While a great deal of attention is given to DEA Chief Administrative Law Judge Mulrooney’s (“CALJ Mulrooney’s”) opinion regarding the impact of the Ensuring Patient Access and Effective Drug Enforcement Act on DEA enforcement efforts, very little attention has been afforded a shocking and unprecedented attack by a sitting DEA Administrative Law Judge on DEA’s formal administrative hearing process found within the same article.

Hidden in plain sight at the end of CALJ Mulrooney’s and Ms. Katherine Legel’s soon-to-be-published law review article is a thirty page attack on the procedures that govern DEA administrative hearings, substantive decisions in final agency decisions, and the individuals assigned to draft final agency decisions on behalf of the agency.

Here are a few of the more serious accusations and criticisms CALJ Mulrooney levies against DEA’s administrative hearing process. The following are taken verbatim from the draft law review article available at the time of this posting.

Procedural Matters

• The fact that the Agency’s rudimentary hearing regulations exist today substantially as they did when first promulgated over four decades ago tends to magnify the significance of the increasingly ubiquitous procedural edicts that the Agency disseminates through adjudication final orders.
• By dropping new duties unceremoniously in the midst of an adjudication, the Agency is spared the laborious tasks of publishing its now-established new registrant duties in the Federal Register, explaining and defending its actions in annotated commentary, and having to address potentially disquieting comments from the public, including the regulated community. Likewise, the Agency is spared the arduous internal approval process attendant upon promulgation, including review of those in the executive branch charged with evaluating the possibility for potential responsive congressional action. Under this approach, those arduous undertakings are supplanted by the more efficient act of placing the Administrator’s signature on the adjudication. Just like that.
• Irrespective of the relative merits of the Agency’s apparent disregard of the time-honored litigation convention of honoring concessions made by the representatives of the parties, it is presently unclear whether any concession or stipulation tendered by DEA counsel can be afforded any weight by conscientious opposing counsel.

Administrator’s Staff/Perception of Unfair Treatment of Respondents

• Despite the defined structure and delineated responsibilities described previously, with increasing frequency in final orders issued by the Agency, every credibility, evidentiary, and procedural ruling, is being re-weighed, evaluated, and frequently reversed on final order review. Additionally, the Agency has demonstrated an increasing proclivity for conducting active litigation outside the reach of the ALJ; it has become increasingly frequent practice for the Administrator’s staff to direct the parties to submit evidence and brief legal issues that were not raised in front of the DEA ALJ. In so directing, the anonymous staff members step into the role of pseudo-ALJs and manage contested litigation—without offering any of the protections that the ALJ structure affords to litigants.
• However well intentioned, even copious, highly-nuanced legal verbiage carefully set out in a final order could do little in dissipating the appearance that the potential for disparate treatment is exacerbated where evidentiary determinations and briefings are conducted by those not charged, qualified, or even permitted under the law to preside over litigation.
• To the extent that decision drafters in the Agency are regularly conducting internet searches to glean information that is seamlessly incorporated into Agency final orders, this may run in some tension with the restrictions of the APA.
• There is little doubt that the Agency’s more recent final orders could be read as conveying an increasing discomfiture with the decisional independence of its own independent ALJs.
• It is hardly hyperbole to observe that the fostering of an environment where the Agency’s final orders communicate hostility towards recommendations not to its liking by its own ALJs does not further the purposes of Congress in creating a recommended decisional structure. The obvious concern in the gratuitous chastisement of ALJs by their employing agency is that intemperate language set forth in published Agency final orders risks the perception that the Agency is seeking an improper means to impact future hearing decisions.
• In conjunction with the more recent practice of the Agency revisiting all of the evidence and making findings without regard to the findings of the ALJ, such practice conveys the message (accurate or not) that the underlying purpose could be to bully the ALJs into issuing recommended decisions more in line with the wishes of the Agency and its Administrator.
• The Agency’s decision to embrace a more robust view of its ability to find facts without a hearing, like its increasing inclination to disregard the factual and legal findings of its ALJs, may significantly impact the manner in which both sides litigate administrative enforcement cases before the Agency in the future.

My Thoughts

The detailed and well-supported criticisms by CALJ Mulrooney certainly raise serious questions about the independence of DEA ALJs, whether the “anonymous staff members” responsible for drafting final orders are exceeding their authority, whether ex-parte communications take place between DEA counsel and the employees writing the final agency decisions, and whether the actions and decisions written by these employees render the administrative proceedings fundamentally unfair for respondents.  Certainly, a prudent counsel with current or future matters before the agency will not take sides in this seemingly long-running dispute between the Office of Administrative Law Judges and the Office of the Administrator. 

With that said, counsel appearing before the agency would be wise to read this law review article (or at least the last thirty pages). Clients must be counseled on the pitfalls and roadblocks when requesting a hearing before DEA. That is not to say that registrants should not challenge Orders to Show Cause. Rather, registrants and their counsel must go forward with a defined, long-term strategy and clear understanding that the system may be rigged against them. It will be interesting to see if CALJ Mulrooney’s criticism of the process will result in an internal review of the administrative hearing process either by DEA, the Office of Professional Responsibility, or the Office of the Inspector General.