DEA Rescheduling Stay: Opponents Ask to Reopen the Hearing

The federal case on moving adult-use marijuana to Schedule III is still on hold, and the opponents who paused it now want more. On October 12, three opposing parties asked Chief Administrative Law Judge Derek Julius to "reopen the hearing for limited discovery and testimony" if he admits a new GAO report into the record. Julius ordered the DEA to answer that motion by October 21 and wrote that the matter "remains STAYED."

The DEA rescheduling stay began September 29. It started as a request to brief one report. Three weeks later, it is a request to reopen a hearing that closed on July 15.

What the GAO report says

The report, GAO-26-108623, came out September 23. GAO looked at 208 substances the DEA scheduled from 2020 through 2025. For all 95 that legally required a scientific evaluation from HHS, the DEA requested and considered one. For the 84 with final rules, its decision matched HHS's recommendation every time.

The criticism is about paperwork. GAO found that the DEA "does not have policies that identify roles, responsibilities and procedures related to scheduling," and that the FDA lacks written procedures for how its staff conduct evaluations. GAO made three recommendations, and the agencies concurred with all of them. The report's summary page does not mention marijuana.

Who filed what since the stay

The September 28 motion came from DUID Victim Voices, Dr. Kenneth Finn, and the National Drug and Alcohol Screening Association. It asked Julius to admit the report and allow new briefing on it. He stayed the case the next day and gave the government until October 13 to respond.

• October 9, the DEA. The agency deferred to the judge on admitting the report but opposed any new briefing. "The GAO report itself is new; however, the information contained within is not," its lawyers wrote, per Cannabis Business Times. The report, they argued, identifies "gaps in the memorialization" of the process, "not any flaws in the rescheduling process itself."
• October 12, the three movants. They asked to reply to the DEA and to reopen the hearing. According to Marijuana Moment, the motion seeks "narrowly tailored document requests" and testimony on "the process facts GAO identified," and says it does not seek "a new merits case." Their reply argues the government "cannot rely on an unexplained change in method," a reference to the switch from a five-factor medical-use test to a two-part one.
• October 13, Smart Approaches to Marijuana and Idaho, Indiana, and Nebraska. They filed in support of admitting the report and allowing new briefing. No other party responded.
• October 14, the judge. Julius let the movants' reply in, ordered the DEA's response on reopening, and "RESERVE[d]" ruling on whether the report comes in at all.

Through all of this, the DEA is still the only party in the hearing arguing for Schedule III.

The calendar keeps sliding

Nothing in this sequence has a deadline for the outcome. The DEA's regulations say the judge's report comes "as soon as practicable," and he cannot certify the record to DEA Administrator Terrance Cole until at least 25 days after serving it. Cole then writes the final order and is not bound by the recommendation.

If Julius denies the reopening, the case goes back to waiting on his recommendation, minus the weeks the stay has used up. If he grants it, discovery and new testimony have no built-in end date. Our read is that a final adult-use order in 2026 now looks unlikely either way.

Eric Berlin of Dentons, speaking to The Dales Report, described the discovery requests as a fishing expedition and said a reopened record would mean delay, not defeat.

What this means if you sell to dispensaries

The stay does not touch the April order that moved FDA-approved products and state-licensed medical marijuana to Schedule III. Medical sales already have their 280E relief. Adult-use sales don't.

Operators that depend on adult-use sales should plan on paying 280E on that revenue for all of 2026. NewLake Capital Partners CEO Anthony Coniglio told The Dales Report that a final rule usually takes effect 30 days after filing, so a December filing could leave 280E in place for 2026 without IRS guidance. Their 2027 budgets are being set now without the tax savings in them.

Vendors selling software, equipment, or packaging to those accounts should not pitch a spending wave tied to rescheduling this quarter. Medical-heavy operators already have their relief. Adult-use stores are still waiting, and the date keeps moving.

The next date to watch is October 21. The DEA's response on reopening will show how hard the government plans to push for a quick close.

This post reports filings and orders in an open proceeding. It is not legal or tax advice. Operators estimating their own 280E exposure should talk to counsel.

FAQ

Why is marijuana rescheduling on hold? Judge Derek Julius stayed the adult-use proceeding on September 29, 2026 while he decides whether to admit a GAO report on drug scheduling into the hearing record.

What did the GAO report find? The DEA's scheduling decisions matched HHS recommendations in all 84 applicable cases since 2020, but neither the DEA nor the FDA has comprehensive written procedures for scheduling. It did not evaluate marijuana.

When will the DEA judge rule? No date is set. The DEA must respond to the motion to reopen the hearing by October 21, 2026, and the judge has reserved ruling on the GAO report.

---

Medical-heavy operators already have their 280E relief. Adult-use stores are still waiting for theirs. See verified, owner-level dispensary contacts, refreshed weekly. Free preview at holdenleads.com.