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MARIJUANA MOMENT
MARIJUANA COMPANY CLAIMS DEA REVIEW PROCESS IS UNCONSTITUTIONAL IN NEW FEDERAL
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POLITICS
MARIJUANA COMPANY CLAIMS DEA REVIEW PROCESS IS UNCONSTITUTIONAL IN NEW FEDERAL
LAWSUIT
Published
1 hour ago
on
April 8, 2024
By
Ben Adlin
In a new federal lawsuit filed against the leaders of the Department of Justice
(DOJ) and the Drug Enforcement Administration (DEA), a Rhode Island cannabis
company is asking the court to prevent an administrative law judge for the
agency from reviewing the firm’s application to manufacture marijuana for
research purposes, calling the matter “an unconstitutional proceeding led by an
unconstitutional decisionmaker.”
MMJ BioPharma Cultivation Inc. has previously taken legal action against the
federal government, filing a petition for a writ of mandamus last year in the
U.S. Court of Appeals for the D.C. Circuit that alleged DEA’s yearslong
licensing application process has hamstrung the company’s business and stymied
innovation that could benefit patients.
The company says it applied to legally grow marijuana for research and
development purposes back in 2018, aiming to produce medicine for clinical
trials focused on treatment of multiple sclerosis and Huntington’s disease, but
so far its been unable to secure the necessary approvals.
The immediate issue in the new lawsuit is whether an order by the government for
MMJ BioPharma to show cause in relation to a manufacturing registration
application should go before a DEA administrative law judge.
In the 21-page complaint, filed on Thursday in U.S. District Court for the
District of Rhode Island, the company says it would suffer irreparable harm if
it went before the DEA administrative law judge, whom it contends “was appointed
in violation of the Appointments Clause of Article II, Section 2, of the
Constitution and is not accountable to the President.”
The Constitution mandates that Article II “officers” such as the administrative
law judge (ALJ) “be appointed either by the President or the Head of their
Department, the Attorney General of the United States,” the suit argues. “DEA
ALJs are appointed by neither.”
Rather, the administrative law judge presiding over MMJ BioPharma’s hearing “was
selected from a group of candidates provided by the White House Office of
Personnel Management (‘OPM’) and appointed by the DEA Administrator upon
recommendation from DEA’s Chief ALJ.”
The suit names as defendants U.S. Attorney General Merrick Garland, DOJ and DEA
themselves, DEA Administrator Anne Milgram and DEA Administrative Law Judge
Teresa Wallbaum.
Neither agency immediately returned Marijuana Moment’s requests for comment on
the suit on Thursday evening.
MMJ BioPharma President Duane Boise described the situation as “horrific.”
“Her office is in the DEA, she gets paid by the DOJ, and [she] never went
through the process to appoint a judge,” he told Marijuana Moment. “And here she
sits ruling on all these cases.”
“The DEA is law enforcement. They’re supposed to uphold the law, not interpret
it,” Boise added. “There is a federally legal way to do this. We are doing it…
And we’re still getting blowback.”
Citing a 2023 Supreme Court decision, Axon v. Federal Trade Commission, the
lawsuit says “MMJ is entitled to seek relief in this Court to address its
constitutional challenges to avoid compounding the ‘here-and-now injury’ from
being subjected to this illegitimate proceeding—a harm that is ‘impossible to
remedy once the proceeding is over, which is when appellate review kicks in.'”
MMJ’s BioPharma’s hearing before the DEA administrative law judge was supposed
to kick off April 10, but following the filing of the federal lawsuit, that
matter has been temporarily put on hold as of Friday.
While the government in the DEA matter opposed delaying the review, Wallbaum,
the administrative law judge wrote that “a stay is appropriate” in the matter.
“Respondent’s challenge to this tribunal’s authority under Axon, which now
allows federal courts to entertain interlocutory structural challenges, is a
sufficiently new issue that makes it challenging to gauge the likelihood of
success,” she wrote in an order granting MMJ BioPharma’s requested stay.
More broadly, the company also claims in its lawsuit that DEA has repeatedly
dragged its heels on its applications to move forward, alleging the agency
failed to submit MMJ BioPharma’s application to the Federal Register within a
required timeframe and missed other determination deadlines.
During a more-than-two-year time period following a pre-registration DEA
investigation, for example, the company’s lawyers’ say MMJ BioPharma was “unable
to receive an approval or denial (via a show cause order) of their applications.
This was almost five years from the date of MMJ’s initial applications.”
It continues:
“During this time period, and despite numerous attempts to follow-up and check
the status of the registration approval determinations for manufacturing and
importing, DEA personnel expressed to MMJ that they have not yet made final
determinations and they have no idea when that determination will be made. At
one point during this period, DEA personnel responded ‘why do you want to know?’
when MMJ inquired regarding the status of the registrations.”
Other outreach to DEA Administrator Milgram, the DEA’s customer line and other
personnel went unanswered, the company claims.
“Throughout this entire time period, counsel for MMJ and MMJ representatives
reached out to the DEA and DEA counsel multiple times, requesting any feedback
as to what was still required by the DEA for the registration,” its lawsuit
says. “This outreach was most often met with silence, or with extremely
confusing or contradictory responses from the DEA.”
The delays have not only hurt the company by stalling its plans but also hurt
patients who could benefit from further research, it adds: “Countless patients
who have been affected by Multiple Sclerosis and Huntington’s Disease are
waiting on the potentially life-restoring treatments associated with development
of these pharmaceuticals.”
Boise, MMJ’s president, said in a press release that “we are dealing with
heartless individuals at the DEA who continue to hinder marijuana research and
development.”
“MMJ has meticulously followed the law, yet the DEA fails to do the same,” he
said. “Ultimately, it is the patients in need who suffer due to government
inaction.”
A ruling against MMJ BioPharma by the DEA administrative law judge could
ultimately force the company to close its doors, it claims.
“Time and time again,” the lawsuit says, “the process is obfuscated by the DEA
and its agents despite MMJ’s obvious desperation to obtain clarity on the
alleged ‘requirements.'”
It asks the federal district court to “declare unconstitutional the statutes,
regulatory provisions, and policies providing for the appointment and removal of
DEA ALJs as applied by DEA and DOJ.” It also wants the court to order judicial
review of the company’s order to show cause and a “finding that MMJ met its
burden for issuance of the manufacturer registration under applicable law.”
Barrington, Rhode Island-based attorney Megan Sheehan is representing the
company in the matter.
In November 2022, a federal judge in Rhode Island dismissed the company’s civil
suit against the government for lack of subject matter jurisdiction.
MMJ BioPharma isn’t alone in its frustration over the federal government’s
protracted cannabis bureaucracy. For years, bipartisan congressional lawmakers
have bemoaned DEA’s delays, especially for its failure to license more
cultivation for research purposes.
In 2019, Rep. Buddy Carter (R-GA), slammed DEA as the “epitome of ineptitude,”
saying the agency was “failing the American public” by failing to reschedule
cannabis.
A year later, 11 bipartisan members of Congress sent a letter saying that DEA’s
sluggishness was costing America jobs.
Lawyers for MMJ BioPharma argue that DEA has failed to meet its obligations
under federal law, including cannabis research legislation, the Medical
Marijuana and Cannabidiol Research Expansion Act (MCREA), that President Joe
Biden signed into law late last year in order to expedite the research licensing
process.
And in recent years, several more research growers have obtained licenses. Today
DEA lists eight “bulk approved marihuana growers” on its website, though critics
say production is still severely limited.
Read MMJ BioPharma’s full complaint against the federal government below:
> UN Never Bothered Canada About Legal Marijuana Violating Treaties, Prime
> Minister Says As U.S. Weighs Rescheduling’s International Implications
Photo elements courtesy of rawpixel and Philip Steffan.
Marijuana Moment is made possible with support from readers. If you rely on our
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pledge.
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Ben Adlin
Ben Adlin, a senior editor at Marijuana Moment, has been covering cannabis and
other drug policy issues professionally since 2011. He was previously a senior
news editor at Leafly, an associate editor at the Los Angeles Daily Journal and
a Coro Fellow in Public Affairs. He lives in Washington State.
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