The Drug Enforcement Administration (DEA) has filed a new response in the federal marijuana rescheduling case, urging an administrative law judge to reject efforts to reopen the hearing for additional discovery and testimony, calling the request an “obvious fishing expedition.”
The 10-page filing, dated and submitted October 20 ahead of an October 21 deadline, responds to a motion from the National Drug & Alcohol Screening Association, DUID Victim Voices and physician Kenneth Finn. The groups are seeking additional documents, witness testimony and briefing following a September report from the Government Accountability Office (GAO) identifying deficiencies in federal drug scheduling procedures.
DEA argues that neither the Administrative Procedure Act nor the Controlled Substances Act gives participants a general right to discovery in administrative rulemaking proceedings. According to the agency, additional discovery is generally justified only when parties make a strong showing of government misconduct or demonstrate that the existing record is too limited to allow meaningful judicial review.
“None of the moving parties have made the requisite showing here,” DEA attorneys wrote, asking Chief Administrative Law Judge Derek Julius to deny the motion.
The dispute centers on a September 23 GAO report that found DEA and the Food and Drug Administration lacked comprehensive written policies governing aspects of the drug scheduling process. Opponents of rescheduling argue those findings warrant further examination of how federal officials evaluated marijuana and reached their recommendation to move it from Schedule I to Schedule III.
DEA disputes that interpretation, arguing the report did not identify problems with the scientific and medical evaluation underlying the rescheduling recommendation.
“The Report did not find any concerns with the materials that make up the Movants’ discovery requests,” the agency stated, specifically citing the scientific assessment, the legal framework used to determine currently accepted medical use and the substances FDA used for comparison.
The agency also challenged requests for internal documents identifying everyone involved in developing the two-part test used to determine whether marijuana has a currently accepted medical use, as well as records explaining how that approach was selected.
DEA acknowledged that FDA witness Dominic Chiapperino did not identify every individual involved in developing or approving the test. However, the agency maintained that opponents had an opportunity to question him during the hearing and should not be allowed to revisit those issues through another round of testimony.
Reopening that inquiry, DEA argued, would give opponents a “second bite at the apple.”
The filing also addresses demands for investigative materials collected by GAO during its broader examination of federal drug scheduling practices. DEA questioned what additional information opponents expected those materials to provide, noting that the report already describes its findings, methodology and supporting evidence.
Agency attorneys emphasized that the existing administrative record includes extensive scientific materials and testimony. According to the filing, Chiapperino testified that his team spent approximately 10 months conducting the scientific review, with four working groups meeting regularly to assess the evidence.
DEA said the resulting record includes summaries of numerous studies, surveys and other scientific findings, along with supporting references. The agency argues that this material provides a sufficient basis for evaluating the proposed scheduling change without additional proceedings.
Although DEA has not opposed consideration of the GAO report itself, it maintains that the report’s findings do not justify reopening the hearing or delaying the rescheduling process for further discovery.
The agency also rejects the argument that a lack of written procedures demonstrates improper conduct, saying the standards used during the evaluation were addressed through testimony and extensive written materials.
“Movants’ argument that the lack of a written standard, after the same standard used was addressed throughout the hearing and addressed in voluminous written materials, fails to establish any showing of bad faith, let alone a strong showing,” the filing states.
DEA concludes that opponents have failed to establish either grounds for expanded discovery or a deficiency in the existing record sufficient to justify reopening the case. The agency is requesting that the judge deny the motion in its entirety.
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