An independent non-profit pro-marijuana reform doctors has filed an amicus brief in federal appels court arguing that new evidence shows the Drug Enforcement Administration conducted “arbitrary and capricious review” of witnesses for hearings related to cannabis rescheduling process that should now be redone.
The group alleges there is “substantial evidence” of procedural violations committed by DEA leadership during the witness selection process; such violations include unlawful ex parte communications between certain individuals opposed to the proposed rescheduling plan and certain individuals and parties with access to confidential DEA files, but unreported earlier by law enforcement authorities.
Doctors for Drug Policy Reform (D4DPR), filing their suit Monday with the U.S. Court of Appeals for the District of Columbia Circuit, was met by an indefinite postponement in DEA administrative hearings regarding Biden Administration-initiated plan to move cannabis from Schedule I to III under Controlled Substances Act (CSA).
At issue in this legal challenge is Anne Milgram’s selection of only 25 applicants out of over 160 who submitted proposals rescheduling proposal for public input on it.
Attorneys representing D4DPR – one of several groups denied designated participant status at hearings – contend there’s ample evidence that DEA’s ex parte communications were motivated by creating an evidentiary record which could allow it to reject marijuana rescheduling legislation proposed.
“The Agency provided no explanation as to why only 25 participants or particular applicants were selected,” according to the lawsuit. Its failure to give such an explanation justifies vacatur and remand with instructions for redoing these selections.
“[T]he circumstances surrounding the Agency’s rejection of Petitioners’ application provide further proof that its secret selection process had as its goal the creation of an evidentiary record sufficient for it to overrule proposed rules,” states the report.
DEA was intended to serve as the proponent for drug rescheduling rules; however, questions have arisen regarding its actual stance regarding them. One key reason behind these questions lies with Merrick Garland signing instead of Milgram the notice of proposed rulemaking; breaking with previous administrative practices on drug rescheduling decisions.
D4DPR alleges that new evidence has surfaced proving DEA’s witness selection process was biased, including “cure letters” sent exclusively to certain witnesses that supported anti-rescheduling proceedings.
DEA directed witnesses who want to participate to “enhance their requests by providing additional evidence proving they are interested persons and relevant evidence for presentation.” However, Petitioners or pro-rescheduling entities did not receive similar ‘cure letters’ before rejecting their applications for participation.
“Evidence indicates that by contrasting Petitioners’ comprehensive application with that of entities selected by the Agency, Petitioners were treated differently from similarly situated applicants,” according to their lawsuit.
“For these reasons, the Court should set aside the Agency’s selection and rejection of Petitioners before ordering that participant selection process to be repeated again”, states its statement.
Evidence of ex parte communications between the Agency and anti-rule applicants recently presented has added fuel to this fire. Documents produced by the Agency show that one Deputy Assistant Administrator within it followed up in private correspondence with twelve applicants seeking additional information about their status as aggrieved parties and relevant evidence, according to their brief.
“Of the twelve entities who received these so-called ‘cure letters,’ nine had strong objections to the proposed rule; two had unclear positions and only one supported it; for this last entity’s part it wasn’t immediately evident whether it supported or opposed its proposed regulation; it became evident only through their response supplement to the Agency’s cure letter that they preferred moving marijuana from schedule I to III”.
“DEA’s silence, facially arbitrary participant selection process and ex parte assistance almost exclusively directed toward rule change applicants is evidence that its actions had the impermissible purpose of producing evidence supporting rejection,” according to a filing by pro-rule applicants.
“Ex parte communications created an inherently unfair atmosphere which cannot be remedied simply with explanation,” according to the court order, which states: “Revisiting witness selection will not substantially delay rulemaking hearings that have been put on pause due to pro-rule participants filing interlocutory appeals against rulemakers.”
“This Court should vacate Agency Orders regarding participants selection and exclusion as per Petitioners, with instruction to redo selection process by Agency,” reads a complaint filed against it.
Before the ruling by DEA Administrative Law Judge John Mulrooney to postpone hearings rescheduling for months, D4DPR filed with the federal appeals court seeking an injunction on them; VAC filed petition with this same court seeking review of agency decision to exclude it from proceedings.
Agency judge explained this decision followed his denial of a motion seeking the exclusion of DEA from all proceedings concerning rescheduling due to allegations that its former administrator communicated ex parte with witnesses opposed to rescheduling, leading to ex parte communications that potentially “tainted” this process irreparably.
Last month, Mulrooney sharply criticized DEA’s disregard of an important directive related to evidence it wants to present against marijuana rescheduling proposals.
Rescheduling proceedings have garnered considerable public attention. Although moving marijuana to Schedule III wouldn’t legally legalise it, such reform would enable licensed cannabis businesses to claim federal tax deductions while clearing away research obstacles.
While watching this latest legal challenge closely, advocates and stakeholders are closely watching developments within the Trump administration related to cannabis policy decision-making – particularly recent nominations in high level positions that seem concerning to advocates and stakeholders.
President Donald Trump recently nominated an anti-marijuana official as the lead attorney at U.S. Department of Health and Human Services (HHS), much to the delight of cannabis prohibitionists.
Robert F. Kennedy Jr, recently confirmed by the Senate as HHS secretary, has previously spoken in favor of legalizing marijuana for medical purposes, though following his confirmation he expressed some reservations over normalizing high-potency strains of pot, fearing its use could have devastating impacts. Legalization at state-level could facilitate research on its risks and benefits.
Sen. Pete Ricketts of Nebraska said earlier today he received an assurance from Senator Kennedy to follow scientific evidence regarding marijuana-related harms.
Ricketts had previously revealed his conversation with Kennedy regarding “the importance” of stopping marijuana’s proliferation and now states: “RFK committed to me that he would follow scientific findings regarding marijuana’s harmfulness.”
Sen. Lankford filed legislation last week with Senator Feinstein’s support that seeks to keep marijuana businesses from taking federal tax deductions even when restructuring operations or changing business activities.
Even though Kennedy had long supported legalization of marijuana, in his new role he plans on deferring to the Drug Enforcement Agency’s (DEA).
As President Trump officially unveiled his nominee to lead DEA–an experienced Virginia official who has raised concerns over marijuana usage leading to increased suicide risk in teens–this may complicate efforts at rescheduling.
Rep. Andy Harris of Maryland recently told MEDCAN24 that it’s high time to have a conversation with Senator Kennedy to convince him of marijuana’s harmful nature and suggest ways of “limiting” its usage in order to promote health in Americans.
Before Senator Edward Kennedy provided written responses to members of the Senate Finance Committee that granted initial approval, Sen. Elizabeth Warren (D-MA) pressured him to emphasize his views regarding marijuana legalization amid ongoing efforts to federally reschedule cannabis.
Pence had formed a political action committee designed to undermine Kennedy’s confirmation as HHS secretary–in part by drawing attention to his advocacy for marijuana and psychedelic reform as well as personal experience with substance misuse.
Below you can read a lawsuit brought by doctors against the Drug Enforcement Agency regarding marijuana rescheduling process:
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