UNITED STATES DEPARTMENT OF JUSTICE

Drug Enforcement Administration

In the Matter of

Schedules of Controlled Substances: DEA Docket No. 1362

Proposed Rescheduling of Marijuana Hearing Docket No. 24-44

PREHEARING RULING
On December 2, 2024, a preliminary hearing (the Preliminary Hearing) was conducted in
the above-captioned matter at the Drug Enforcement Administration (DEA or Agency) Hearing
Facility in Arlington, Virginia. 21 C.F.R. § 1316.54. The Preliminary Hearing was held as part
of ongoing hearing proceedings being conducted in connection with the publication of a notice of
proposed rulemaking (NPRM) issued by the Department of Justice. Schedules of Controlled
Substances: Rescheduling of Marijuana, 89 Fed. Reg. 44597 (2024). The NPRM seeks to move
marijuana from Schedule I of the Controlled Substances Act (CSA) to Schedule III. Id. The
DEA Administrator subsequently determined that a hearing was appropriate and published her
own order (General Notice of Hearing or GNoH) stating as much. Schedules of Controlled
Substances: Rescheduling of Marijuana, 89 Fed. Reg. 70148, 70148-49. The General Notice of
Hearing fixed a December 2, 2024 commencement date. Id.
There has been a considerable level of spirited motion practice by the Designated
Participants (and even numerous attempts from some outside that group). This Prehearing
Ruling is issued pursuant to 21 C.F.R. § 1316.55.1

I. Purpose
The NPRM and GNoH state that the purpose of this hearing is to receive factual evidence
and expert opinion testimony regarding whether marijuana should be transferred to Schedule III

1
The following cases were mentioned during the Preliminary Hearing: Ester Mark, M.D., 86 Fed. Reg. 16760
(2021); Gregg & Son Distributors, 74 Fed. Reg. 17517 (2009); Nicholas A. Sychak, d/b/a Medicap Pharmacy, 65
Fed. Reg. 75959 (2000); Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024); Axon Enter., Inc. v. FTC, 598
U.S. 175 (2023); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Miami-Luken, Inc. v. DEA, 900 F.3d 738
(6th Cir. 2018); and McClelland v. Andrus, 606 F.2d 1278 (D.C. Cir. 1979).
under the CSA in accordance with 21 U.S.C. §§ 811, 812. 89 Fed. Reg. at 44599; 89 Fed. Reg.
at 70149.

II. Witnesses
All of the parties have noticed their intention to present testimony at the hearing. The
parties are reminded that testimony not summarized in prehearing statements may (and likely
will) be excluded at the hearing on the merits. All parties should endeavor to ensure that their
witnesses do not stray outside their areas of expertise. Witnesses may be afforded the
opportunity to provide video teleconference (VTC) testimony should a request be filed with this
tribunal no later than 2:00 p.m. Eastern Time (ET) on December 13, 2024 (The Homework
Date). Irrespective of whether a party has been granted leave to utilize VTC or will be present in
court, any attorney/representative directing or cross-examining a witness must be physically
present in the courtroom at the time of the examination.
The order of the parties’ presentations is outlined infra and the following guidelines will
apply to all parties, with the potential for some additional latitude afforded to the Government as
the burdened party. Each party will have ninety (90) minutes to present the testimony of
their witness. Before offering their witness, counsel may present a two (2) minute opening
statement about their witness and any proposed exhibits to be sponsored through the witness.
The parties are encouraged to consider whether there is merit in consolidation with other
participants that have similar (or complimentary) litigation objectives, witnesses, and/or areas of
interest. Consolidated parties will be afforded the opportunity to present the testimony of up to
two (2) witnesses during the hearing, for a presentation not to exceed one hundred and twenty
(120) minutes, should they avail themselves of the opportunity to consolidate.
At the conclusion of a party’s presentation, counsel or the designated representative for
that party may be afforded either a ten (10) minute closing argument or the opportunity to
submit a brief, not to exceed twenty-five (25) pages within five (5) business days of their
witness’s presentation. This binary argument option will apply to all parties, regardless of the
number of witnesses testifying.
The cross-examination of witnesses will generally be limited to matters covered on direct
examination; however, if a party submits an affidavit or letter into evidence from a witness who
also testifies in person, cross-examination as to matters referenced in the document may be

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permitted, even if the witness does not refer to them in their direct testimony. As explained
during the Preliminary Hearing, cross-examination will be limited to twenty (20) minutes for
each party on the opposing side of the issue.

III. Documents
The parties have noticed their respective intentions to offer into evidence documents
identified in their prehearing statements.2 Further, all of the parties must serve each other with a
copy (electronic or hardcopy) of the documents noticed in their respective prehearing statements
no later than January 3, 2025. The parties are reminded that documents not timely supplied to
the other Designated Participants or the tribunal, may (and likely will) be excluded at the
hearing. The parties are further reminded that inasmuch as these are formal rulemaking
proceedings, a foundation must be laid for recognition as an expert as well as for each and every
proposed exhibit as a condition precedent for inclusion in the record. 21 C.F.R. § 1316.59. A
limited number of affidavits3 may be received into the record, subject to the evidentiary weight

2
For reasons that are not altogether apparent, although directed to do so in the November 19, 2024 Standing Order,
the Government did not supply the complete list of documentary evidence it intended to offer into the record.
Instead, the Government noticed a few documents and indicated below the line that notice of more documents could
be forthcoming upon a supplemental filing date. In fairness to the Government’s position, a supplemental
prehearing statement date is not an uncommon feature of DEA administrative enforcement proceedings. There will
be no supplemental prehearing statements in this formal rulemaking proceeding, and the Government is herein
DIRECTED to furnish a complete list no later than The Homework Date. Further, as discussed at the Preliminary
Hearing, the tribunal received several copies of proposed exhibits attached to the filings submitted in prehearing
motion practice and none of those documents will be considered as part of the record. The process for submitting
proposed exhibits for admission into the record is outlined later in this order.
3
During the Preliminary Hearing, the Government was granted leave to substitute an affidavit for the live testimony
of one of its noticed witnesses, Heather Achbach, the Acting Section Chief of the DEA’s Regulatory Drafting and
Policy Support Section. This witness had been noticed to lay a foundation for comments (the Comments) filed by
the American public in response to the NPRM. Mindful that this proposed exhibit has not yet been offered, for the
planning purposes of all, as alluded to during the course of the Preliminary Hearing, it is quite unlikely that the
Comments, which number well in excess of 43k, will be received into the hearing record. To be sure, NPRM
comments play a vital role in the Administrative Procedure Act (APA) rulemaking process. They must be carefully
analyzed by the proponent agency and responded to in detail in the final rule published in the Federal Register, but
they are not admissible evidence at a hearing under the APA. 5 U.S.C. § 556(d)(“A party is entitled to present his
case … by documentary evidence … and to conduct such cross-examination as may be required for a full and true
disclosure of the facts.”); see also Attorney General’s Manual on the APA § 7(c) (The admission of evidence at an
APA hearing “does not extend to presenting evidence in affidavit or other written form so as to deprive the agency
or opposing parties of opportunity for cross-examination, nor so as to force them to assume the expense of calling
the affiants for cross-examination.”); Basco v. Machin, 514 F.3d 1177, 1182 (11th Cir. 2008); J.A.M. Builders v.
Herman, 233 F.3d 1350, 1354 (11th Cir. 2000); Keller v. Sullivan, 928 F.2d 227, 230 (7th Cir. 1991); Hoska v.
Dep’t of the Army, 677 F.2d 131 (D.C. Cir. 1982); Calhoun v. Bailar, 626 F.2d 145, 149 (9th Cir. 1980). Neither
are the Comments admissible evidence under the DEA’s own regulations. 21 C.F.R. § 1316.59(a) (“The [ALJ] shall
admit only evidence that is competent, relevant, material and not unduly repetitious.”). The Comments were never
intended by Congress to be part of the APA hearing process. The APA unequivocally directs that a “rule [may not

3
adjustment specified in the regulations. 21 C.F.R. § 1316.58(b) (“Affidavits admitted into
evidence shall be considered in light of the lack of opportunity for cross-examination. . . .”).
No later than the date fixed elsewhere in this order for the exchange of documents, each
party is to file its noticed and proposed exhibits in the following manner: (1) each party will
receive an email invitation to join the Department of Justice Enterprise File Sharing (JEFS)
system, a secure commercial platform maintained by Box.com; (2) a party seeking to offer
evidentiary exhibits must obtain a (free-of-charge) Box.com/JEFS account and must timely
upload all proposed exhibits there; and (3) in addition to the electronic evidentiary submission on
JEFS, each party must also timely provide three (3) complete sets of hard copies of all proposed
exhibits to the Hearing Clerk.4 The submitted proposed exhibits (both hardcopy and electronic)
must conform to the following specifications:
• Proposed exhibits must be pre-marked for identification with a docket number
(e.g., Dkt. No. 23-42) and an exhibit number (e.g., [DP Name/Abbreviation] Ex.
1(ID) or Gov’t Ex. 1 (ID)).5
• The pages of each proposed exhibit must be numbered. In addition, the first page
of each proposed exhibit must state the total number of pages contained therein.

be] issued except on consideration of the whole record or those parts thereof cited by a party and supported by and
in accordance with the reliable, probative, and substantial evidence.” 5 U.S.C. § 556(d). The 43k+ comments are
not evidence, they cannot be. Congress understood that when it drafted the APA, as did the Agency when it drafted
its regulations. If the Comments are not admissible evidence they cannot be considered in the recommended
decision. Admitting the Comments into to a hearing record where they cannot be considered would indeed be a
pointless exercise. On a more pragmatic level, to attempt to foist a gargantuan mass of inadmissible comments on
the tribunal risks the appearance (even if subjectively unwarranted) of a dilatory tactic inflicted on the trier of fact by
the agency that represents itself as the proponent of the rule. There is an additional dynamic that may bear some
reflection. The DEA regulations require that in addition to the forwarding of evidence received into the record,
where evidence is excluded, “if the excluded evidence consists of evidence in documentary or written form, a copy
of such evidence shall be marked for identification and shall accompany the records as the offer of proof.” 21
C.F.R. § 1316.60 (emphasis supplied). Thus, as directed elsewhere in this order, by regulation, three (3) complete
hardcopies of the Comments would have to be supplied to the tribunal at the time they are offered, and forwarded to
the Administrator for her review, even if rejected here. Some additional reflection upon this strategy on the part of
the Government may be prudent.
4
Due to DEA email capacity limitations, unless otherwise directed by the tribunal, proposed evidentiary exhibits
will not be accepted through ECF. Proposed exhibits should be provided in hard copy format, as well as through
JEFS as described, supra. The parties are reminded that, because the mailing address is not the physical address of
this office, some additional screening time is baked into the process. That said, any evidentiary exhibits timely
received electronically will be considered timely. The evidentiary exhibits should be mailed to the Hearing Clerk’s
address, as follows:
DEA Headquarters
Attn: Hearing Clerk, Office of Administrative Law Judges
8701 Morrissette Drive
Springfield, Virginia 22152
5
Exclusive of audio/video recordings, exhibits provided in the form of compact disc (CD), PowerPoints, or other
electronic versions will not be accepted, unless otherwise stated in this order or a subsequent one issued by the
tribunal.

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 • All proposed hardcopy documentary exhibits must be supplied in a single-sided
format and in an appropriately-sized three-ring binder.
• The electronic version of submitted evidentiary exhibits and the hardcopy binder
must also include a Table of Contents listing the number of each proposed exhibit,
a brief description of each proposed exhibit, and the number of pages in the
proposed exhibit.
Proposed exhibits received after the January 3, 2025 date fixed in this order for the
service and exchange of documents (excluding exhibits to be utilized for cross-examination,
rebuttal, and surrebuttal) may not (and likely will not) be admitted into evidence, absent a
showing of good cause.
Each party should ensure that it has its own copy of all proposed exhibits for its own use
during the hearing.6 Further, the parties must ensure that prior to any approved video
teleconference testimony, each witness has been furnished with a useable copy (hard copy or
otherwise) of any and all proposed exhibits (appropriately marked for identification) that may
pertain to that witness’s testimony.

IV. Hearing
Under the regulations,7 the notice of hearing fixes the place and time for hearing
commencement.8 In this matter, the GNoH fixed the place of hearing at the DEA Hearing
Facility in Arlington, Virginia. 89 Fed. Reg. at 70148-49. As discussed, supra, the DEA
Hearing Facility will remain the venue throughout the hearing proceedings.9
In accordance with 5 U.S.C. § 554(b), the parties were consulted to ascertain the
availability of their respective representatives and witnesses. Any party scheduled to present a
witness must be present in the courtroom on that date, even if his/her/its witness will be
appearing via VTC. Similarly, any representative seeking to cross-examine an opposing witness
must likewise be present in the courtroom. Failure to appear, in the absence of good cause and
granted by the tribunal in advance, will result in forfeiture of the opportunity to present a witness
as well as the opportunity to cross.

6
The copies of the documents and/or affidavits exchanged by the parties ahead of the hearing are to serve as
opposing parties’ working copy during the hearing.
7
21 C.F.R. § 1316.53.
8
As directed by the GNoH, the Preliminary Hearing commenced hearing proceedings on December 2, 2024. 89
Fed. Reg. at 70148-49.
9
As a reminder, no cell phone use in the courtroom will be permitted throughout the proceedings. No exceptions.

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 Accordingly, the hearing will commence on January 21, 2025 at the DEA Hearing
Facility. Proceedings will begin at 9:30 a.m. ET each day and continue through 5:00 p.m. ET
daily from Tuesday through Thursday of each week. There will be a week-long recess from
February 11, 2025 through February 13, 2025. The table infra outlines the duration of the
hearing on the merits in this case:
Week Activity
1/21/2025—1/23/2025 Hearing
1/28/2025—1/30/2025 Hearing
2/4/2025—2/6/2025 Hearing
2/11/2025—2/13/2025 Break—No Hearing Proceedings
2/18/2025—2/20/2025 Hearing
2/25/2025—2/27/2025 Hearing
3/4/2025—3/6/2025 Hearing

Based on the representations of the parties regarding their representative and witness
availability during the Preliminary Hearing, the parties will present their cases in the following
order and on the following days:
Presentation Date Party Name
1/21/2025 Government

1/22/2025 Hemp for Victory (HFV)

1/23/2025 Cannabis Bioscience International Holdings (CBIH)

1/28/2025 Connecticut Office of the Cannabis Ombudsman (OCO); Ellen Brown; and
The DocApp (collectively, OCO. et al.)
1/29/2025 National Cannabis Industry Association (NCIA)

1/30/2025 Village Farms International (VFI)

2/4/2025 The Commonwealth Project (TCP)

2/5/2025 Veterans Initiative 22 (VI22)

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 2/6/2025 Dr. Ari Kirshenbaum

2/18/2025 Tennessee Bureau of Investigation (TBI)

2/19/2025 International Association of Chiefs of Police (IACP)

2/20/2025 Drug Enforcement Association of Federal Narcotics Agents (DEAFNA)

2/25/2025 Smart Approaches to Marijuana (SAM) and State of Nebraska (NE)

(collectively, SAM, et al.)
2/26/2025 Community Anti-Drug Coalitions of America (CADCA)

2/27/2025 Cannabis Industry Victims Educating Litigators (CIVEL)

3/4/2025 Dr. Kenneth Finn

3/5/2025 National Drug and Alcohol Screening Association (NDASA)

3/6/2025 Dr. Phillip Drum

Pursuant to 21 C.F.R. § 1316.44 and 21 C.F.R. § 1316.53, regulatory provisions requiring

publication of the time and place of the hearing in the Federal Register are waived.

V. Subpoenas
The parties are advised that any requests for subpoenas10 are to be filed no later than The
Homework Date. Each subpoena shall be completed in advance by the party seeking it, and the
completed subpoena shall be filed with this tribunal with a request for issuance.11 As explained
during the Preliminary Hearing, the authority of a DEA ALJ’s subpoena authority extends only

10
21 C.F.R. § 1316.52(d).
11
To the extent that either party seeks to present witness testimony through VTC, the following language should be
utilized to compel testimony by virtual attendance in a subpoena: “At the Drug Enforcement Administration Hearing
Facility, located at 700 Army Navy Drive, 2nd Floor, Arlington, Virginia, 22202, by VIRTUAL APPEARANCE
through a link to be furnished by the requesting party n/l/t one (1) day prior to the date and time of your scheduled
appearance and testimony. The testimony will be recorded verbatim through a reporting company under contract
with the United States Government.”

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as far as “to the extent necessary to conduct [the] administrative hearing[] pending before him.”
21 C.F.R. § 1316.52(d).
The subpoena template may be found on the Office of Administrative Law Judges’
website at https://www.dea.gov/administrative-law-judges. Subpoena requests that do not
comply with these instructions will be returned to the requestor without further action. The party
seeking to secure evidence through the use of a subpoena will be responsible for ensuring proper
service.

VI. Motions
In view of the robust level of motion practice that has accompanied prehearing
proceedings, as announced at the Preliminary Hearing, the time for seeking relief through motion
practice has reasonably passed. The time has come to receive evidence and proceed with the
hearing. Any further motions must be accompanied by a request to file out of time and
supported by a demonstration of good cause that is likely to be narrowly construed.

VII. E-Filing
All proceedings will be governed by the provisions of 21 C.F.R. §§ 1316.41-1316.68.12
The parties’ attention is specifically directed to 21 C.F.R. § 1316.45, which provides, inter alia,
that “[d]ocuments shall be dated and deemed filed upon receipt by the Hearing Clerk.” In these
formal rulemaking proceedings, documents (other than proposed evidentiary exhibits) must be
filed electronically. The exclusive method of filing correspondence in these proceedings is as a
PDF attachment via email to the DEA Judicial Mailbox ([email protected]). The forwarding
email on all electronically-filed correspondence must indicate that it was simultaneously served
on the opposing parties via email. The Designated Participants must ensure that all documents
filed with the DEA Judicial Mailbox are simultaneously served on the Government Mailbox
at ([email protected]). Any request(s) to modify email addresses of a party or
counsel must be made on notice to this tribunal and the parties. The email receipt date reflected
by the DEA Judicial Mailbox server shall conclusively control all issues related to the date of
service of all filed correspondence, provided however, that correspondence received after 5:00

12
Additional helpful information regarding DEA administrative proceedings may be found at the OALJ website,
https://www.dea.gov/administrative-law-judges.

8
p.m., local Washington, D.C. time, will be deemed to have been received on the following
business day. Note: While email is utilized as the method to forward documents for filing—as
attachments—no substantive matter communicated through the body of a forwarding email
will be considered. The parties are directed to refrain from including social security numbers or
personally identifiable information in electronically-filed documents. Proposed exhibits will not
be accepted via electronic filing, but must be filed in hard copy and through JEFS as detailed,
supra.
Dated: December 4, 2024 Digitally signed by
JOHN JOHN MULROONEY
MULROONEY Date: 2024.12.04
10:17:49 -05'00'
_________________________
JOHN J. MULROONEY, II
Chief Administrative Law Judge

CERTIFICATE OF SERVICE
This is to certify that the undersigned, on December 4, 2024, caused a copy of the
foregoing to be delivered to the following recipients: (1) Julie L. Hamilton, Esq., Counsel for the
Government, via email at [email protected]; James J. Schwartz, Esq., Counsel for the
Government, via email at [email protected]; Jarrett T. Lonich, Esq., Counsel for the
Government, via email at [email protected]; and S. Taylor Johnston, Esq., Counsel for the
Government, via email at [email protected]; (2) the DEA Government Mailbox, via
email at [email protected]; (3) Shane Pennington, Esq., Counsel for Village
Farms International, via email at [email protected]; and Tristan Cavanaugh, Esq.,
Counsel for Village Farms International, via email at [email protected]; (4) Nikolas
S. Komyati, Esq., Counsel for National Cannabis Industry Association, via email at
[email protected]; William Bogot, Esq., Counsel for National Cannabis Industry
Association, via email at [email protected]; and Khurshid Khoja, Esq., Counsel for
National Cannabis Industry Association, via email at [email protected]; (5) Dante
Picazo for Cannabis Bioscience International Holdings, via email at [email protected]; (6) Andrew J.
Kline, Esq., Counsel for Hemp for Victory, via email at [email protected]; and Abdul
Kallon, Esq., Counsel for Hemp for Victory, via email at and [email protected]; (7)
Timothy Swain, Esq., Counsel for Veterans Initiative 22, via email at [email protected];
Shawn Hauser, Esq., Counsel for Veterans Initiative 22, via email at [email protected];
and Scheril Murray Powell, Esq., Counsel for Veteran’s Initiative 22, via email at
[email protected]; (8) Kelly Fair, Esq., Counsel for The Commonwealth Project, via
email at [email protected]; (9) Rafe Petersen, Esq., Counsel for Ari Kirshenbaum, via
email at [email protected]; (10) David G. Evans, Esq., Counsel for Cannabis Industry
Victims Educating Litigators, Community Anti-Drug Coalitions of America, Phillip Drum,

9
Kenneth Finn, International Academy on the Science and Impacts of Cannabis, and National
Drug and Alcohol Screening Association, via email at [email protected]; (11) Patrick
Philbin, Esq., Counsel for Smart Approaches to Marijuana, via email at
[email protected]; and Chase Harrington, Esq., Counsel for Smart Approaches to
Marijuana, via email at [email protected]; (12) Eric Hamilton, Esq., Counsel for the
State of Nebraska, via email at [email protected]; and Zachary Viglianco, Esq., for
the State of Nebraska, via email at [email protected]; (13) Gene Voegtlin for
International Association of Chiefs of Police, via email at [email protected]; (14) Gregory J.
Cherundolo for Drug Enforcement Association of Federal Narcotics Agents, via email at
[email protected] and [email protected]; (15) Reed N. Smith, Esq., Counsel for
the Tennessee Bureau of Investigation, via email at [email protected]; and Jacob Durst,
Esq., Counsel for Tennessee Bureau of Investigation, via email at [email protected]; and
(16) Matthew Zorn, Esq., Counsel for OCO et al, via email at [email protected].
Digitally signed by
QUINN FOX
QUINN FOX Date: 2024.12.04
10:20:30 -05'00'
_____________________________
Quinn Fox
Staff Assistant to the Chief Judge
Office of Administrative Law Judges

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