Medicine Shoppe-Jonesborough; Denial of Motion for Stay, 3997-3998 [E8-1021]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 73, Number 15 (Wednesday, January 23, 2008)]
[Notices]
[Pages 3997-3998]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1021]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 03-21]


Medicine Shoppe-Jonesborough; Denial of Motion for Stay

    On December 13, 2007, I, the Deputy Administrator of the Drug 
Enforcement Administration, having concluded that the continued 
registration of the Medicine Shoppe-Jonesborough (Respondent) as a 
retail pharmacy ``is inconsistent with the public interest,'' 21 U.S.C. 
823(f), ordered that its registration be revoked effective February 1, 
2008. 73 FR 363, 388 (2008). Thereafter, on December 28, 2007, 
Respondent, through its counsel, moved to stay the decision and order 
to allow it to ``appeal the decision to the United States Court of 
Appeals.'' Motion for Stay at 1.
    As grounds for the stay, Respondent contends that it ``and its 
owner will suffer irreparable harm by the denial of a stay pending the 
conclusion of the appeal'' because ``[t]he store will have to be closed 
or liquidated and the source

[[Page 3998]]

of the family's income will be gone.'' Id. Respondent further contends 
that granting the stay will not cause irreparable harm to the public 
because the ``matter has been pending now for almost five years.'' Id. 
Relatedly, Respondent argues that ``[t]here has been no allegation of 
any wrongdoing during that period.'' Id.
    Respondent further contends that it has ``a substantial likelihood 
of success'' on the merits of its appeal. Id. In this regard, 
Respondent relies on the Administrative Law Judge's Recommended 
Decision, which concluded that its continued registration would be 
consistent with the public interest. Respondent thus argues that the 
ALJ's ``findings of fact certainly indicate that reasonable people can 
disagree strongly as to whether the respondent was operating in 
violation of the public interest.'' Id. at 1-2.
    In determining whether a stay should be granted, DEA applies the 
traditional four-factor test used by the courts. The factors are: (1) 
Whether the movant has demonstrated a substantial likelihood of success 
on the merits; (2) whether the movant will be irreparably injured 
absent a stay; (3) whether issuance of a stay will substantially injure 
the other interested parties; and (4) where the public interest lies. 
See, e.g., ACLU v. NSA, 467 F.3d 590 (6th Cir. 2006); Pearce v. DEA, 
836 F.2d 1028, 1029 (6th Cir. 1988). Moreover, as the Sixth Circuit 
recently explained, ``[m]ore than a possibility of success must be 
shown, and even if a movant demonstrates irreparable harm that 
decidedly outweighs any potential harm to the nonmoving party if a stay 
is granted, he is still required to show, at a minimum, `serious 
questions going to the merits.' '' ACLU v. NSA, 467 F.3d at 590 
(citations omitted in original).
    Here, Respondent asserts that it will suffer irreparable harm 
because the revocation of its registration will result in its closure 
or liquidation. Motion at 1. Respondent, however, offers no evidence 
that the loss of its registration has also resulted in the loss of its 
state pharmacy license, and presumably, Respondent retains authority 
under state law to dispense non-controlled prescription drugs. 
Moreover, Respondent can also sell drugs approved for over-the-counter 
marketing and numerous other non-drug products. Accordingly, while the 
revocation of its registration may cause it to lose some of its 
business, Respondent has not established that it will suffer 
irreparable harm to the extent it alleges.
    Furthermore, even assuming that Respondent has established that it 
will be irreparably harmed, it has not raised any ``serious questions 
going to the merits.'' ACLU v. NSA, 467 F.3d at 590. While Respondent 
invokes the factual findings and conclusions of law contained in the 
ALJ's opinion in support of its contention that it has ``a substantial 
likelihood of success on the merits,'' it has not demonstrated that a 
single factual finding of the Agency is unsupported by substantial 
evidence. See 5 U.S.C. 706(2). Nor has it pointed to any specific error 
in the Agency's legal conclusions. Id. Respondent therefore has not 
established ``a serious question going to the merits of his appeal, 
much less a substantial likelihood of success'' on the merits of its 
petition for review to warrant the issuance of a stay.\1\ Pearce, 836 
F.2d. at 1029.
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    \1\ Respondent further cites the lengthy time it took to resolve 
this proceeding to argue that the issuance of a stay will not harm 
the public. Motion at 1. While it is true that this proceeding took 
entirely too long to resolve, there were multiple causes of the 
delay including, but not limited to, the lengthy continuance which 
Respondent was granted to prepare its defense. Having found--based 
on the extensive evidence that Respondent filled prescriptions in 
violation of federal law, could not properly account for its 
controlled substances, and offered no evidence that it had reformed 
its practices--that Respondent's ``continued registration is 
inconsistent with the public interest,'' 73 FR at 388, I further 
conclude that Respondent has failed to show that the public interest 
lies with staying the order of revocation.
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    Accordingly, Respondent's motion for a stay of the order of 
revocation is denied.

    Dated: January 10, 2008.
Michele M. Leonhart,
Deputy Administrator.
 [FR Doc. E8-1021 Filed 1-22-08; 8:45 am]
BILLING CODE 4410-09-P