A Drug Enforcement Administration (DEA) judge has rejected a request to reopen the federal marijuana rescheduling hearing for additional testimony and evidence, while allowing new written arguments concerning a recently released government report on the federal drug scheduling process.
In an October 22 order, Chief Administrative Law Judge Derek Julius ruled that opponents of rescheduling had already been given sufficient opportunities to examine the issues they now want to revisit. He also agreed to admit a September report from the U.S. Government Accountability Office (GAO) into the administrative record, establishing new deadlines of October 29 for supplemental briefs and November 5 for responses.
The decision comes after weeks of competing filings over whether the GAO report, which identified gaps in federal agencies’ written drug scheduling policies, justified reopening the hearing that took place from June 29 through July 15.
DUID Victim Voices, physician Kenneth Finn and the National Drug and Alcohol Screening Association had requested additional testimony and discovery concerning how the Department of Health and Human Services (HHS) developed its 2023 marijuana evaluation, including the two-part test used to determine whether marijuana has a currently accepted medical use.
The parties also wanted to investigate why certain health concerns were addressed differently in the latest evaluation compared with earlier federal reviews, what standards the Food and Drug Administration used to assess marijuana’s abuse potential, and what underlying agency documents were examined by the GAO.
Julius rejected each of those arguments, finding that the questions either fell outside the scope of the hearing or could have been addressed through testimony and evidence already available to the parties.
Regarding the development of HHS’s two-part test, Julius said the central question was not how the test originated, but how much deference it should receive in the rescheduling proceeding. He noted that the parties had previously been given opportunities to address that issue.
He similarly rejected requests for additional questioning about the FDA’s evaluation, pointing to earlier testimony from Dr. Dominic Chiapperino, an FDA official who oversaw the agency’s portion of the assessment.
Julius also declined to allow further discovery into the documents reviewed by the GAO, stating that the agency’s report speaks for itself and that additional testimony about its preparation would unnecessarily complicate the proceeding.
The judge emphasized that the existing record already contains more than 2,500 pages of witness testimony and multiple thousands of pages of documentary evidence.
However, Julius agreed that the GAO report warranted limited additional written arguments, specifically concerning how much weight it should receive and whether the gaps in federal scheduling policies identified by the agency have any meaningful effect on the current marijuana rescheduling proposal.
The report, published September 23, found that while DEA scheduling decisions have generally aligned with recent HHS recommendations, both agencies need more comprehensive written policies governing their respective responsibilities.
Under the new order, interested parties may submit optional supplemental briefs of no more than 10 double-spaced pages by October 29, followed by optional replies of the same length by November 5. Parties cannot respond to one another’s briefs, and Julius indicated that requests for additional briefing beyond those deadlines are disfavored.
Importantly, the judge did not conclude that the GAO’s findings invalidate the rescheduling proposal. Instead, he directed parties to address whether any shortcomings identified in the report are substantial enough to affect the specific proceeding.
The order also maintains the temporary stay on the rescheduling case until the briefing period concludes. Julius specified that the stay will automatically expire at the conclusion of the newly established schedule.
With the request to reopen the hearing denied, the proceeding can move forward without another round of witness testimony or discovery. The remaining written arguments will focus narrowly on the GAO report and its relevance to the proposed transfer of marijuana from Schedule I to Schedule III.
The order does not establish a deadline for Julius to issue his final recommendation on rescheduling.
