This article was updated at 11:15 a.m. ET Dec. 17 to reflect the DEA's revised subpoena request and the administrative law judge's subsequent order.
The Drug Enforcement Administration (DEA) made a major blunder in its subpoena request for witnesses in the upcoming cannabis rescheduling hearing. Still, an administrative law judge (ALJ) appears to be giving the agency another shot.
DEA Chief ALJ John J. Mulrooney issued an order dated Dec. 16 granting the DEA just one of its four subpoena requests made Dec. 13 for Food and Drug Administration (FDA) officials to appear as witnesses for the hearing’s testimonials that are scheduled to run from Jan. 21 through March 6.
However, while the DEA intended to subpoena four FDA officials for the hearing, according to a cover letter the agency submitted for the subpoena requests, the DEA’s chief counsel, Deputy Section Chief James J. Schwartz, appears to have accidentally listed the same person on all four subpoena requests.
Mulrooney pointed out this mishap in his order on Monday.
“Despite that representation [in] its cover letter and another filing submitted on December 13, 2024, the Government has listed the same person/subpoena recipient on each of its four (4) subpoena request forms,” the judge wrote. “That is, the Subpoena Requests appear to be four (4) identical copies of a subpoena request targeted to a single FDA official rather than four distinct requests to four separate recipients.”
Mulrooney said four copies of the subpoena with the same name is “apparently an error borne of inattention or inadvertence.”
The DEA’s subpoena requests come after the DEA indicated last month that it intends to call into question the FDA and Department of Health and Human Service’s (HHS) use of a two-part test to determine that cannabis has “currently accepted medical use” in the U.S. and therefore requires to be rescheduled from its Schedule I status under the Controlled Substances Act.
After the FDA and HHS conducted a scientific and medical evaluation of cannabis’s current schedule—at the request of President Joe Biden—the sister agencies formally recommended in August 2023 to DEA Administrator Anne Milgram that the plant be relisted as a Schedule III substance.
Now, as the DEA is set to act as the “proponent” of the Department of Justice’s proposed rule to reclassify cannabis to Schedule III at the ALJ hearing, the DEA is seeking to force FDA officials to testify about their findings from the scientific and medical evaluation. The FDA officials refused to testify at their own will.
However, the DEA’s counsel fumbled the government’s subpoena requests, which has now become a matter of public humiliation for the agency.
“To be sure, a blunder of this nature on a case that has garnered a significant level of national attention is an unexpected development, particularly in light of the unique dynamic of one agency of the United States Government seeking process to compel the attendance of multiple employees from another agency of the United States Government,” Mulrooney wrote in Monday’s order.
Specifically, the ALJ granted the DEA’s request for Dr. Patrizia Cavazzoni, M.D., from the FDA’s Center for Drug Evaluation and Research.
“It is anticipated that Dr. Cavazzoni will be qualified as an expert in psychiatry, mood disorders, and neuropsychopharmacology,” Schwartz and fellow DEA attorneys Jarrett Lonich and S. Taylor Johnson wrote to Mulrooney with their Dec. 13 filing.
The DEA’s cover letter also listed Drs. Douglas C. Throckmorton, M.D., Marta Sokolowska, Ph.D., and Dominic Chiapperino, Ph.D. All three are also with the FDA’s Center for Drug Evaluation and Research.
However, Mulrooney rejected three DEA subpoena requests “without prejudice” because of the blunder.
“All parties to this ongoing litigation were cautioned that any subpoena request that fails to comply with the instructions set forth in the Prehearing Ruling would ‘be returned to the requestor without further action,’” Mulrooney wrote.
Still, the judge appears to be giving the DEA another shot to patch up its mistake.
“To the extent the Government submits draft subpoenas that accurately seek the attendance of the witnesses from FDA that it actually intends to call as witnesses, those requests will be considered, PROVIDED that they are filed no later than 2:00 p.m. Eastern Time (ET) on December 20, 2024,” Mulrooney wrote.
Editor's note: After this article was published, DEA resubmitted corrected subpoena requests on Dec. 17 for Throckmorton, Sokolowska and Chiapperino. Within a couple hours, Mulrooney granted the revised subpoenas.
The judge also appears to contemplate the DEA seeking a stay to enforce the subpoena requests.
“FURTHER, to the extent the Government intends to request a stay of these proceedings to seek enforcement of the Cavazzoni Subpoena (or any other subpoena ultimately granted in this matter) in the United States District Court (21 U.S.C. § 876(c); 5 U.S.C. § 555), it should make that request expeditiously, but in no event later than 2:00 p.m. ET on January 3, 2025,” Mulrooney wrote.
The purpose of the hearing is for the judge and the DEA to consider the merits of the Schedule III recommendation before the judge issues a nonbinding recommendation to the DEA for its final rule on the matter.
The DEA (the “government”) is scheduled as the first party to present on Jan. 21, 2025.
