DEA Calls Cannabis Rehearing Bid a Prohibitionists’ “Fishing Expedition”

WASHINGTON – The Drug Enforcement Administration submitted a new brief, urging Chief Administrative Law Judge Derek C. Julius to reject a request to reopen the federal marijuana rescheduling hearing, calling the demand an “obvious fishing expedition.”

The filing was a direct response to a motion from anti-rescheduling groups like DUID Victim Voices, physician Kenneth Finn, M.D., the National Drug and Alcohol Screening Association (NDASA), alongside Smart Approaches to Marijuana (SAM) and several states who argued that a recent federal watchdog report justifies additional testimony and document discovery.

That Government Accountability Office (GAO) report, published September 23, found that neither the DEA nor the FDA maintains formal written policies governing how staff conduct drug scheduling evaluations. The opposing groups contend those findings demand deeper scrutiny of how federal agencies assessed Cannabis and arrived at a recommendation to transfer it from Schedule I to Schedule III.

The DEA’s response is straightforward.
The report flagged gaps in documentation, not flaws in the actual scientific analysis.
Allowing further discovery, the agency argued, would give opponents a “second bite at the apple” they already forfeited by not fully pressing their cross-examination of Dr. Dominic Chiapperino – a senior FDA scientist whose hearing testimony underpinned the scientific case for reclassification.

The agency also argued that the Administrative Procedure Act bars broad discovery or record supplementation after formal testimony has closed, unless an agency acted in bad faith or left a record too thin for judicial review. Neither condition, the DEA maintained, has been established.

The hearing itself ran 11 days between late June and mid-July. A nonbinding recommendation from Julius to DEA Administrator Terry Cole was expected in September. Instead, Julius issued a stay on September 29 after the same prohibitionists requested a pause. A final opposition reply landed October 21, completing the current round of written arguments. The decision on reopening now rests with Julius alone.

Anti-rescheduling parties pushed back on the “second bite” framing, arguing the first opportunity was constrained. They say the DOJ’s Office of Legal Counsel had blocked lines of inquiry into the FDA’s scientific methodology during the original hearing.

The broader rescheduling backdrop remains complex. In April, Attorney General Todd Blanche issued an order immediately reclassifying state-licensed medical Cannabis and FDA-approved adult-use Cannabis products to Schedule III – a partial shift that took effect before the administrative hearing concluded. Julius’s process addresses the wider reclassification of Cannabis overall. A congressional committee voted to restrict further federal action on rescheduling, though bipartisan lawmakers have signaled they do not expect that restriction to survive into law.

Obviously, this is a procedural war of attrition, and the DEA is playing it straight. The agency built its rescheduling case across years of scientific review and a multi-month hearing. It has no interest in reopening those proceedings over what it characterizes as a GAO bookkeeping audit. For the Cannabis industry, the more pressing concern is duration.
Every additional delay on Julius’s recommendation translates into another quarter of regulatory uncertainty for operators and investors still waiting for the full commercial and financial implications of Schedule III classification to take shape.