Judge Calls DEA Subpoena Request ‘Blunder,’ Rejects 3 of 4 for Cannabis Rescheduling Hearing

Administrative Law Judge John Mulrooney points out the DEA’s error yet provides the agency another shot at subpoenaing three FDA officials.

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DEA's Subpoena Error Delays Cannabis Rescheduling Hearing

The Drug Enforcement Administration (DEA) has encountered a significant setback in its efforts to prepare for an administrative law hearing on cannabis rescheduling. A clerical error in its subpoena requests for FDA witnesses has led to public embarrassment, though the agency has been granted an opportunity to correct its mistake.

Key Developments

• Clerical Error in Subpoena Requests

  
  

  • The DEA intended to subpoena four FDA officials as witnesses for the hearing scheduled between January 21 and March 6, 2025.

  • Instead, Deputy Section Chief James J. Schwartz mistakenly listed the same FDA official on all four subpoena requests.

  • Administrative Law Judge (ALJ) John J. Mulrooney rejected three of the four requests due to this error, describing it as "an error borne of inattention or inadvertence."

    
    

• Corrective Action Allowed

  
  

  • Judge Mulrooney granted one subpoena for Dr. Patrizia Cavazzoni, M.D., a psychiatrist and expert in neuropsychopharmacology.

  • The DEA was given until December 20, 2024, to resubmit corrected subpoenas for the remaining witnesses:

    
    

    • Dr. Douglas C. Throckmorton, M.D.

    • Dr. Marta Sokolowska, Ph.D.

    • Dr. Dominic Chiapperino, Ph.D.

      
      

  • The corrected subpoenas were submitted on December 17, 2024, and approved within hours.

    
    

Hearing Context

• Cannabis Rescheduling Proposal

  
  

  • The hearing focuses on the DEA's consideration of a recommendation by the FDA and the Department of Health and Human Services (HHS) to reschedule cannabis from Schedule I to Schedule III under the Controlled Substances Act.

  • The FDA and HHS conducted a scientific and medical evaluation, finding that cannabis has a “currently accepted medical use.”

  • DEA Administrator Anne Milgram is tasked with deciding whether to adopt this recommendation.

    
    

• Hearing Purpose and Procedure

  
  

  • The DEA will present first on January 21, 2025, as the "proponent" of the proposed rescheduling rule.

  • The hearing will evaluate the scientific and medical findings before the ALJ issues a nonbinding recommendation to the DEA for final action.

    
    

Implications of the Error

• The DEA's clerical oversight has drawn public scrutiny due to the high-profile nature of the case and inter-agency dynamics.

• ALJ Mulrooney’s order reflects a balance between enforcing procedural compliance and allowing the DEA to correct its mistake.

  
  

Next Steps

1. The DEA has until January 3, 2025, to request a stay if it needs to enforce subpoenas through federal court.

2. The hearing will proceed as scheduled, with the DEA presenting its case starting January 21, 2025.

   
   

This hearing marks a pivotal moment in federal cannabis policy, as the DEA evaluates the merits of the Schedule III recommendation and its implications for the Controlled Substances Act.