How Anthony Got His Job Back
Also, Matt Does a Reddit AMA
A couple weeks ago, the New York Times ran a story about my client, Anthony Armour.
Anthony worked for DEA in law enforcement. Nearing retirement, after nearly 15 years of work at DEA taking opioids off the street, he had chronic pain. But from his work, he knew the danger of long-term opioid use. So, after the 2018 Farm Bill, he began using CBD oil for the pain. And he lost his job for it.
He tested positive for marijuana. The positive result arose out of wonky issues with the testing and an inherent issue with testing itself. The THC result was only a hair over the legal THC limit. More important, drug tests for marijuana look for THC levels in urine. But these tests cannot distinguish between THC in hemp and THC in marijuana. Of course, hemp and marijuana are both cannabis.
I won’t bore you with details. The most important issue was that there was no dispute that Anthony had not intentionally used marijuana in the sense that he did not actively seek out marijuana. He genuinely believed that he had purchased legal CBD. Can you blame him?
In the administrative proceeding, Anthony failed to overturn the agency decision firing him. So, in Fall 2022, Anthony reached out to me—ironically, while I was at the annual cannabis industry bacchanal in Las Vegas—to see if I could handle the appeal. After reviewing his file, I did.
Unlike the FOIA case—where still, I claim 100% credit—most of the credit for getting Anthony his job back goes to an brilliant and hard-working associate at my firm, David Gutierrez. Albeit with some guidance and direction from yours truly, David did the lion’s share of the appeal briefing. It was amazing work. You should read the briefs. And, we had fantastic supporting staff as well. It was a (small) team effort.
So, why did I represent a former DEA agent? After all, I’m against everything and anything at DEA right? No, not even close.
Even if I believe DEA often acts in a misguided way, the agency and its agents do good and important work in many other regards. In these endeavors, it is paramount to not descend into all-or-nothing, black/white thinking or let one’s opinion of an institution with respect to other issues cloud one’s judgment.1
In Anthony’s case, he reached out because I had a unique skillset and understanding of the cannabis/hemp area directly relevant to his case. I reviewed the file. He was doing good, important work. And I agreed to represent him not only because the case presented a David vs. Goliath style challenge—which I love—but because I thought I had the right skills to get him his job back and it was the right thing to do based on my principles and values. Also, I believed I could do it. And, after some litigation and advocacy, in an amicable settlement, we did.
Major kudos also go to the Government as well as DEA for getting Anthony back to work fighting the opioid epidemic after we presented our legal case. Anthony was caught in the cross-hairs of some old, draconian policies, confusion in hemp/marijuana laws, and unfortunate bureaucracy.
That’s generally how I roll with my public interest engagements. Worthy client, worthy cause, advocate vigorously, and win—a time-tested formula for significant success. (Sometimes, however, I end up representing this jerk.)
And yet, some seem confused about why I do what I do or say what I say. For example, some think I’m against industry because I state truthful even obvious things about ill-conceived strategies, weak lawsuits not in the image of the above formula, or poorly designed legislation that doesn’t appreciate the issues. If I were for the industry or movement, I’d hold my tongue and drink kool-aid, they say.
But as I explain on the “About” page, pumping an industry or movement wing does not motivate me in these endeavors—even if there are positive externalities, such as a FOIA victory that triggered a 30% spike in cannabis equities. Rather, almost ten years ago:
[T]he person I was dating had a recurrence of a childhood bone cancer. After 2½ years together, 18 months living together, and a hospital bedside wedding, she passed away in June 2015 when I was 28. Suffice to say, through that harrowing experience, I witnessed first-hand the need to develop not just new medicines for pain, trauma, and all sorts of other conditions—but to bust paradigms that too often favors opiates and antidepressants over more promising drugs and other substances. And from my days as a law student, I knew how current federal drug laws impeded that progression.
I’m an IP and competition attorney by trade. I have an active, high-stakes commercial litigation docket. Most of what I do day-to-day has little to do with all this, even if I’m quite expert in controlled substance regulation from a legal standpoint. And I’m grateful for that—it allows me to do impactful work without having to rely on a complex.
I’m also grateful that across all my cases, in every case, I work with dynamic, passionate co-counsel—including the indomitable Shane Pennington. Through this work, I’ve gotten incredible opportunities. I’m a trial lawyer; yet I’ve gotten to argue several appeals. I’m thankful for my amazing clients; tenacious colleagues; and a special law firm that allows me to do continue this work that directly impacts people’s lives.
Okay, enough with gratitude. Being the ego-obsessed individual that I am, shortly after the publication of the Times piece, I did what any respectable, hard-working, narcissist lawyer does: I trolled the internet to see how the story was received. My search for validation landed me on the Reddit “weedstocks.” There, I saw a request for an AMA. Because I am a man of the people, after some fumbling on Reddit, I accepted.
Below are a few edited/expanded Q&As from the weedstocks AMA that ensued entitled “I’m Matt Zorn - The Lawyer That Sues the Government and Wins. Ask Me Anything. (Join me 2/1/24 at 1:00pm ET).” My answers should not only clarify important substantive points about marijuana rescheduling, but provide insight into what motivates me.
Q. Given your review of the 252 page HHS recommendation on rescheduling of cannabis which was sent to the DEA, assuming that the DEA does reschedule in accordance with the recommendation, do you feel these same arguments and approach could be applicable to psilocybin (ie. magic mushrooms) and therefore, be used legally to challenge its current schedule 1 status also? Also, do you feel that this particular rescheduling of cannabis could lead to other schedule 1 drugs being rescheduled down the road or is this really going to remain isolated with little outside ramifications?
A. Yes. This is a great observation and conceptual vindication of what is going on in states with natural psilocybin. Take note. The 252 page recommendation is a roadmap to rescheduling substances through state acceptance without FDA approval of a New Drug Application.
Shane made exactly this point in detail just days after Biden directed the AG and HHS Secretary to initiate the process to reconsider cannabis scheduling on October 6, 2022:
More fundamentally, reinterpreting federal drug control laws to prioritize state authority over medical judgments like currently accepted medical use would mark a significant shift in the balance of power over the practice of medicine in the United States. That shift would have important and immediate implications for several ongoing policy debates about who should control healthcare and the practice of medicine in the United States. A big deal? You better believe it.
Q. Is the DEA even able to deschedule cannabis completely, or is that only possible with an Act of Congress?
A. According to 21 USC 811(d)(1), a D.C. Circuit case called NORML II, and most recently, DEA's rule regarding rescheduling Epidiolex, no, DEA is not legally able to deschedule cannabis completely. But Congress can. This is a good read too: https://reason.com/2024/01/31/12-senators-urge-the-dea-to-legalize-marijuana-which-only-congress-can-do/
Q. Would the DEA be able to deschedule cannabis should the UN remove it from the single convention?
A. In this case, yes.
Q. Do you hold any cannabis stocks?
A. Nothing significant.
Q. What do you think are the odds that the DEA makes an interim final ruling vs a proposed rule? If it is a proposed rule, what is the timeline for it to become a final rule and what are the steps in between?
A. It wouldn’t be an interim final rule in this case, but simply a direct order under 21 USC 811(d)(1). As time goes on, the chances of a direct order are far more likely. The politics of this process cannot be ignored. A direct order would accelerate the timeline. A direct order would skip a notice-and-comment period and would, in effect, be like an IFR. It would likely also be appealable.
Q. Could you rate on a scale of 1 to 10 how likely the DEA is to accept HHS S3 recommendation (1 not likely - 10 very likely)
Not sure I'm comfortable giving a number, but I find it very likely it will accept the S3 recommendation. But as I've written and said in other forums, what S3 looks like is up in the air. It may not look like what everyone thinks, for example, DEA could craft a rule that reschedules medicinal marijuana but not all marijuana.
Q. If the DEA came out tomorrow and moved cannabis to S3, are there legal avenues that could delay any implementation from those who disagree with this decision? If there is some type of temporary stay via litigation (delaying benefits of S3 for US MSOs) how long could implementation be drawn out?
Yes. An interested party can file a petition for review of any final decision under 21 USC 877. The timeline for such an appeal depends on the Circuit. Some Circuits move quickly, others do not. It is also possible that a party requests a formal rulemaking hearing, which could draw out the process even more. There are too many variables to accurately predict the timeline.
Q. Assuming rescheduling to S3 is most likely, do you know if it would have any impact on the federal firearms prohibition for users of controlled substances?
A. It could, yes, but I think there remains the question of who is an "unlawful user" even with S3. I have been wanting the cannabis industry and/or movement to get more involved in these gun cases. Far better chances of success than the Boies suit.
Q. Some have speculated that an interim final ruling / final rule would allow for 280e tax obligations to go away retroactively to the beginning of the year that the ruling is made. Do you agree with this assessment and if so, how would it be handled by the IRS? Would businesses that deferred paying 280e taxes for years prior still be obligated to pay them?
A. No. Rescheduling doesn’t retroactively bless criminal conduct. I'm not sure what authority those folks are relying on.
Q. Are you aware of any other non legal means which may delay benefits of S3 for US MSOs that should be on our radar?
A. I’ve stated many times that Schedule III many not deliver any benefits to MSOs at all if the rescheduling only pertains to medicinal cannabis. I’m not sure the industry appreciates this risk. I don’t necessarily think it is likely, but it is possible. Indeed, there are scenarios where Schedule III backfires and could hurt the industry.
Q. Do you expect any sweeping changes under the directive of the DEA or FDA upon rescheduling? Are we looking at a whole new framework in terms of how medical cannabis businesses function (THC drugs vs. cannabis flower) or is it likely that they will respect state laws as they are today (medical dispensaries etc.)?
A. I don't expect FDA to get involved any more than it is now -- at least not immediately. I think in the long run we may see a new framework, but Congress is probably going to have to step in.
One More Thing…
Q. Is there anything we as a community did not ask that you think is important to know/think about, or anything you want to speak on that was not brought up? What is your driving force behind your fight for change? Is it a moral obligation or are you financed by a third party?
For this last one, I will break the Q/A format and write a revised longer answer, revisiting points and themes stated above. I’m sorry if this is repetitive. But it’s important.
Right now, I take no significant money from industry. I just have a deep passion for this area of law. In addition to maintaining a top-tier litigation practice, I’ve studied the controlled substances act and this area of law for more than 10 years.
What motivates me? A lot of the time, I’m just trying to do the right thing. I like fighting for the underdog. I like challenges and challenging cases. I love winning, and more importantly, the feeling of delivering wins to clients. I obsess over my client’s problems and cases so I can deliver wins. I love advocating for them inside and out of the courtroom and coming up with creative strategies.
Beyond that, I think the federalization of drug control and regulation has been a mistake and disastrous for bringing innovative care to individuals. The issue is insanely complex and multifaceted. But, in my view, this is a primary source of our problems.
I’m not saying I wouldn’t help the industry. Hardly. Indeed, I’m aligned on many substantive points. Industry on the whole isn’t bad, but in these spaces, is often misguided. And, as noted, they aren’t my clients. Why should I gratuitously help or be motivated by an industry that isn’t my client base and, for the most part, doesn’t do much for me? Guffaw.
Beyond this, some appear to think that my On Drugs persona is how I practice law or who I am in every day life. If this is you, I’m sorry. You’re confused.
True, in my online colloquial writing, I assume a brash and exaggerated version of myself. If you are longtime subscriber, you may recognize its origins.
After that post went viral, I came to a profound realization about my writing: law is bland. It needs spice to interest. So, now, I often write in a spicier persona. In short, it’s a shtick—an alter-ego of sorts—one facet of myself played to the tilt for rhetorical effect and to grab attention. If you aren’t noticed, it doesn’t matter what you say.2
But how I write here isn’t how I conduct my practice—both with clients that pay me and one’s that don’t. Indeed, I try not to write about pending matters at all. I’m an attorney first, and thus, client interests come first. Indeed, the reason I get to do this other work is because I have amazing clients outside of this space that provide me challenging cases—and more fundamentally, pay my bills. Also, amazing colleagues. In short, I get to be an advocate for the public interest drug policy cases because I’ve got an active docket working in other areas with other lawyers.
So, generally, I agree with the industry on many items. But they aren’t my client base. And, even more, they don’t really help me with my public interest work. That may be a good thing too: if I did represent industry, I’d probably be sitting on my thumb waiting for the HHS recommendation.
When I work for myself or in pro bono cases, I advocate for truth, transparency, individual freedom, and returning information to the public—which includes industry, Congress, the brohibitionists, and the public at large. Hence, my FOIA suit.
When I write on On Drugs, I write for you—our subscribers. To be clear, I don’t write to please you. I write about what interests me. But in so writing, I strive, as best possible, to tell you the truth, point you to source material, and provide perspective that may be absent. I hope you read this material and continue to read this material because you believe I am telling you the truth, or at minimum, offer a different perspective.
I respect you. And I believe that anyone who respects their audience or customer base must be candid and tell the truth. So, in these endeavors, I state the law how I see it and not how others may want it to be seen—and often with a dash of brash.
Hope you all have a Happy Valentines Day. On this day of love, do me a favor: remember to love the most important person in your life. Yourself.
For example, a couple weeks ago I attended the SAM Conference at the National Harbor. In fact, I learned a lot and it is important that folks who believe—rightly or wrongly—to have suffered losses due to cannabis have a platform and be heard. Despite my disagreement, I was thankful for the event. I may even write a “trip” report on it.
To be clear, the arrogance isn’t entirely unfounded. I’m not even 37. I’ve beaten the government as lead or co-lead counsel in multiple major drug policy cases—cases that have netted real results. I’ve done this with little more other than grit, help from firm paralegals, my brain, and sometimes Shane. And, other than Shane, I can’t name a lawyer that knows as much about the federal Controlled Substances Act as I do. In 2021, American Lawyer nominated me for Young Lawyer of the Year. I have a ton more to learn; certainly, I’m far from perfect. But by any objective measure, I’m expert in litigation in this area of law and the substantive law.