“A Rose by Any Other Name. . .”; DOJ Argues DEA is Not an Agency

February 27, 2023By John A. Gilbert

One misnomer that has been repeated over the years has been the reference to the “Drug Enforcement Administration” (“DEA”) as the “Drug Enforcement Agency.”  This error has appeared not just in articles and other news publications but in some court documents as well.  The DEA has even made the same mistake.  Default Provisions for Hearing Proceedings Relating to the Revocation, Suspension, or Denial of a Registration; Correction, 87 Fed. Reg. 73246 (Nov. 29, 2022).  Interestingly, this same issue does not appear to have occurred with the Food and Drug Administration, in that, I am not aware of erroneous public references to the “Food and Drug Agency.”

This faux pas may take on new meaning given that recently the Department of Justice (“DOJ”) and DEA have argued that DEA is not an “agency” after all.  In a case involving a challenge to a Freedom of Information Request (“FOIA”) submitted to DEA, the DOJ and DEA appear to now argue that DEA is a “component” of the DOJ and not an agency.  Aims Institute, PLLC, v. Merrick Garland, et. al, Case No. 4:2022-cv-02396 S.D. Tex. (2023).  In an erratum filed to the deposition of an official previously self-identified as the Chief FOIA Officer, the government stated that the individual was in fact, not the Chief FOIA Officer for DEA but Chief of the FOIA/PA Unit at DEA.  The errata further stated that the Chief FOIA Officer was Vanita Gupta, Associate Attorney General of DOJ.  Also, the errata stated that DEA is a “component” of DOJ not an agency.

I refer you to the pleadings in the case and the recent motion filed by the Plaintiff that discusses the merits of the argument as to why DEA is an “agency” and should be held to statutory and regulatory requirements of any administrative agency.  The arguments in this case also highlight a longstanding frustration with obtaining FOIA information from the DEA.  In many cases, it appears DEA does not have the resources or infrastructure to maintain and produce the information to respond to FOIA requests as do other administrative agencies such as FDA.  DEA has always been somewhat unique in that arguably it is primarily a law enforcement agency that has been “burdened” with serving as an administrative agency tasked with regulating manufacturers, distributors, pharmacies and practitioners.

This case may have deeper ramifications on many of DEA’s administrative functions if there is a finding that DEA is not an agency.