ALJ Sets Schedule and Ground Rules for Evidentiary Hearings on Marijuana Rescheduling

After months of uncertainty and what Administrative Law Judge John J. Mulrooney called “spirited motion practice by the Designated Participants,” we finally have some clarity on the path forward toward the potential rescheduling of marijuana. Following a preliminary hearing on December 2, 2024, on December 4, 2024, Judge Mulrooney issued a Prehearing Ruling (“Ruling”) pursuant to 21 C.F.R. § 1316.55, which set the table for the evidentiary hearings to be convened early next year on the DOJ’s proposed rulemaking to reschedule marijuana from Schedule I to Schedule III of the Controlled Substances Act. Critically, the Ruling establishes the dates for the hearing and identifies which participants will be entitled to provide testimony on each date. As stated in the Ruling, the purpose of the hearing, which will be convened over several weeks, is to “receive factual evidence and expert opinion testimony regarding whether marijuana should be transferred to Schedule III under the CSA.”

The hearing will commence on January 21, 2025, and continue daily from 9:30 AM to 5:00 PM on Tuesday through Thursday of each week until March 6, 2025, with a one-week break scheduled for the week of February 11. As the proponent of the proposed rescheduling rule, the government will present evidence and testimony on the first day of the hearing. The full schedule of witnesses is as follows:

Key ground rules for hearing participation and administration include the following:

• The hearing will be convened at the DEA Hearing Facility in Arlington, VA, pursuant to the notice of hearing.
• Any testimony not summarized in prehearing statements may (and, according to the Ruling, likely will be) excluded at hearing.
• All parties must serve upon each other any of the documents noticed in their prehearing statements by January 3, 2025, and any documents not timely supplied to the other Designated Participants or the court may (and, according to the Ruling, likely will) be excluded at the hearing.
• Each party will have 90 minutes to present the testimony of their witness, which may be preceded by a two-minute opening statement by counsel.
• Any party scheduled to present a witness must be physically present in the courtroom on the designated date, even if the witness for that party will participate virtually.
• At the conclusion of a party’s presentation, counsel or the designated representative for the party may be afforded either a 10-minute closing argument or the opportunity to submit a brief not to exceed 25 pages within 5 days following the witness’s presentation.
• Cross-examination of witnesses will generally be limited to matters covered on direct testimony and be limited to 20 minutes for each party on the opposing side of the issue presented by the witness. Any representative seeking to cross-examine an opposing witness must be physically present in the courtroom.

We will monitor for any additional prehearing rulings issued by Judge Mulrooney in the coming weeks and will cover key testimony as the hearings kick off at the beginning of the new year.