Federal Court Dismisses Lawsuit Against DEA Over Proposed Psychedelics Ban

A federal court has dismissed a case challenging the constitutionality of the Drug Enforcement Administration’s (DEA) process for adjudicating scheduling actions as the agency seeks to ban two psychedelic compounds.

In an order of dismissal that was filed in the U.S. District Court for the Western District of Washington on Thursday, Judge Ricardo Martinez said plaintiffs in the case had failed to abide by a directive to secure legal counsel by a court-imposed deadline, so the suit will not proceed.

This comes about two weeks after DEA formally cancelled the administrative hearing on its controversial plans to classify 2,5-dimethoxy-4-iodoamphetamine (DOI) and 2,5-dimethoxy-4-chloroamphetamine (DOC) as Schedule I drugs under the Controlled Substances Act (CSA).

That cancellation was a response to a DEA administrative law judge staying the proceeding in light of the now-dismissed lawsuit, so it’s possible the hearing could now be rescheduled.

PPS had contested the administrative hearing process that is preceding final rulemaking, arguing that DEA’s reliance on administrative law judges to settle such arbitration is unconstitutional based on U.S. Supreme Court precedent.

In its order on Thursday, the court didn’t speak to the merits of the legal challenge; rather, it focused on the fact that the plaintiff, Panacea Plant Sciences (PPS), didn’t obtain counsel by a May 16 deadline it set, even though they had “more than enough time” to do so.

“Considering that, and the nature of this case—Plaintiff requesting a TRO to stay regulatory action, and that action being stayed pending the resolution of this case—the Court finds that Plaintiffs have violated the Court’s Orders, the local rules, the spirit of the local rules, and otherwise failed to prosecute this action under the above law,” Martinez said. “The Court further finds that Plaintiffs’ current request amounts to ‘an end run’ around the counsel requirement and that such request should not be granted given the procedural history of this case.”

The plaintiffs had advised the court that they “contacted numerous attorneys/lawyers in Washington state, but none have been willing to go on the record against the DOJ/DEA and have asked not to be named.”

It’s unclear what DEA’s next move will be in the psychedelics scheduling proposal, but PPS CEO David Heldreth told Marijuana Moment on Friday that he intends to appeal the court’s decision to the U.S. Court of Appeals for the Ninth Circuit.

This is the latest development in a years-long dispute over DEA’s efforts to schedule the psychedelics, which it first attempted to do in 2022, only to withdraw the proposal amid pushback from the scientific community. The agency separately withdrew from a proposal to ban five different tryptamine psychedelics in 2022.

Last December, DEA announced that it would be trying to enact the DOC and DOI ban again. The agency’s notice about the scheduling proposal still lacks evidence that directly connects the compounds to serious adverse health events or demonstrated a high abuse potential.

“To date, there are no reports of distressing responses or death associated with DOI in medical literature,” it says. “The physiological dependence liability of DOI and DOC in animals and humans is not reported in scientific and medical literature.”

DEA said that anecdotal reports posted by people online signaled that the substances have hallucinogenic effects, making it “reasonable to assume that DOI and DOC have substantial capability to be a hazard to the health of the user and to the safety of the community.”

It did point to one report of a death of a person who had used DOC in combination with two other unspecified drugs—as well as two reports of hospitalizations that it said were attributable to the use of DOC with other drugs—but scientists say that hardly constitutes reason enough to place them in the most strictly controlled schedule.

In the background of this development, the Justice Department is now taking public comment on its proposal to move marijuana from Schedule I to Schedule III under the CSA. It’s expected that an administrative hearing will be similarly scheduled once that’s complete, as multiple interested parties—including former DEA leaders and state attorneys general—have made the request.

The requests, which comes on the heels of a leading prohibitionist group attempting to extend the public comment period on the rescheduling proposal, are seen by reformers as a way not only to push back on the Biden administration’s rescheduling plan but also to potentially delay the formal implementation of the action amid an effort by opponents to shoot it down.

Read the court order of dismissal in the DEA psychedelics scheduling case below:

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Photo courtesy of Wikimedia.