The Justice Department defends the Drug Enforcement Administration (DEA)’s decision to terminate an “outstanding”, special agent, after 16 years in service, because he had tested positive for THC following a CBD pain product that he claimed to have believed was legal hemp.
This agent, Anthony Armour , filed a lawsuit in May against DEA, seeking a reversal of the termination . He did so on several grounds including a lack “substantial proof” that he had used an illegal substance, as well as mitigating circumstances such as his record.
DEA, however, doesn’t think so. In a brief response submitted to the U.S. Court of Appeals Federal Circuit, Armour asserted “Arguments are without merit” and that Armour was inviting the Court to disregard well-established Federal Drug Policies and reweigh evidence contrary to the standard of review.
“Mr. Armour was a top-notch DEA agent in 2019 when he decided to take a risk. “He believed that CBD products were unlikely to cause him test positive for marijuana but he was aware of the possibility, so he purchased these unregulated products online and consumed them regardless,” DEA lawyers said. “Mr. Armour argues he exhibited negligence or poor decision making, and DEA held him responsible for his poor choices when they led to a confirmed positive drug test. DEA lost confidence in Mr. Armour, and removed him properly.”
This was a sad end to a long and productive career as a Federal Law Enforcement Officer. The filing states that DEA has the responsibility of enforcing drug laws in our nation, and Federal employees must be responsible for their own actions. There is a real and clear link between the removal of a person for drug abuse and the effectiveness of a drug enforcement agency.
Armour disputed that there was a nexus with his use of a CBD-based product and DEA objectives. However, the agency stated that because of the “critical sensitive” nature of his role at the agency that “there is a real nexus in his removal from the service for using illegal drugs.”
DEA admitted that Armour might not have intended to consume an illegal drug but that his consumption was “reckless”, as he knew that the product contained trace amounts of THC.
Attorneys have raised questions about 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. Attorneys are questioning whether federal employees such as Armour will continue to be subject to the same penalties if marijuana is moved to Schedule III as U.S. Department of Health and Human Services has recommended recently to DEA in any ongoing scheduling review.
The new brief states: “It’s unremarkable for the DEA to consider it serious misconduct when an employee uses illegal drugs in any way, be it with knowledge, with recklessness or with negligence, regardless of whether they do so with culpable intention, with intent, with knowledge, with recklessness or with negligence.” “Mr. Armour’s arguments falsely compare his lack of criminal intention with innocent ingestion, and gloss over his own guilty intent.”
The agency reiterated Armour’s “16 years of service and outstanding performance ratings over three years” and that he had also submitted letters of support by supervisors and co-workers.
But while these facts may be considered as mitigating factors by some, DEA stated that they did not “rise above a level which justifies reducing the overall punishment.”
Matt Zorn is an attorney for Armour and told Marijuana Moment Friday that the DEA, its administrator, and others have stated they want to “focus their resources on combating the opioid epidemic.”
He said: “One wonders why they are in Federal Court defending the termination a special agents who was taking dangerous drugs off of the streets for nothing more than, for his own pain, ingesting an advertised product as CBD oil which, unbeknownst, would test at the borderline between hemp and marijuana – precisely because he did not want to use opioids.”
Since 2020, DEA agents have been prohibited from using CBD due to the risk of mislabeling or accidental THC exposure. In 2021 the agency amended its policy to ask job applicants about their use of hemp and cannabidiol prior to federal legalization.
DEA is actively preparing broader rules on cannabis after hemp legalization. An official said earlier this year 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.
As of right now, DEA’s actions are being closely monitored in relation to a review of marijuana scheduling that was directed by President Joe Biden last year.
HHS concluded that cannabis should be placed under Schedule III of Controlled Substances Act. The HHS recently sent its findings and recommendations to the DEA. It says that it will now conduct its own review prior to making a final decision.
The response brief in Armour’s case, however, highlights how the agency strictly adheres to the laws regarding marijuana as a Schedule I substance.
Read DEA’s short defending a decision to fire an Agent over CBD product usage below:
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