Emilio Luna, M.D.; Decision and Order, 4829-4830 [2012-1974]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Notices]
[Pages 4829-4830]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1974]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Emilio Luna, M.D.; Decision and Order

    On July 12, 2011, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Emilio Luna, M.D. (Registrant), of Phoenix, Arizona. The 
Show Cause Order proposed the revocation of Registrant's DEA 
Certificate of Registration as a practitioner, on the grounds that he 
does not possess authority to handle controlled substances in Arizona, 
the State in which he is registered with DEA, and that his continued 
registration is inconsistent with the public interest. Show Cause Order 
at 1 (citing 21 U.S.C. 824(a)(3) & (4)).
    More specifically, the Show Cause Order alleged that on September 
1, 2010, the Federal Bureau of Investigation arrested and charged 
Registrant with distributing child pornography in interstate commerce. 
Id. The Order further alleged that on September 3, 2010, the Arizona 
Medical Board issued an Interim Order for Practice Restriction and 
Consent Order, under which Registrant is prohibited ``from prescribing 
any form of treatment including prescription medications.'' Id. The 
Show Cause Order also notified Registrant of his right to request a 
hearing on the allegations or to submit a written statement in lieu of 
a hearing, the procedures for doing either, and the consequence for 
failing to do either. Id. at 2 (citing 21 CFR 1301.43).
    The Government initially attempted to serve the Show Cause Order on 
Registrant by certified mail, return receipt requested, addressed to 
him at his registered location. However, the mailing was returned to 
the Agency and stamped ``Returned to Sender Attempted Not Known''; in 
addition, the word ``Refused'' was handwritten on the envelope. GX 4. 
Simultaneously, the Show Cause Order was emailed to Registrant at the 
email address he had previously provided to the Agency. GX 5. 
Thereafter, the Government did not receive back either an error or 
undeliverable message. See Gov. Statement Re: Service of the Order to 
Show Cause. In addition, several weeks later, Diversion Investigators 
attempted to personally serve Registrant at his registered location. GX 
6, at 1. However, the DIs were told that Registrant ``was not present 
and no longer practices at the clinic.'' Id.
    Before proceeding to the merits, it is necessary to determine 
whether the means employed by the Government to serve the Show Cause 
Order on Registrant were constitutionally sufficient. The Supreme Court 
has long held ``that due process requires the government to provide 
`notice reasonably calculated, under all the circumstances, to apprise 
interested parties of the pendency of the action and afford them an 
opportunity to present their objections.' '' Jones v. Flowers, 547 U.S. 
220, 226 (2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 
339 U.S. 306, 314 (1950)). Moreover, `` `when notice is a person's due 
* * * [t]he means employed must be such as one desirous of actually 
informing the absentee might reasonably adopt to accomplish it.' '' 
Jones, 547 U.S. at 229 (quoting Mullane, 339 U.S. at 315).
    In Jones, the Court further noted that its cases ``require[] the 
government to consider unique information about an intended recipient 
regardless of whether a statutory scheme is reasonably calculated to 
provide notice in the ordinary case.'' Id. at 230. The Court cited with 
approval its decision in Robinson v. Hanrahan, 409 U.S. 38 (1972), 
where it ``held that notice of forfeiture proceedings sent to a vehicle 
owner's home address was inadequate when the State knew that the 
property owner was in prison.'' Jones, 547 U.S. at 230.\1\ See also 
Robinson, 409 U.S. at 40 (``[T]he State knew that appellant was not at 
the address to which the notice was mailed * * * since he was at that 
very time confined in * * * jail. Under these circumstances, it cannot 
be said that the State made any effort to provide notice which was 
`reasonably calculated' to apprise appellant of the pendency of the * * 
* proceedings.''); Covey v. Town of Somers, 351 U.S. 141 (1956) 
(holding that notice by mailing, publication, and posting was 
inadequate when officials knew that recipient was incompetent).
---------------------------------------------------------------------------

    \1\ The CSA states that ``[b]efore taking action pursuant to [21 
U.S.C. 824(a)] * * * the Attorney General shall serve upon the * * * 
registrant an order to show cause why registration should not be * * 
* revoked[] or suspended.'' 21 U.S.C. 824(c). In contrast to the 
schemes challenged in Jones and Robinson, which provided for service 
to the property owner's address as listed in state records, neither 
the CSA nor Agency regulations state that service shall be made at 
any particular address such as the registered location. In any 
event, while in most cases, service to a registrant's registered 
location provides adequate notice, the Supreme Court's clear 
instruction is that the Government cannot ignore ``unique 
information about an intended recipient'' when its seeks to serve 
that person with notice of a proceeding that it is initiating. 
Jones, 547 U.S. at 230.
---------------------------------------------------------------------------

    The Jones Court further explained that ``under Robinson and Covey, 
the government's knowledge that notice pursuant to the normal procedure 
was ineffective triggered an obligation on the government's part to 
take additional steps to effect notice.'' 547 U.S. at 230. The Court 
also noted that ``a party's ability to take steps to safeguard its own 
interests [such as by updating his address] does not relieve the State 
of its constitutional obligation.'' Id. at 232 (quoting Brief for 
United States as Amicus Curiae 16 n.5 (quoting Mennonite Bd. of 
Missions v. Adams, 462 U.S. 791, 799 (1983))). However, the Government 
is not required to undertake ``heroic efforts'' to find a registrant. 
Dusenbery v. United States, 534 U.S. 161, 170 (2002). Nor is actual 
notice required. Id.
    Thus, in Jones, the Court held that where the State had received 
back a certified mailing of process as unclaimed and took ``no further 
action'' to notify the property owner, the State did not satisfy due 
process. 547 U.S. at 230. Rather, the State was required to ``take 
further reasonable steps if any were available.'' Id.
    I conclude that the Government has satisfied its obligation under 
the Due Process Clause ``to provide `notice reasonably calculated, 
under all the circumstances, to apprise interested parties of the 
pendency of the action and afford them an opportunity to present their 
objections.' '' Id. at 226 (quoting Mullane, 339 U.S. at 314). Even 
assuming that the Government's attempts to serve Registrant by 
certified mail and personal service \2\ did not

[[Page 4830]]

comply with the Supreme Court's instruction, several courts have held 
that the emailing of process can, depending on the facts and 
circumstances, satisfy due process, especially where service by 
conventional means is impracticable because a person secretes himself. 
See Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1017-18 
(9th Cir. 2002); see also Snyder, et al. v. Alternate Energy Inc., 857 
N.Y.S. 2d 442, 447-449 (N.Y. Civ. Ct. 2008); In re International 
Telemedia Associates, Inc., 245 B.R. 713, 721-22 (Bankr. N.D. Ga. 
2000). While courts have recognized that the use of email to serve 
process has ``its limitations,'' including that ``[i]n most instances, 
there is no way to confirm receipt of an email message,'' Rio 
Properties, 284 F.3d at 1018, I conclude that the use of email to serve 
Registrant satisfied due process because service was made to an email 
address which Registrant provided to the Agency and the Government did 
not receive back either an error or undeliverable message.\3\ See 
Robert Leigh Kale, 76 FR 48898, 48899-900 (2011).
---------------------------------------------------------------------------

    \2\ As for the use of mail, after Jones, it seems relatively 
clear that when certified mail is returned unclaimed, in most cases, 
the Government can satisfy its constitutional obligation by simply 
re-mailing the Show Cause Order by regular first class mail. Jones, 
547 U.S. at 234-35. It also seems doubtful that any court would hold 
that going to the clinic where Registrant formerly practiced would 
provide `` `notice reasonably calculated, under all the 
circumstances, to apprise interested parties of the pendency of the 
action and afford them an opportunity to present their objections.' 
'' Jones, 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314). At 
that point, nearly a year had passed since the State Board had 
prohibited Registrant from practicing medicine and it was a widely 
publicized fact that Registrant was a fugitive from justice and 
wanted by the FBI.
    \3\ While in Kale, I explained that the use of email to serve an 
Order to Show Cause is acceptable only after traditional methods of 
service have been tried and been ineffective, given Registrant's 
status as a fugitive and the likelihood that the traditional methods 
would (and ultimately did) prove futile, I conclude that the timing 
of the Government's use of email service does not constitute 
prejudicial error.
---------------------------------------------------------------------------

    Having found that the service of the Show Cause Order was 
constitutionally adequate, I further find that thirty days have now 
passed since service of the Order and neither Registrant, nor any one 
purporting to represent him, has either requested a hearing or 
submitted a written statement in lieu of a hearing. I therefore find 
that Registrant has waived his right to a hearing or to submit a 
written statement in lieu of a hearing, see 21 CFR 1301.43(d), and 
issue this Decision and Final Order based on relevant evidence 
contained in the Investigative Record submitted by the Government. Id. 
1301.43(d) & (e). I make the following additional findings of fact.

Findings

    Registrant is the holder of DEA Certificate of Registration 
BL5670686, which authorizes him to dispense controlled substances in 
schedule II through V at the registered location of 4137 N. 108th Ave., 
Phoenix, Arizona 85037. GX 1. Registrant's registration does not expire 
until March 31, 2013. Id. At the time this proceeding was commenced, 
Registrant was also the holder of an allopathic medicine license issued 
by the Arizona Medical Board. GX 2, at 1.
    On September 1, 2010, Registrant was arrested by the Federal Bureau 
of Investigation and charged with distributing child pornography in 
interstate commerce. Id.; see also GX 6, at 2. The next day, the State 
Board received word of the arrest and concluded that ``if Respondent 
were to practice medicine in Arizona there would be a danger to the 
public health and safety.'' Id. at 2. The following day, the Board's 
Executive Director and Registrant entered into an Interim Order, 
pursuant to which Registrant was ``not [to] practice clinical medicine 
or any medicine involving direct patient care, and [wa]s prohibited 
from prescribing any form of treatment including prescription 
medications, until [he] applie[d] to the Board and receive[d] 
permission to do so.'' Id.
    Subsequently, on October 6, 2011, the Board revoked Registrant's 
medical license. GX 7. I therefore find that Registrant is currently 
without authority under the laws of Arizona to dispense controlled 
substances, the State in which he holds his DEA registration.

Discussion

    Under the Controlled Substances Act (CSA), a practitioner must be 
currently authorized to dispense controlled substances in the 
``jurisdiction in which he practices'' in order to maintain a DEA 
registration. See 21 U.S.C. 802(21) (``[t]he term `practitioner' means 
a physician * * * licensed, registered, or otherwise permitted, by * * 
* the jurisdiction in which he practices * * * to distribute, dispense, 
[or] administer * * * a controlled substance in the course of 
professional practice''). See also id. Sec.  823(f) (``The Attorney 
General shall register practitioners * * * if the applicant is 
authorized to dispense * * * controlled substances under the laws of 
the State in which he practices.''). As these provisions make plain, 
possessing authority under state law to handle controlled substances is 
an essential condition for obtaining and maintaining a DEA 
practitioner's registration.
    Accordingly, DEA has held that revocation of a registration is 
warranted whenever a practitioner's state authority to dispense 
controlled substances has been suspended or revoked. David W. Wang, 72 
FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 
11920 (1988). See also 21 U.S.C. 824(a)(3) (authorizing revocation of a 
registration ``upon a finding that the registrant * * * has had his 
State license or registration suspended [or] revoked * * * and is no 
longer authorized by State law to engage in the * * * distribution [or] 
dispensing of controlled substances'').
    As found above, on September 3, 2010, the Arizona Board issued an 
Interim Order prohibiting Registrant ``from prescribing any form of 
treatment including prescription medications,'' GX 2, at 2, and on 
October 6, 2011, the Board issued an Order revoking his medical 
license. GX 7, at 4. Accordingly, Registrant is without authority to 
dispense controlled substances in the State where he practices medicine 
and holds his DEA registration, and is therefore no longer entitled to 
hold his registration. See 21 U.S.C. 802 (21), 823(f), 824(a)(3). 
Therefore, pursuant to the authority granted under 21 U.S.C. 824(a)(3), 
his registration will be revoked.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration BL5670686, issued to Emilio Luna, M.D., be, and it hereby 
is, revoked. I further order that any pending application of Emilio 
Luna, M.D., to renew or modify his registration, be, and it hereby is, 
denied. This Order is effective immediately.\4\
---------------------------------------------------------------------------

    \4\ Based on the findings of the Arizona Board, I conclude that 
the public interest requires that this Order be made effective 
immediately. 21 CFR 1316.67.

    Dated: January 17, 2012.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-1974 Filed 1-30-12; 8:45 am]
BILLING CODE 4410-09-P