DEA Fails to Set Cannabis Rescheduling Briefing Schedule; No Progress Made on Interlocutory Appeal

OG Article

Tony Lange

April 10, 2025

Despite some cannabis industry hopefuls suggesting that a President Donald Trump administration could swoop in and save the day, zero progress has been made on the rescheduling process in the past 90 days.

The Drug Enforcement Administration’s (DEA) attorneys submitted a joint status report on April 10 to John J. Mulrooney, the agency’s chief administrative law judge (ALJ) tasked with overseeing a fair and transparent hearing process for a proposed rule to reclassify cannabis from Schedule I to Schedule III under the Controlled Substances Act.

The substance of the status update was limited to fewer than 100 words, with the DEA notifying Mulrooney that its acting administrator—currently Derek S. Maltz—has failed to set a briefing scheduling. While Trump picked agency veteran Terry Cole to be the next DEA administrator on Feb. 11, the U.S. Senate has yet to confirm that nomination.

“To date, movants’ interlocutory appeal to the acting administrator regarding their motion to reconsider remains pending with the acting administrator,” DEA attorneys wrote in the April 10 update. “No briefing schedule has been set.”

The briefing schedule is to allow the hearing’s designated participants to file briefs with the DEA administrator in relation to an interlocutory appeal that Mulrooney granted on Jan. 13.

Mulrooney granted the rare appeal amid allegations that the DEA participated in ex parte communications with anti-rescheduling participants—communications that are prohibited under the Administrative Procedures Act (APA).

More specifically, the judge denied a motion to reconsider the DEA’s role as the proponent of the proposed rule filed by a subset of pro-rescheduling designated participants—cannabis company Village Farms International, veterans group Hemp for Victory and the Connecticut Office of the Cannabis Ombudsman (OCO), collectively referred to as “the movants.”

Editor’s note: The DEA’s April 10 joint filing was on behalf of itself and the movants, as requested by Mulrooney. Shane Pennington, partner at Blank Rome LLP, was included on the filing. He represents Village Farms and Hemp for Victory. OCO withdrew itself as a designated participant and is no longer involved as a movant.

Although Mulrooney dismissed the movants’ requested relief in early January to strip the DEA of its status in the hearing process, he took the matter seriously enough to grant the appeal and order a stay before the hearing—initially scheduled to run from Jan. 21 to March 6—had begun, indefinitely delaying the process.

In doing so, he ordered the DEA to work together with the movants to file a joint status update every 90 days while the process is stayed by the appeal.

“As must have been anticipated by the movants, an interlocutory appeal returns jurisdiction of the matter to the full control of DEA agency leadership in all respects,” Mulrooney wrote in the order.

Once the briefing schedule is issued, the DEA’s head—whether that be Maltz or Cole—can entertain oral arguments if he “desires” and then issue a binding, written decision to Mulrooney on the appeal and if the hearing process should resume.

Many developments have unfolded since Mulrooney issued his Jan. 13 order:

• Jan. 15, 2025: Mulrooney correctly asserted that the Department of Justice (via former Attorney General Merrick Garland’s signature) issued the notice of proposed rulemaking to reschedule marijuana after the judge suggested two months earlier that the DEA had issued the NPRM. The judge also recommended to former DEA Administrator Anne Milgram that all roughly 20 designated participants be included in the briefing schedule.

• Jan. 20, 2025: Upon his inauguration, Trump issued a regulatory freeze on all executive departments and agencies, instructing them not to propose or issue “any rule in any manner, including by sending a rule to the Office of the Federal Register.”

• Feb. 7, 2025: Mulrooney granted a withdrawal request from one of the movants behind the interlocutory appeal—the Connecticut Office of the Cannabis Ombudsman—leaving attorney Matthew Zorn, a partner at Yetter Coleman LLP, no choice but to drop out of the hearing process. Zorn has one of the most successful records against the DEA, including a 2019 lawsuit resulting in Dr. Sue Sisley and the Scottsdale Research Institute being allowed to grow their own cannabis for clinical research.

• Feb. 17, 2025: Doctors for Drug Policy Reform, represented by Yetter Coleman LLP, filed a 56-page brief in the U.S. Court of Appeals for the D.C. Circuit related to its exclusion from the rescheduling hearing process. The filing made public the 163 organizations/individuals who requested to participate in the hearing, the rejection letters sent to 138 applicants and the “cure letters” the DEA sent to several anti-rescheduling entities, providing them the opportunity to submit supplemental information showing that they met the “interested person” status under the APA—documents Milgram previously kept from the public. The documents shed light on the movants’ claim that the DEA participated in improper communications.

• March 17, 2025: Mulrooney granted a motion for one of the interlocutory appeal movants—Hemp for Victory—to drop Perkins Coie as its counsel in the rescheduling process shortly after Trump targeted the Seattle-based law firm in an executive order.

• April 2, 2025: Shane Pennington, the attorney who represents Village Farms International, switched law firms, joining Blank Rome LLP. Pennington remains as the legal counsel for Village Farms in the rescheduling process

• April 7, 2025: Pennington filed a notice of appearance with Mulrooney to represent Hemp for Victory in the rescheduling process.

This week’s news that the DEA has made zero headway on resolving the stay from the interlocutory appeal could indicate that the agency is OK with the status quo—leaving cannabis listed alongside heroin, LSD and ecstasy as a substance with no currently accepted medical use and as having the highest potential for abuse.

Although the U.S. Department of Health and Human Services determined through scientific and medical evaluation that cannabis has currently accepted medical use in the U.S. and recommended in August 2023 that it be rescheduled, former DEA Administrator Anne Milgram did not sign a notice of proposed rulemaking for that recommendation—a document typically signed by someone in her position.

Instead, the DEA stated in May 2024 that it “has not yet made a determination as to its views of the appropriate schedule for marijuana” after former Attorney General Merrick Garland signed the proposal.

Given the DEA’s history of opposing cannabis rescheduling, some may wonder what’s stopping the agency from sitting idly on the interlocutory appeal until it’s forced to act, perhaps by a presidential directive or by the Department of Justice stepping in via Attorney General Pam Bondi.

For some cannabis industry stakeholders, the focus is on Trump, who indicated along the 2024 presidential campaign trail that he supported relisting cannabis to Schedule III. Since taking office, however, he’s been silent on the matter.

Should the DEA stall too long from resolving the interlocutory appeal, the movants could potentially try and force the agency’s hand in the D.C. Circuit, claiming that the APA forbids the DEA from ignoring Mulrooney’s order and unreasonably delaying the process. As of now, cannabis rescheduling remains in the DEA’s wheelhouse.

Although Trump issued a regulatory freeze on his inauguration day, that executive order clarified that no new proposed rules or final rules could be sent to the Office of the Federal Register until a department or agency head appointed or designated by Trump had a chance to review and approve the rule.

In other words, the proposed rule to reschedule cannabis was already in place. Nothing is stopping the DEA’s acting administrator under Trump from reviewing the proposed rule and issuing a final rule.