Drug Enforcement Administration, 50945-50947 [2014-20202]

Agencies

• Department of Justice

[Federal Register Volume 79, Number 165 (Tuesday, August 26, 2014)]
[Notices]
[Pages 50945-50947]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-20202]


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DEPARTMENT OF JUSTICE


Drug Enforcement Administration

Richard C. Quigley, D.O.; Decision and Order

    On November 13, 2013, I, the Deputy Administrator, Drug Enforcement 
Administration, issued an Order to Show Cause and Immediate Suspension 
of Registration (hereinafter OTSC/ISO or Order) to Richard C. Quigley, 
D.O. (Registrant), of Oscoda, Michigan. The Order, which also sought 
the revocation of Registrant's DEA Certificate of Registration and the 
denial of any pending applications to renew or modify his registration, 
alleged, inter alia, that on ten occasions between June 6 and August 
30, 2013, Registrant prescribed schedule III controlled substances 
combining hydrocodone and acetaminophen, to four undercover law 
enforcement officers, without ``conduct[ing] a physical examination or 
properly assess[ing] the needs of [the] individual[s] for controlled 
substances.'' Id. at 2-3. The Order thus alleged that Registrant acted 
outside of the usual course of professional practice and lacked a 
legitimate medical purpose in issuing the prescriptions and thus 
violated both federal and state law. Id. (citing 21 CFR 1306.04(a); 
Mich. Comp. Laws sections 333.7333; 333.7405).\1\
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    \1\ 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 procedure for electing either 
option, and the consequence for failing to do either. GX 1, at 5 
(citing 21 CFR 1301.43(a), (c), (d)-(e)).
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    Based on ``the egregious and repeated nature of [his] misconduct,'' 
the Order further concluded that Registrant's ``continued registration 
during the pendency of these proceedings would constitute an imminent 
danger to the public health or safety.'' Id. at 4. Accordingly, I 
ordered that Registrant's registration be immediately suspended. Id.
    On November 18, 2013, a DEA Diversion Investigator (DI) attempted 
to serve the OTSC/ISO on Registrant. GX 2, at 2. However, she 
``discovered that [Registrant] had abandoned his practice, pulled his 
children out of school, and fled . . . to Canada.'' Id. Upon inquiring 
with U.S. Customs and Border Protection, the DI determined that 
Registrant ``and his family entered Canada on September 26, 2013'' and 
had not returned to the United States. Id. at 2-3.
    Simultaneously with the DI's attempt to effect service, on November 
18, 2013, a Legal Assistant with the Office of Chief Counsel mailed the 
OTSC/ISO to Registrant, at the mailing address he had previously 
provided the Agency, by certified mail, return receipt requested. GX 8. 
On November 21, 2013, the legal assistant queried the U.S. Postal 
Service's Track and Confirm'' Web page; the Web page stated: ``Moved, 
Left No Address.'' Id. Thereafter, on November 29, the mailing was 
returned to the Office of Chief Counsel. Id.
    On December 2, 2013, the Legal Assistant re-mailed the OTSC/ISO to 
Registrant by First Class Mail to the same address. Id. However, on 
December 11, 2013, the mailing was returned bearing a label which read: 
``MOVED LEFT NO ADDRESS, UNABLE TO FORWARD, RETURN TO SENDER.'' Id.
    Concurrently with her attempts to effect service by mail, on 
November 20, the Legal Assistant emailed the OTSC-ISO to Registrant at 
the contact email address he had previously provided to the Agency's 
Registrant Information Consolidated System (RICS). Id. at 2. According 
to the Legal Assistant, she ``received notification from my email 
program that delivery to the recipient was complete. I did not receive 
any error message that indicated that the email was not delivered.'' 
Id.
    Based on the above, I find that the Government has complied with 
its constitutional obligation to ``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).
    Here, while the Government's efforts to effect service by both hand 
delivery and mail were not effective, 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); 
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). To be sure, 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.
    Due process does not, however, require actual notice, Jones, 547 
U.S. at 226 (quoting Dusenberry, 534 U.S. 161, 170 (2002)), but rather, 
only `` `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. (quoting 
Mullane, 339 U.S. at 314). Here, I conclude that because the 
Government's use of traditional means of service was rendered futile by 
Registrant's having fled the United States, the use of email to effect 
service at an email address he had previously provided the Agency was 
``reasonably calculated . . . to apprise [Registrant] of the pendency 
of the action'' where the Government did not receive back either an 
error or undeliverable message. See Emilio

[[Page 50946]]

Luna, 77 FR 4829, 4830 (2012).\2\ I therefore conclude that the 
Government has satisfied its obligation under the Due Process Clause to 
properly serve Registrant.
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    \2\ In Robert Leigh Kale, 76 FR 48898, 48899-900 (2011), the 
Administrator 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. While here, the Government 
emailed the OTSC/ISO before it had determined that mailing would be 
ineffective, given the information it had obtained that Registrant 
had fled to Canada, I conclude that the Government was not required 
to wait for the mail to be returned unclaimed or undeliverable 
before attempting email service.
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    I further find that more than thirty (30) days have now passed 
since service of the OTSC/ISO and that neither Registrant, nor anyone 
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. 21 CFR 1301.43(d). I make the 
following findings.

Findings

    Registrant previously held a DEA Certificate of Registration, 
pursuant to which he was authorized to dispense controlled substances 
in schedules II through V as a practitioner at the registered address 
of 2099 N. US Hwy 23, Oscoda, Michigan. GX 22, at 1. According to the 
affidavit of the Chief of the DEA Registration and Program Support 
Section, on March 10, 2014, a renewal notice for this registration was 
mailed to Registrant. Id. However, on April 18, 2014, the notice was 
returned to DEA headquarters as undeliverable, and on April 30, 2014, 
this registration expired. Thereafter, on May 7, 2014, DEA sent a 
delinquent renewal notice to Registrant. Id. However, when, as of June 
1, 2014, no renewal application had been received, the registration was 
retired from the DEA computer system. Id.
    Pursuant to 5 U.S.C. 556(e), I take official notice of the fact 
that Registrant was also previously licensed by the State of Michigan 
as an osteopathic physician. However, Registrant's medical license 
expired on December 31, 2013.
    The Government represents that it did not seize any controlled 
substances pursuant to the authority granted by the Immediate 
Suspension Order. Req. for Final Agency Action, at 12.

Mootness

    The Government acknowledges that Registrant's registration expired 
on April 30, 2014 and that ``he did not timely renew.'' Id. Indeed, 
there is no pending application--whether timely or not--before the 
Agency. Thus, there is neither an existing registration to revoke nor a 
pending application to act upon. Under Agency precedent, these findings 
ordinarily render a show cause proceeding moot. See, e.g., Ronald J. 
Riegel, 63 FR 67132 (1998).
    DEA, however, has recognized a limited exception to this rule in 
cases which commence with the issuance of an immediate suspension order 
because of the collateral consequences which may attach with the 
issuance of such a suspension. See William R. Lockridge, 71 FR 77791, 
77797 (2006). The ``collateral consequences'' may include the loss of 
title to any controlled substances that have been seized pursuant to 
the immediate suspension order, see 21 U.S.C. 824(f), harm to 
reputation, and having to report the suspension on future applications 
to either this Agency or State Board. See Lockridge, 71 FR at 77797.
    Here, the Government acknowledges that no controlled substances 
were seized in this case (indeed, Registrant was already in Canada). 
Instead, it argues that ``DEA has recognized that a final agency action 
is necessary to address `harm to reputation' and other adverse 
collateral consequences that result from the initial suspension of [a] 
registration.'' Req. for Final Agency Action, at 12-13 (citing 
Lockridge, 71 FR at 77797 (citing In re Surrick, 338 F.3d 224, 230 (3d 
Cir. 2003); Dailey v. Vought Aircraft Co., 141 F.3d 224, 228 (5th Cir. 
1998); Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367, 1370 
(11th Cir. 1989) (quotation omitted))).
    Yet each of these cases had a critical factor that distinguishes 
them from the present case--the person challenging the action cared 
enough to show up and litigate. Not so here.
    In Lockridge, the Agency declined to find a case moot where a 
physician who had been issued an immediate suspension order fully 
litigated the allegations of a show cause order and allowed his 
registration to expire only after the ALJ issued a decision 
recommending that his DEA registration be revoked. 71 FR at 77796. 
While the Agency relied in part on the collateral consequences which 
attach with the issuance of an immediate suspension order, noting that 
the suspension would have to be reported on any future DEA application 
and likely on any state application, as well as the potential harm to 
the physician's reputation, it also noted that the parties had expended 
considerable resources in litigating the allegations and that there was 
also no evidence that the physician intended to permanently cease the 
practice of medicine. Id. at 77797.
    Subsequent to Lockridge, however, the Agency has held several cases 
moot notwithstanding the issuance of an immediate suspension order. See 
Tin T. Win, 78 FR 52802 (2013); Robert Charles Ley, 76 FR 20033 (2011); 
Elmer P. Manolo, 73 FR 50353 (2008).
    In Manolo, the Agency issued an immediate suspension order to a 
physician. While the physician initially requested a hearing on the 
allegations, thereafter the State suspended his medical license and the 
Government successfully moved for summary disposition. See 21 U.S.C. 
824(a)(3).
    On review, the Agency noted that the physician had allowed his DEA 
registration to expire and failed to file a renewal application. 73 FR 
at 50353. Further noting that the Government did not seek to litigate 
the allegations underlying the immediate suspension order but sought 
revocation based on the physician's loss of his state authority, the 
then-Deputy Administrator ordered the parties to brief the issue of 
whether the case was now moot, and further directed the physician, in 
the event he contended that the case was not moot, to explain why he 
did not ``file a renewal application and what collateral consequences 
attach[ed] as a result of the suspension order.'' Id. at 50354.
    While the Government acknowledged that the case had become moot and 
should be dismissed, Respondent did not comply with the briefing order. 
Id. Based on the physician's ``failure to comply with the briefing 
order, his failure to file a renewal application, and his failure to 
provide any evidence of his intent to remain in professional practice 
or of other collateral consequences that attached with the issuance of 
the suspension order,'' the then-Deputy Administrator held that the 
case was moot. Id. See also Ley, 76 FR at 20033-34 (holding case moot 
where physician subject to ISO allowed his registration to expire, 
failed to identify any collateral consequences, and waived his right to 
challenge the allegations).
    More recently, in Win, an ISO was served on a physician who then 
failed to request a hearing or submit a written statement in lieu of a 
hearing. 78 FR at 52802. Shortly after the Government filed its request 
for final agency action, the physician's registration expired. Id. at 
52803. On review, the Administrator took official notice of the 
Agency's registration records and determined that the physician had 
failed to file a renewal application. Id. The Administrator then 
directed the

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Government to notify her as to whether any controlled substances had 
been seized pursuant to the ISO thus creating a collateral consequence 
which precluded a finding of mootness. Id. Thereafter, the Government 
notified the Administrator that no controlled substances had been 
seized and acknowledged that the case was moot. Id. Accordingly, the 
Administrator dismissed the case as moot. Id.
    While the Government asserts that this case is not moot because of 
the ``harm to [Registrant's] reputation'' and other potential 
collateral consequences such as his having to disclose the suspension 
on future applications, Request for Final Agency Action, at 12; it 
ignores that Registrant has not sought to challenge the allegations.\3\ 
So too, not only did Registrant allow his Michigan license to expire, 
he has fled the United States. These findings are more than sufficient 
to conclude that Registrant does not intend to remain in professional 
practice (at least in this country).
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    \3\ Here, while the thirty-day period for requesting a hearing 
would have lapsed sometime in late December 2013, and Registrant's 
registration did not expire until April 30, 2014, the Request for 
Final Agency Action was not submitted until June 18, 2014.
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    Accordingly, I conclude that this proceeding is moot.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b) and 0.104, I order that the Order to Show Cause and 
Immediate Suspension of Registration issued to Richard C. Quigley, 
D.O., be, and it hereby is, dismissed. This Order is effective 
immediately.

    Dated: August 15, 2014.
Thomas M. Harrigan,
Deputy Administrator.
[FR Doc. 2014-20202 Filed 8-25-14; 8:45 am]
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