February 12, 2025
Cannabis rescheduling advocates were already fighting on an uneven playing field, but now they’re down two participants with a third hanging in the balance.
John J. Mulrooney, the Drug Enforcement Administration’s (DEA) chief administrative law judge tasked with overseeing a fair and transparent hearing to debate the merits of the Department of Justice’s (DOJ) proposal to reclassify cannabis to Schedule III, granted a withdrawal request from two designated participants on Feb. 7.
Erin Gorman Kirk, whom Connecticut hired in May 2024 as the state’s Office of the Cannabis Ombudsman (OCO), and The Doc App (d/b/a My Florida Green)—both represented by attorney Matthew Zorn, partner at Yetter Coleman LLP—dropped out of the hearing process amid an interlocutory appeal that has delayed the process indefinitely.
"With our legislative session underway, and the prospect of a long, drawn-out DEA Rescheduling process, I felt our patients were better served by working with our esteemed legislators to improve the Connecticut Medical Cannabis Program and help our patients get back to the health they enjoyed before the adult-use marketplace began," Kirk told Cannabis Business Times. "This Office was created so we do not leave patients behind, and that’s where I continue to focus my efforts. I remain engaged with the broader community of patient advocates working to de-stigmatize our medication and provide healthier alternatives to wellness."
Previously, Kirk told Marijuana Moment on Feb. 7 that she decided to withdraw from the hearing process because “the behind-the-scenes shenanigans between the DEA and only certain parties caused us to lose faith in the process, and with our limited resources, it was no longer in the best interest of Connecticut patients to continue.”
After the interlocutory appeal was granted last month—as the result of a motion that Kirk supported—Kirk indicated that she was somewhat surprised that anyone had faith in the rescheduling process based on decades of hostility toward cannabis coming from Washington.
"As a lifelong Washingtonian who has been embroiled in the political process for decades and lived through Nixon’s racist, elitist, classist launch of the horrendous failure that was the 'War on Drugs,' I truly have no idea why anyone had faith that the DEA/ALJ process was going to finally end the nonsense," she wrote Jan. 16 on LinkedIn in response to the appeal.
"With the DEA apparently conspiring with anti-cannabis groups, and the judge saying from the first motion that he did not appreciate the [DEA] administrator’s methodology as he received no documentary support for why only 25 of us were chosen out of thousands who applied to be designated parties in the DEA cannabis rescheduling matter, this is actually a positive development," Kirk wrote. "There are some folks who only believe 280E matters, but as a patient advocate and a lifelong supporter of veterans, I think of things from different perspectives."
While Kirk had limited resources from the state of Connecticut to support her as a designated participant, Zorn was providing OCO pro-bono representation for the rescheduling hearing.
Zorn, who confirmed with CBT that he is no longer involved with the cannabis rescheduling hearing, has a successful record against the DEA. Along with fellow attorney Shane Pennington, Zorn filed—and won—a 2019 lawsuit against the agency that resulted in Dr. Sue Sisley and the Scottsdale Research Institute being allowed to grow their own cannabis for clinical research instead of relying on government-grown cannabis at the University of Mississippi.
More recently, Zorn represented a former DEA agent in successfully challenging his termination by the agency over CBD oil use. The agent got his job back with back pay.
In addition to granting OCO and The Doc App’s withdrawal, Mulrooney granted a motion for relief on Feb. 11 for another pro-rescheduling participant, Ellen Brown, a Massachusetts Cannabis Advisory Board appointee. The relief provides Brown until March 14 to potentially consolidate with another designated participant; revise and refile her expert witness’s summary of testimony; and refile an updated exhibit list.
“The motion marks the latest development in the ongoing representation saga related to the once-consolidated group of the Connecticut Office of the Cannabis Ombudsman (OCO), Brown, and The Doc App (formerly, OCO, et al.),” Mulrooney wrote in the Feb. 11 order. “As extensively detailed in an order issued on Jan. 16, 2025, and expounded upon in the motion, Ms. Brown’s experience with her former counsel was apparently mutually suboptimal.”
Earlier in the rescheduling process, Mulrooney ruled that Brown lacked sufficient standing under the Administrative Procedure Act (APA) to independently continue in the hearing proceedings as a standalone designated participant, meaning she must reconsolidate with a party that has standing. But her choices of pro-rescheduling participants are limited.
Mulrooney granted this relief as a result of Brown breaking ties with her former counsel, Zorn, after her name was mistakenly tied to the motion for the interlocutory appeal without her consent.
Brown told Cannabis Business Times last month that she opposed the interlocutory appeal, and she was never part of the discussion with Zorn to join the motion, which was spearheaded by Pennington, partner at Porter Wright Morris & Arthur LLP, and Andrew Kline, senior Counsel at Perkins Coie LLP.
Pennington represents cannabis company Village Farms International, while Kline represents veterans group Hemp for Victory—both pro-rescheduling participants.
Village Farms and Hemp for Victory filed an initial motion in November claiming the DEA stacked the participant deck in favor of prohibitionists and colluded with SAM via ex parte communications that violated the APA. The motion, which Mulrooney denied, asked the judge to disqualify the DEA.
In light of what Village Farms and Hemp for Victory considered new evidence that the DEA engaged in ex parte communications with another anti-rescheduling participant—the Tennessee Bureau of Investigation—Pennington and Kline filed a motion to reconsider in January that Zorn joined as counsel for OCO et al. The inadvertent inclusion of the “et al.,” meaning “and others,” indicated that Brown and The Doc App consented to the motion when they did not.
In addition to seeking relief, the motion to reconsider asked for Mulrooney to grant an interlocutory appeal if he again denied that relief, which is how the hearing’s current delay came to be.
Zorn joined the motion that included the interlocutory appeal request on behalf of OCO, but, with OCO’s withdrawal, just two interlocutory appellants now remain: Village Farms and Hemp for Victory.
Furthering the complex matter, Trump named 28-year DEA veteran Terry Cole—who holds an anti-cannabis stance as a career law enforcer—to head the agency on Feb. 11. If confirmed as the new DEA administrator, Cole will handle the interlocutory appeal moving forward.
Mulrooney indicated in his Feb. 11 order that it’s up to the new DEA administrator whether the rescheduling hearing resumes.
“While proceedings have been stayed, I have retained jurisdiction to resolve non-dispositive procedural issues to facilitate the resumption of proceedings should the [DEA] elect to return the case for additional hearing proceedings,” the judge wrote.
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