Legal counsel representing the National Cannabis Industry Association (NCIA) filed a motion on Feb. 12 to consolidate with Ellen Brown, another pro-rescheduling designated participant, for the Schedule III hearing process that’s currently delayed amid an interlocutory appeal.
Khurshid Khoja, founder of minority-owned law firm Greenbridge Corporate Counsel P.C., sent the motion to the Drug Enforcement Administration’s (DEA) chief administrative law judge, John J. Mulrooney. Khoja serves as chair emeritus on the NCIA Board of Directors.
Pending Mulrooney’s approval, Khoja plans to provide Brown with pro-bono representation as long as Brown’s approved witness, Dr. Marion McNabb, amends her testimony to align with the testimonies of NCIA’s witness(es).
Khoja’s motion comes after Brown filed a separate request with Mulrooney on Feb. 11, asking the judge for additional time to confer with a “potential partner” (the NCIA), revise and refile McNabb’s summary of testimony, and prepare and refile an updated exhibit list to help secure her new partnership with NCIA. Mulrooney granted Brown’s motion, providing her until March 14 to complete the three tasks.
“While the potential partner has agreed to allow me to consolidate with them, and their lead counsel has agreed to represent me pro bono due to my veteran status, in our discussions they have expressly conditioned these agreements on my best efforts to harmonize my expert witness’s presentation with their own, reserving the potential partner’s right to withdraw from the consolidation if we are ultimately unable to align our positions,” Brown wrote in her request. “While this seemed like a challenge at first blush, I believe that I can meet this condition with your leave to amend the scope of Dr. McNabb’s testimony.”
McNabb, who has a master’s and doctorate in public health, is the principal investigator of eight real-world cannabis population-level research studies examining why and how medical patients and consumers use cannabis.
As an approved witness, McNabb has the opportunity to sway Mulrooney’s eventual recommendation—should the hearing process resume—on whether the DEA should issue a final rule that aligns with the Department of Justice’s proposed rule being considered in the hearing: that cannabis be reclassified as a Schedule III drug under the Controlled Substances Act.
Mulrooney previously granted Brown leave on Jan. 22 to seek consolidation with another designated participant after the judge decided her representation under a previous consolidated group was “suboptimal.”
While the DEA named Brown—a Massachusetts Cannabis Advisory Board appointee and U.S. Air Force veteran—as one of 25 designated participants for the hearing in October, Mulrooney ruled in November that Brown lacked sufficient standing under the Administrative Procedure Act (APA) to independently continue in the proceedings as a standalone participant.
In turn, Brown joined with the Connecticut Office of the Cannabis Ombudsman (OCO) and The Doc App under consolidated legal counsel from Matt Zorn, a partner at Yetter Coleman LPP.
Editor’s note: While Brown continues her pursuit to keep her status as a designated participant in the administrative law judge hearing, OCO and The Doc App have since withdrawn themselves from the process entirely and Zorn is no longer involved.
However, Brown and Zorn broke ties last month after OCO joined a motion in early January requesting the interlocutory appeal amid ex parte communication claims that the DEA and anti-rescheduling participants improperly colluded. Brown opposed the appeal.
RELATED: Cannabis Rescheduling Participant Never Consented to Interlocutory Appeal Motion
In her Feb. 11 filing, Brown included an 11-page exhibit of her communications with Zorn following the interlocutory appeal motion in mid-January.
“The motion filed [on Feb. 11] includes necessary, factual and relevant communications,” Brown told Cannabis Business Times. “These communications have allowed for Chief Judge Mulrooney to grant my extension request and revision of all materials.”
In part, Brown claimed she landed in her current position—needing to reconsolidate with NCIA—because Zorn never filed for a motion to reconsider her APA standing in November, when Mulrooney said it was “difficult to gauge” whether Brown satisfied APA standing consideration four (SC4) for the hearing process.
“I was ill-equipped to understand the application of the APA standing considerations, much less how to adequately plead that I had met them,” Brown wrote in her Feb. 11 motion. “Given this tribunal’s subsequent guidance in the November order on exactly how to satisfy SC4, I know that I would have been able to satisfy SC4 if I had received the assistance of my counsel in further elaborating on my background through a motion for reconsideration.”
Brown used this as a bargaining chip in her request this week: Had she achieved independent standing through a motion to reconsider in November, then she would not have been caught in the consolidation crosshairs of having to revise McNabb’s testimony summary to align with and secure a new partnership with the NCIA.
When Brown initially filed her motion for leave on Jan. 19—as a result of the de-consolidation with OCO—she asked Mulrooney to reconsider his initial determination from November that she did not possess sufficient APA standing to continue independently in the proceedings.
Mulrooney denied that request.
“Ms. Brown has not alleged any sufficient new grounds (e.g., change in law, newly discovered evidence, or a need to prevent manifest injustice) that would justify reconsideration of the issue of her APA standing,” the judge wrote in a Jan. 22 order.
While Mulrooney granted Brown’s latest motion on Feb. 11, extending her deadline to take the necessary consolidation actions to secure her ongoing participation in the hearing process, he said Brown’s allegations against her former counsel were irrelevant to his order.
“To be sure, Ms. Brown’s allegations are potentially nettlesome for Ms. Brown’s former counsel,” he wrote in Tuesday’s order. “However, findings on this collateral morass are not necessary to dispose of the present issue. For the purposes of this order (only), the veracity of the allegations will be assumed as sufficiently credible to render an adjudication on the requested relief. To be clear, this order contains no findings on Ms. Brown’s representation allegations.”
