As I have previously written, there is a long list of regulatory changes coming from DEA in the next few years.  Rather than publish one or more of the long overdue regulations listed on DEA’s Regulatory Agenda, on April 30, 2019, the agency will publish a Final Rule creating a “discretionary review” process allowing the Administrator to review an Administrative Law Judge’s (“ALJ’s”) denial of a request for an interlocutory appeal.  Note that this is a Final Rule, not a Notice of Proposed Rulemaking.  The agency was able to bypass the traditional notice and comment rulemaking process by categorizing this rule as a Rule of Agency, pursuant to the Administrative Procedure Act.  As such, the rule is effective immediately.

Requests for interlocutory appeals can take many forms in a DEA administrative proceeding.  Often, they are a result of a procedural or evidentiary ruling by an ALJ during the prehearing process.  DEA regulations currently give ALJs broad authority to rule on a request to seek an interlocutory appeal.  The ALJ’s decision to deny a request for an interlocutory appeal is not reviewable.  Until now.

This new rule will allow the Administrator to intervene in administrative proceedings and review an ALJ’s decision to deny a request for an interlocutory appeal.  DEA justifies the need for this change in regulations by stating it is needed for the “efficient execution of the administrative hearings.”  DEA further states that the rule attempts to preserve “the Administrator’s authority to be the final decision-maker as to important legal questions.” (emphasis added).

While that may be the desired impact, the rule may have the opposite effect.  If the Administrator issues an order regarding an interlocutory appeal as the “final decision-maker” does mean that such orders could be considered “final agency actions” that allow the parties to appeal the order to federal court?  If so, the efficient execution of proceedings will grind to a halt while the matters are resolved (for years?) on appeal.

It is difficult to understand why this rule became a priority, especially when so many important regulations remain pending with DEA and the Department of Justice.  With so few administrative matters being initiated by DEA, so few matters going through the administrative hearing process, and even fewer instances of parties seeking interlocutory appeals during proceedings, why expend resources on this rule?

One school of thought is that this is in direct response to a recent (and public) “dispute” involving an ALJ’s denial of a request for an interlocutory appeal by DEA’s counsel seeking to quash a subpoena issued by the ALJ.  The matter landed in federal court where DEA was ultimately unsuccessful in overturning the ALJ’s subpoena.  With that said, and despite being ordered to do so by a federal judge, DEA did not produce the subpoenaed documents.  Full disclosure: I was involved with that case: Miami-Luken, Inc. v. Drug Enforcement Agency Order (1:16-mc-00012-SJD-SKB)

If the Miami-Luken matter was the impetus behind the rule, it is hard not to see this rule as an attempt at whittling away at the independence of the agency’s ALJs – which does not bode well for registrants.  Yes, both sides could arguably benefit from this rule, but my experience with these proceedings leads me to believe that the government will be the primary beneficiary of the Administrator’s discretionary review.  I hope I am wrong.