A Rhode Island cannabis company sued the U.S. Department of Justice and the Drug Enforcement Administration claiming the agency is subjecting it to an illegal proceeding before an administrative judge.
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MMJ Biopharma Cultivation, of Westerly, also named Attorney General Merrick Garland and DEA administrator Anne Milgram as defendants in the suit filed Thursday. Judge Theresa Walbaum, the administrative judge set to hear its case, is also named in her official capacity. MMJ claimed the DEA had issued an order to show cause in response to its application to cultivate marijuana for research purposes, which the company claims would cause "irreparable harm."
The company said the U.S. Supreme Court has held that an administrative law judge appointment process "nearly identical" to that used by the DEA is unconstitutional because they are officers under the Constitution's appointments clause and therefore must be appointed by either the president or Garland.
"DEA [administrative law judges] are appointed by neither," the suit reads. "On information and belief, the DEA ALJ presiding over MMJ's administrative hearing was selected from a group of candidates provided by the White House Office of Personnel Management and appointed by the DEA administrator upon recommendation from DEA's chief ALJ."
The company argued that the Supreme Court held in the 2018 case Lucia v. SEC that the same process was unconstitutional for the SEC to use.
According to the suit, MMJ is seeking to conduct research into the production of gel capsules containing marijuana plant extracts with the goal of treating chronic conditions such as Huntington's disease and multiple sclerosis. The company said it holds two new drug applications from the Food & Drug Administration and sought two registrations from the DEA to grow the marijuana needed for its research.
The DEA had "flagrantly ignored" statutory deadlines to issue a decision on the application before issuing a show cause order in October, according to the suit. It took almost 2½ years for the DEA to commence an investigative process for MMJ's manufacturing application, the suit reads. During that time, the DEA sent an investigator to inspect MMJ, and, according to the suit, the company was not informed of any issues with its application.
"Following that investigation, MMJ attempted to follow up with the DEA on several occasions and was met with, at best, blatant indifference and, at worst, callousness," the suit reads.
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