and medical properties” of cannabis conducted by the Department of Health and Human Services (HHS), which recommended rescheduling.
“Currently there are over 30,000 practitioners treating more than six million patients in 43 U.S. jurisdictions,” DEA said. “Such practices demonstrate that there is no longer a lack of accepted safety for use of marijuana under medical supervision, and as such, marijuana does not fulfill the requirements of being a Schedule I substance.”
It also said that there is “substantial evidence sufficient to show that marijuana’s abuse and dependency profiles better align with Schedule III substances than Schedule II” or Schedule I. “The vast majority of individuals who use marijuana do so in a manner that does not result in dangers to themselves or to their communities.”
In conclusion, DEA asked the judge overseeing the hearing to “expeditiously recommend” that marijuana be transferred from Schedule I to Schedule III.
During the hearing, DEA officials charged with defending the cannabis rescheduling proposal highlighted testimony on marijuana’s medical benefits and its relative safety compared to other substances such as alcohol and opioids. That included appearances from a Food and Drug Administration (FDA) scientist and a medical doctor from New Hampshire who detailed how medical marijuana provides relief to pain patients and can serve as an alternative to opioids.
Meanwhile, lawyers and witnesses for parties who are oppose marijuana rescheduling and participated in the hearing put significant focus on the alleged harms of cannabis use as well as criticism of recently adopted changes to an analysis used to determine whether drugs have accepted medical value.
DEA invited only organizations and people who oppose marijuana reform to join the hearing as designated participants—telling supporters that they do not meet the definition of an “interested person” to participate because they are not “adversely affected or aggrieved by any rule or proposed rule issuable.”
Ahead of the hearing’s start, marijuana reform activists held a press conference outside DEA headquarters to highlight how they feel the have been “shut out” of the process—criticizing the fact that no supporters of reform were invited to participate and that the proceedings were not livestreamed despite officials’ vows of “transparency.”
Marijuana Moment sent requests to Julius, the DEA judge, and to Cole, the DEA administrator, requesting they reverse a decision to prohibit the public from tuning into the cannabis hearing via livestream. A congressman and other journalists later joined in that request.
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A prior hearing process on the marijuana rescheduling process that was initiated by the Biden administration stalled last year amid litigation over alleged improper communications and witness selection.
The current marijuana rescheduling process is being challenged with several lawsuits that have been consolidated by a federal appeals court. Those pieces of litigation against the cannabis reform have been filed by state attorneys general, marijuana legalization opponents and a cannabis-focused biopharmaceutical corporation.
The U.S. Court of Appeals for the District of Columbia Circuit recently rejected a drug testing industry association and a pharmaceutical company’s request to block the Trump administration from moving forward with cannabis rescheduling while the litigation is considered. The parties have jointly filed a proposed briefing schedule for the legal dispute.
A congressional committee recently voted to block federal officials from taking further steps to carry out cannabis rescheduling, though bipartisan lawmakers told Marijuana Moment they don’t believe that provision will be enacted into law.
Read the latest filings and order in marijuana rescheduling hearing below:
Photo courtesy of Philip Steffan.
