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As a designated participant, Ellen Brown was supposed to present her expert witness to testify on Jan. 28 before an administrative law judge (ALJ) overseeing the cannabis rescheduling hearing.

A U.S. Air Force veteran and long-standing medical cannabis advocate, Brown viewed this as a generational opportunity to change cannabis’s Schedule I status under the Controlled Substances Act, where the plant has remained alongside heroin, LSD and ecstasy for the past 50-plus years.

“We had a very rare opportunity to put forth the best case that we could and see what results there were to be gained, and what was going to be fostered from the back-and-forth of the opposition and those that were the proponents,” Brown said. “[We were going to see] as a nation where we’re at with this conversation.”

John J. Mulrooney, the Drug Enforcement Administration’s (DEA) chief ALJ tasked with overseeing a fair and transparent hearing to consider the merits of the Department of Justice’s (DOJ) proposal to reclassify cannabis as a Schedule III drug, approved Brown’s witness, Dr. Marion McNabb, earlier this month.

As the principal investigator of eight real-world cannabis research studies examining why and how medical patients and consumers use cannabis, McNabb was scheduled to provide Mulrooney with her expertise on the plant’s merits to be relisted, from its potential for abuse to its currently accepted medical uses.

“It was going to be of vital importance for those expert witnesses to get up and be able to give that information not just for the ALJ but the American public,” Brown said.

This opportunity was upended by an interlocutory appeal request that Cannabis Business Times first reported on Jan. 8.

Brown first learned that her name was connected to a motion that sought the interlocutory appeal in the cannabis rescheduling hearing through reading news articles on Jan. 8, she said.

“I was in no way happy that this had been done without my knowledge or consent,” Brown said. “And I really didn’t understand the repercussions of the motion being filed. This was supposed to be about ex parte communication between the DEA and SAM [Smart Approaches to Marijuana]. This new component to it was never discussed.”

Two days earlier, her counsel, Matthew Zorn, a partner at Yetter Coleman LLP, joined a motion on behalf of another client that asked for Mulrooney to reconsider the DEA’s role in the hearing as the proponent of the DOJ’s Schedule III proposal under the Controlled Substances Act. The motion attempted to oust the DEA from the hearing.

Attorney Shane Pennington, a partner at Porter Wright Morris & Arthur LLP, authored the motion to reconsider, with edits provided by Zorn, in light of new evidence claiming the DEA conspired with anti-rescheduling designated participants to stack the deck in favor of prohibitionist groups.

Although Brown said she did not know about or agree with the motion, her name ended up being attached to it by mistake.

“I wasn’t a part of the discussion or even aware of the document that was being created for the ex parte communication or for the interlocutory appeal,” Brown said.

In part, the movants argued in their motion that various pro-rescheduling parties that sought to participate in the hearing process received no response from the DEA while at least one anti-rescheduling party, the Tennessee Bureau of Investigation, received assistance from the DEA in securing its qualification as an interested party.

Still, Brown said that it didn’t make sense to her to “penalize the entire process,” and therefore she didn’t want to be associated with the interlocutory appeal.

“This is something that had I known about the repercussions, I would’ve never agreed,” Brown said. “And it became kind of a conversation where it was almost like, ‘Well, that’s why I didn’t ask you because I knew you wouldn’t agree.’”

Zorn accepted an interview with CBT but declined to comment on the record.

Although Brown’s name wasn’t explicitly mentioned in the motion to reconsider, she became associated with the motion through the inclusion of an inadvertent “et al.” next to Zorn’s name on the filing, meaning “and others.”

Specifically, Zorn represents a consolidated group of pro-rescheduling designated participants in the hearing: the Connecticut Office of Cannabis Ombudsman (OCO), The Doc App (d/b/a My Florida Green), and Ellen Brown.

The motion to reconsider listed Village Farms International, Hemp for Victory and “OCO et al.” as the movants filing the request for relief. As a result, Mulrooney issued a briefing order regarding the motion that specifically included Brown’s name.

Pennington, who represents Village Farms, explained the inadvertent filing error in a declaration he submitted on Jan. 23, providing a timeline of back-and-forth emails among him, Zorn and associated paralegals assisting in the motion to reconsider leading up to its Jan. 6 filing.

Pennington states in the declaration that at 7:51 a.m. EST on Jan. 6, “Mr. Zorn e-mailed me with a response to my inquiry regarding which of his clients intended to join the motion, explaining that ‘I’m double checking, but probably OCO only.’”

However, nearly three hours later, Zorn sent back a draft of the motion with his edits and comments, but those edits did not make changes to his signature block identifying himself as “Counsel for Designated Participants OCO et al.”

The inclusion of the “et al.”—essentially a typo in this instance—never got fixed.

After the motion was filed, Brown said, “All of my concerns were pretty much brushed aside.”

Although Mulrooney denied the movants’ requested relief for the ex parte communication claims, he approved the movants’ request for the interlocutory appeal on Jan. 13, ordering a minimum 90-day stay in the hearing.

“What has happened now is a manifest of justice,” Brown said. “Both sides [may] not be heard in this case. We don’t know if this will happen—if this will get rectified in the next 90 days when the stay order is done—or if this will never be seen again. We’ve been here for over 50 years, and this is the closest we’ve had. So, I feel crestfallen that my name was used to make this happen, especially without my consent or my knowledge.”

Brown also said, “This was supposed to be to preserve the record, not derail the hearing. … I vehemently disagreed with the interlocutory appeal.”

This delay in the rescheduling process has pitted pro-reform advocates against one another, including Khurshid Khoja—legal counsel representing pro-rescheduling designated participant National Cannabis Industry Association—bashing the interlocutory appellants for engaging in a “procedural sideshow.”

Although Brown never consented to her name being among the interlocutory appellants, many assumed she did because of the “et al.” inclusion in the filing as well as Mulrooney calling her out directly.

“After the stay order went into place … a bunch of news articles started coming out saying … this is what Ellen Brown believes in. This is what Ellen Brown has done,” Brown said. “And this crushing weight came over me because this is not what Ellen Brown believes in. This is not what Ellen Brown has done. I spoke with Ellen Brown quite recently and nobody asked her.”

That’s when Brown started researching how to go on the judicial record to remove herself from the motion.

On Jan. 13—the same day Mulrooney granted the interlocutory appeal—Brown said Zorn informed her that her name was “mistakenly added to the motion.” After Mulrooney issued the stay order, Brown said she questioned whether Zorn had her best interest in mind and researched if what transpired was even legal.

Zorn told CBT that he hasn’t had a chance to substantively respond to recent filings regarding Brown’s inclusion in the motion, but he plans to do so this week.

Brown said she asked Zorn on Jan. 14 to be removed from the motion.

On Jan. 15, Zorn filed a notice of clarification stating that only the OCO was meant to join the recently filed motion to reconsider authored by Pennington.

“The motion’s unfortunate reference to ‘OCO et al.’ was due to an inadvertent clerical and communication error,” Zorn wrote. “Brown did not support the motion, does not support an interlocutory appeal, and does not support a stay.”

Zorn also said he was withdrawing his representation of Brown, who originally consolidated with the other designated participants under Zorn’s legal counsel after Mulrooney ruled that she lacked sufficient standing under the Administrative Procedure Act (APA) to independently continue in the hearing proceedings as a standalone designated participant.

Zorn confirmed with CBT on Jan. 27 that he is still representing The Doc App.

On Jan. 16, Mulrooney responded to Zorn’s clarification: “It is challenging to understand how such a communication failure could have occurred between Mr. Zorn and one of two or three clients,” the judge wrote. “In short, to the extent Brown sought to be heard in these proceedings, Mr. Zorn’s ‘clerical and communication error’ has placed her in quite a pickle.”

Brown filed a request for leave on Jan. 19, asking Mulrooney to reconsider his initial determination that she did not possess sufficient APA standing to continue independently in the proceedings; and time and leave to identify another potential designated participant to consolidate with so she can continue her participation.

Mulrooney denied the first request but granted the latter, calling her representation under Zorn “suboptimal.”

“Ms. Brown currently stands in an untenable situation that does not appear to be of her own making,” Mulrooney wrote, giving her until Feb. 12 to consolidate with another designated participant for the hearing process.

However, making Brown’s pickle even more complicated, Mulrooney issued an order on Jan. 13 stating that Zorn did not file OCO et al.’s proposed exhibits correctly, deeming them as being “not timely provided,” and that the tribunal reserved the right to issue potential sanctions for noncompliance.

Brown said this caused a ripple effect in her pursuit to consolidate with a different designated participant.

“Right now, I would be reconsolidating with no exhibits, which wouldn’t be palatable to any kind of a partnership,” she said. “I have very little to bring to the table outside of a wonderful expert witness who can only speak to the exhibits that are accepted into the record. So, Dr. McNabb might sit there, and [Mulrooney] might just hit his gavel and tell her to go away. ‘You can say your name and then you can leave.’ What do you have to talk about if you don’t have any accepted exhibits?”

That said, Brown intends to send the ALJ a motion on Jan. 28—the same day she was originally scheduled to offer McNabb for expert testimony—asking if the judge will allow an out-of-time motion to properly file her exhibits and provide good cause for independent participation.

Still, there’s a possibility that Brown will lose her opportunity to participate. She said this represents potential collateral damage from the interlocutory appeal.