Former Drug Enforcement Administration (DEA), officer takes the agency to court for being fired after testing positive for THC. He attributes this to CBD oil derived from hemp that he used for pain relief.
Anthony Armour, a former DEA special agent who spent 15 years with the agency, was fired in 2019 after a drug test showed a positive for a THC metabolite. He immediately notified the agency he thought the result was due to CBD oil he had been using as a substitute for opioids after hemp and its derivatives became federally legalized in the 2018 Farm Bill.
The agent also voluntarily provided DEA with the products he used, and lab analyses revealed that two out of three contained less THC than 0.3 per cent by weight dry, which met the federal definition for legal hemp. The third product, with 0.35 percent THC in it, was still within the scientific margin of error +/- 0.08 percentage.
DEA refused to accommodate Armour despite his record as a exemplary employee, who was involved in opioid trafficking diversion, according to the complaint. The DEA also maintained that suspicion of possession and use of an illegal controlled drug was still pending.
Armour has filed a lawsuit in the U.S. Court of Appeals Federal Circuit. He is asking for a reversal of his charge and reassignment to the DEA.
Attorneys for the former agent stated in a Friday filing that there were three reasons the court should grant their request. 1) There is “no substantial proof” that Armour used, or possessed, an illegal drug. 2) There’s no “nexus” between Armour’s conduct (i.e. Using CBD oil is incompatible with the enforcement mission of DEA.
In a factual statement, the attorneys described how the agent’s tenure was spent on “the frontlines of this nation’s fight against opioids,” which made him acutely aware about the dangers associated with opioids. He suffered severe pain after a football career and a law enforcement career. Conventional therapies were unable to treat him.
Armour and countless Americans only tried CBD after the federal legalization of hemp, its derivatives, such as CBD.
“For Armour and many others in this country, this change meant new opportunities–particularly as to CBD, a non-THC cannabinoid in the cannabis plant,” the filing says. “Armour hoped CBD oil could play a part in his pain management.” It’s not surprising that he did. “CBD has been ingrained in American culture from Martha Stewart to Wrigley Field.”
When he began using CBD, the DEA did not have any memos, regulations or directives relating to employee use of CBD or the possibility of testing positive for cannabis.
The complaint states that it was actually during the agency’s investigation of Armour that DEA released the first guidelines warning employees about the dangers of unknowingly consuming enough THC in CBD products to test positive for illegal substances.
Attorneys said that “none of these guidelines existed when Armour used the CBD products” he had purchased. The DEA removed Armour from the DEA on the same day it amended its Personnel Manual. This was based solely upon a charge that Armour had used/possessed drugs.
“Armour’s termination was unfair. Armour didn’t use illegal drugs knowingly or intentionally. He used CBD oil that he was aware of as being legal. Armour did not possess or use illegal marijuana. The evidence indicates that Armour was using legal CBD products, which resulted in a positive THC urinalysis. Even if taking CBD was misconduct at the moment–and it wasn’t–there’s simply no nexus to DEA’s mission of enforcing the country’s drugs laws.
DEA’s deciding agent who determined the conduct of the agent was sufficient to terminate him also ” arbitrarily” reduced the standard error margin of 0.08 percent of THC by half in making his assessment. This placed the CBD product which tested at 0.35 per cent THC just outside of that margin.
“Armour showed remorse and provided investigators with pertinent information. He also fully cooperated in the investigation.” Armour’s attempt to prove his innocence by stating that he had used legal CBD products does not constitute a basis for finding him incapable of showing regret,” the filing continued. “At worst, he showed negligence or poor decisions, but not that he deliberately used marijuana.” He was not aware that CBD products may lead to charges of possession or use of marijuana.
It concluded that “for whatever reason, DEA felt it necessary to fire a Special Agent dedicated to curbing illegal diversion of controlled substances and opioids because he purchased and used a CBD product openly advertised and for pain treatment,” This penalty is not just a serious misguided policy, but also unsupported by any substantial evidence. It is hopelessly flawed on a legal level.
The DEA amended its policy in 2021 to ask only about hemp and cannabidiol usage prior to federal legalization of the crop in December 2018
DEA is actively preparing broader rules on cannabis after hemp legalization. An official said earlier this month the agency would clarify that synthetic cannabinoids will be considered illegal controlled drugs, while moving separately to decontrol CBD synthetics with up to 0.1 per cent THC.
In recent years, the legalization of hemp led to numerous federal agencies updating their cannabis-related employment policy.
Customs and Border Protection , for example, recently warned workers to “just say no to CBD”, warning such products are unregulated and could contain THC concentrations that would show up on a drug screen.
Last year, the U.S. Forest Service’s (USFS) Human Resources division published a similar notice warning employees of the dangers associated with consuming CBD products that are not federally regulated.
NASA sent out a memo shortly after hemp became legal. The memo warned its employees that using products with CBD could result in them losing their job.
In parallel, as the legalization of marijuana in states continues, other federal agencies have also revised their drug testing policies and employment policies for both workers and applicants.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) recently updated its employment policy to make it so applicants who’ve grown, manufactured or sold marijuana in compliance with state laws while serving in a “position of public responsibility” will no longer be automatically disqualified–whereas those who did so in violation of state cannabis policies won’t be considered.
Recently, the Secret Service relaxed its restrictions on marijuana use by potential agents.
Marijuana Moment obtained draft documents late last year that showed the federal Office of Personnel Management was proposing to replace several job application forms in a manner that would deal with past cannabis use much more leniently under current policy.
In 2021, the Biden administration implemented a policy that allows waivers for certain workers that admit to previous marijuana use. However, certain legislators have called for further reform.
At a hearing on marijuana legalization last year, Rep. Jamie Raskin said that he planned to introduce a bill protecting federal employees from being denied clearances for marijuana.
The nation’s largest federal employee union adopted a resolution last year in support of marijuana decriminalization, and to end the policies that penalize federal employees for using cannabis responsibly when they are off the clock while in states where the drug is legal.
In 2021, the director of national Intelligence (DNI), said that federal employers should not reject security clearance applications based on past use. They should also use discretion with those who have cannabis in their stock portfolios.
The FBI updated its hiring policy that same year, so that candidates were only disqualified if they admitted to using marijuana within a year before applying. Prior to this, potential employees of the agency were not allowed to have used cannabis in the last three years.
The Environment Protection Agency has also made it clear to its employees, that marijuana use is not allowed and neither are investments in the cannabis industry. This applies regardless of state laws or any changes in “social standards” surrounding cannabis.
The Biden administration has implemented a policy that allows for discretion in federal employment, and if a person discloses their past marijuana use. However, this policy is under fire by advocates after early reports claimed the White House had fired or punished dozens staffers who told the truth about their marijuana history.
Jen Psaki, then White House Press Secretary, tried to minimize the fallout but without much success. Her office issued a statement 2021 that stated that no one was terminated for “marijuana use from years ago,” or “due casual or infrequent usage during the previous 12 months.”
The U.S. Department of Transportation recently finalized a new rule that amends its drug-testing policy. This could have significant consequences for truckers and commercial drivers who use marijuana on the job.
Below, you can read the Federal appeals court ruling regarding the DEA’s firing an agent for cannabis:
Politicians And Government Agencies Mark 4/20 As Marijuana Legalization Movement Expands
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