Oyez, Oyez, Oyez! Effective August 1, DEA Will Have No Administrative Law Judges

Last week, DEA registrants and applicants with pending actions before DEA’s Office of Administrative Law Judges (OALJ) received an order from Chief Administrative Law Judge John J. Mulrooney, II, staying the hearing proceedings in those cases.  In those orders, Chief Judge Mulrooney announced that he was retiring from the bench effective August 1, 2025, and that, in the absence of any other DEA ALJs, all proceedings and hearing dates are postponed indefinitely.

The OALJ, which historically has maintained a heavy yet efficient workflow of complex diversion and drug scheduling cases, had a total of three ALJs in January prior to the change in administration in January 2025.  Since then, the number of ALJs quickly declined, leaving as of this summer Chief Judge Mulrooney as the sole tribunal overseeing a busy docket that typically requires multiple ALJs.

As a reminder, the OALJ is responsible for not only presiding over orders to show cause against DEA registrants, but also actions related to DEA decisions on imports, exports, drug scheduling, and issuing quotas.  Where does this leave DEA and all of the DEA registrants with pending or contemplated administrative actions?  It’s a bit too early to tell, but it is unlikely that the pending show cause matters will be resolved anytime soon; and, although less frequent, it creates a void for registrants who would want to challenge the other types of decisions identified above.  Under the Controlled Substances Act and DEA’s implementing regulations, proceedings to deny, revoke, or suspend a DEA registration must be conducted pursuant to the hearing procedures delineated in the Administrative Procedure Act as set forth in 5 U.S.C. §§ 551-559.  See 21 U.S.C. 824(c)(4); 21 C.F.R. § 1316.41.  And DEA’s implementing regulations require that a “presiding officer,” defined as an administrative law judge qualified and appointed as provided in 5 U.S.C. § 556, must conduct administrative enforcement hearings.  21 C.F.R. §§ 1316.42(f); 1316.52.

DEA must either (1) hire and appoint new ALJs to fill the vacant bench, or (2) appoint ALJs from other federal agencies to hear these cases.  But both options take time, and we believe that litigants facing orders to show cause or immediate suspension orders (ISOs) may not obtain relief for a period of time.  This, of course, can impact the due process rights of the parties, particularly recipients of an ISO and applicants for new DEA registrations which have been denied.  Individuals or entities facing pending administrative actions with the DEA should consider and evaluate with experienced counsel the impact that an “indefinite” stay may have on their cases as well as potential recourse.