The Justice Department is defending the Drug Enforcement Administration’s (DEA) decision to fire an “outstanding” special agent after 16 years of service because he tested positive for THC after taking a CBD product for pain that he said he believed to be legal hemp.
That agent, Anthony Armour, filed a lawsuit against DEA in May, seeking a reversal of the termination on several grounds, including a lack of “substantial evidence” that he used an illegal drug, as well as mitigating factors such as his professional record.
DEA doesn’t see it that way, though. In a response brief submitted to the U.S. Court of Appeals for the Federal Circuit, the agency asserted that Armour’s “arguments are without merit and improperly invite the Court to ignore well-established Federal drug policies and to reweigh the evidence in contravention of the standard of review.”
“Mr. Armour was an outstanding DEA agent when he took a chance in 2019. He believed it was unlikely that CBD products would cause him to test positive for marijuana, but he knew it was possible, and he bought those unregulated products on the internet and consumed them anyway,” DEA attorneys said. “Mr. Armour argues that he ‘displayed negligence or poor decision-making,’ and DEA properly held him accountable for his poor decisions when they resulted in a verified positive drug test. DEA lost trust in Mr. Armour and properly removed him.”
“This was an unfortunate ending to a lengthy and productive career in Federal law enforcement. But DEA is charged with enforcing our Nation’s drug laws, and Federal employees are responsible for what they put in their bodies,” the filing says. “There is a clear and genuine nexus between a removal for illegal drug use and the efficiency of the service at a drug enforcement agency.”
While Armour disputed the idea that there’s a nexus between his use of a CBD product and DEA’s objectives, the agency said that the “critical sensitive nature” of his position with the agency meant that “there is a genuine nexus between his removal for using illegal drugs and the efficiency of the service.”
DEA acknowledged that Armour may not have intended to use an illegal drug, but said that because he knew the product contained at least trace amounts of THC, the consumption was “reckless” and warranted removal.
Notably, the agency relied on a Reagan-era executive order to define an “illegal drug,” which is any Schedule I or Schedule II controlled substance that is not prescribed. Attorneys have raised questions as to whether federal employees like Armour would continue to face such penalties for marijuana if it’s moved to Schedule III, as the U.S. Department of Health and Human Services (HHS) has recently recommended to DEA as part of any ongoing scheduling review.
“It is unremarkable that the DEA would regard it as serious misconduct for an employee to use illegal drugs with any level of culpable intent, whether that is done with intent, knowledge, recklessness, or negligence,” the new brief says. “Mr. Armour’s arguments falsely equate his lack of criminal intent with innocent ingestion and gloss over his own culpable intent.”
Again, the agency reiterated that Armour “had 16 years of service, had received outstanding performance ratings for three years, and had submitted letters of support from supervisors and colleagues.”
But while those facts could be considered mitigating factors, DEA said it did not “rise to a level that justifies mitigating the overall penalty.”
Matt Zorn, an attorney representing Armour, told Marijuana Moment on Friday that DEA and its administrator have said they “want to focus their resources on fighting the opioid epidemic.”
“One wonders then, why they are in federal court defending the termination of a special agent who was taking these dangerous drugs off the street for doing nothing other than, for his pain, ingesting a product advertised as CBD oil that, unbeknownst to him, would test right at the border between hemp and marijuana—precisely because he didn’t want to use opiates,” he said.
Since the agent’s termination in 2020, DEA has clarified that its agents aren’t allowed to use CBD because of the risks of mislabeling and accidental THC exposure. Notably, the agency did amend its policy for job applicants in 2021, updating a questionnaire to only ask about hemp and cannabidiol use prior to the crop’s federal legalization in December 2018.
DEA is also actively preparing for broader rulemaking on cannabis post-hemp legalization, with an official saying earlier this year that the agency will be clarifying that synthetic cannabinoids are considered illegal controlled substances, while separately moving to decontrol synthetic CBD with up to 0.1 percent THC.
But as of now, DEA is being most closely watched in the context of a marijuana scheduling review that President Joe Biden directed last year.
After completing a scientific review into cannabis, HHS determined that cannabis would be more appropriately placed in Schedule III of the Controlled Substances Act (CSA). It recently handed off its findings and recommendation to DEA, which says it is now carrying out its own review before making a final scheduling decision.
For the time being, though, the response brief in Armour’s case underscores how the agency is strictly abiding by the laws for marijuana as a Schedule I drug. (Full Story)