Brown's Discount Apothecary, BC, Inc., and Bolling Apothecary, Inc., 57393-57395 [2015-24126]
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Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices
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in which he practices.’’). DEA has long
held that possession of authority under
state law to dispense controlled
substances is an essential condition for
obtaining and maintaining a DEA
´
registration. Serenity Cafe, 77 FR 35027,
35028 (2012); David W. Wang, 72 FR
54297, 54298 (2007); Sheran Arden
Yeates, 71 FR 39130, 39131 (2006);
Dominick A. Ricci, M.D., 58 FR 51104
(1993); Bobby Watts, M.D., 53 FR 11919
(1988). Because ‘‘possessing authority
under state law to handle controlled
substances is an essential condition for
holding a DEA registration,’’ this
Agency has consistently held that ‘‘the
CSA requires the revocation of a
registration issued to a practitioner who
lacks [such authority].’’ Roy Chi Lung,
M.D., 74 FR 20346, 20347 (2009); see
also Scott Sandarg, D.M.D., 74 FR
17528, 174529 (2009); John B. Freitas,
D.O., 74 FR 17524, 17525 (2009); Roger
A. Rodriguez, M.D., 70 FR 33206, 33207
(2005); Stephen J. Graham, M.D., 69 FR
11661 (2004); Abraham A. Chaplan,
M.D., 57 FR 55280 (1992); see also
Harrell E. Robinson, M.D., 74 FR 61370,
61375 (2009).1 ‘‘[R]evocation is
warranted even where a practitioner’s
state authority has been summarily
suspended and the State has yet to
provide the practitioner with a hearing
to challenge the State’s action at which
he may ultimately prevail.’’ Kamal
Tiwari, M.D., 76 FR 71604, 71606,
(2011); see also Bourne Pharmacy, Inc.,
72 FR 18273, 18274 (2007); Anne Lazar
Thorn, M.D., 62 FR 12847 (1997).
Additionally, Agency precedent has
established that the existence of other
proceedings in which the Respondent is
involved is not a basis upon which to
justify a stay of DEA administrative
enforcement proceedings. Grider Drug
#1 & Grider Drug #2, 77 FR 44069,
44104 n.97 (2012).
Congress does not intend for
administrative agencies to perform
meaningless tasks. See Philip E. Kirk,
M.D., 48 FR 32887 (1983), aff’d sub
nom. Kirk v. Mullen, 749 F.2d 297 (6th
Cir. 1984); see also Puerto Rico
Aqueduct & Sewer Auth. v. EPA, 35
F.3d 600, 605 (1st Cir. 1994); NLRB v.
1 But see 21 U.S.C. 824(a)(3) (2012) (‘‘A
registration pursuant to section 823 of this title to
manufacture, distribute, or dispense a controlled
substance may be suspended or revoked by the
Attorney General upon a finding that the registrant
. . . has had his State license or registration
suspended, revoked, or denied by competent State
authority . . . .’’) (emphasis added). Thus,
notwithstanding the Agency’s extensive body of
internal precedent to the contrary, the plain
language of section 824(a)(3) provides that loss of
state authority constitutes a discretionary—not
mandatory—basis for revocation. However,
inasmuch as the Agency precedent is clear on the
matter, I am without authority or inclination to
render a contrary interpretation.
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Int’l Assoc. of Bridge, Structural &
Ornamental Ironworkers, AFL–CIO, 549
F.2d 634 (9th Cir. 1977); United States
v. Consol. Mines & Smelting Co., 455
F.2d 432, 453 (9th Cir. 1971). Thus, it
is well-settled that, where no genuine
question of fact is involved or when the
material facts are agreed upon, a
plenary, adversarial administrative
proceeding is not required. See Jesus R.
Juarez, M.D., 62 FR 14945 (1997);
Dominick A. Ricci, M.D., 58 FR 51104
(1993). Here, the supplied BML Order
establishes, and the Respondent does
not contest, that the Respondent is
currently without authorization to
handle controlled substances in
Kentucky, the jurisdiction where the
Respondent holds the DEA COR that is
the subject of this litigation.
Summary disposition of an
administrative case is warranted where,
as here, ‘‘there is no factual dispute of
substance.’’ See Veg-Mix, Inc., 832 F.2d
601, 607 (D.C. Cir. 1987) (‘‘an agency
may ordinarily dispense with a hearing
when no genuine dispute exists’’).2
While not unsympathetic to the
procedural issues raised by the
Respondent in his state administrative
proceedings, under current Agency
precedent, the disposition of the
Government’s motion is wholly
dependent upon a single issue: whether
he continues to possess authority under
state law to handle controlled
substances—which he does not.
At this juncture, no genuine dispute
exists over the fact that the Respondent
lacks state authority to handle
controlled substances in the state of
Kentucky. Because the Respondent
lacks such state authority, both the plain
language of applicable federal statutory
provisions and Agency interpretive
precedent dictate that he is not entitled
to maintain his DEA registration.
Simply put, there is no contested factual
matter adducible at a hearing that would
provide DEA with the authority to allow
the Respondent to continue to hold his
COR.
Accordingly, I hereby
GRANT the Government’s Motion for
Summary Disposition; and further
RECOMMEND that the Respondent’s
DEA registration be REVOKED
2 Even assuming, arguendo, the possibility that
the Respondent’s state controlled substances
privileges could be reinstated, summary disposition
would still be warranted because under Agency
precedent ‘‘revocation is also appropriate when a
state license has been suspended, but with the
possibility of future reinstatement,’’ Rodriguez, 70
FR 33207 (citations omitted), and even where there
is a judicial challenge to the state medical board
action actively pending in the state courts. Michael
G. Dolin, M.D., 65 FR 5661, 5662 (2000).
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forthwith 3 and any pending
applications for renewal be DENIED.
Dated: July 23, 2015.
John J. Mulrooney II,
Chief Administrative Law Judge.
[FR Doc. 2015–24128 Filed 9–22–15; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 15–23]
Brown’s Discount Apothecary, BC,
Inc., and Bolling Apothecary, Inc.
On May 18, 2015, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Brown’s Discount
Apothecary, BC, Inc. (holder of DEA
Certificate of Registration FB3717153),
of Jasper, Alabama and Bolling
Apothecary, Inc., (holder of DEA
Certificate of Registration AB9375456),
of Fayette, Alabama. Show Cause Order,
at 1. The Show Cause Order proposed
the revocation of each pharmacy’s DEA
Certificate of Registration, on the ground
that on April 7, 2015, the Alabama State
Board of Pharmacy issued an Emergency
Suspension Order suspending each
pharmacy’s Alabama Controlled
Substances Permit, and that therefore,
each pharmacy is ‘‘without authority to
handle controlled substances in
Alabama, the [S]tate in which each is
registered with the DEA.’’ Id. at 1–2.
On May 20, 2015, a Diversion
Investigator from the Birmingham
District Office personally served the
Order to Show Cause on Bolling
Apothecary, Inc. Notice of Service of
Order to Show Cause, at 1. According to
the Government, on June 2, 2015, an
attorney ‘‘accepted service by email of
the Order to Show Cause on behalf of
Brown’s Discount Apothecary and its
owner George Bolling, Jr. Id.
On June 1, 2015, George R. Bolling,
Sr., owner of Respondent Bolling
Apothecary, Inc., filed a request for a
hearing on behalf of the pharmacy with
the Office of Administrative Law Judges
3 While Agency precedent has held that a stay of
DEA administrative proceedings is unlikely ever to
be justified by the existence of ancillary
proceedings (Grider Drug #1 & Grider Drug, #2, 77
FR 44069, 44104 n.97 (2012)), the Agency recently
held revocation proceedings in abeyance at the
post-hearing adjudication level for a lengthy period
pending the resolution of criminal fraud charges
and ‘‘pending resolution of [a state] Board
proceeding.’’ Odette L. Campbell, M.D., 80 FR
41062, 41064 (2015). However, inasmuch as no stay
was sought by the Respondent here, and good cause
does not appear to exist in any event, the
Government’s motion will be granted and the case
forwarded for a final order.
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Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices
(OALJ). Letter of Bolling Apothecary,
Inc., to Hearing Clerk, OALJ (May 23,
2015). Mr. Bolling did not, however,
request a hearing on behalf of Brown’s
Discount Apothecary, and at no point
has any person filed a request for a
hearing on behalf of Brown’s, or in the
alternative, filed a written statement in
lieu of a hearing. See 21 CFR 1301.43(c)
& (d).
Both matters were nonetheless placed
on the docket of the OALJ and assigned
to Administrative Law Judge (ALJ)
Christopher B. McNeil. Recommended
Decision, at 2. On June 2, the ALJ issued
an ‘‘Order For Briefing On Allegations
Concerning Respondents’ Lack Of State
Authority’’ (hereinafter, Briefing Order).
Therein, the ALJ found that there was
‘‘no request for a hearing on behalf of
Brown’s Discount Apothecary.’’ Briefing
Order, at 2. He then provided the parties
with the ‘‘opportunity to establish
whether grounds exist with respect to
either [pharmacy] to advance this matter
to hearing, or whether the two
pharmacy’s [sic] DEA . . .
Registration[s] should be summarily
revoked and any pending application
summarily denied, without a hearing.’’
Id. The ALJ further ordered that ‘‘the
Government may provide evidence and
arguments to support the allegation that
Bolling Apothecary, Inc. lacks state
authority to handle controlled
substances,’’ and ‘‘may also provide
evidence and arguments regarding the
issue of whether Brown’s Discount
Apothecary has timely invoked the
jurisdiction of the Office of
Administrative Law Judges, or the issue
of whether [it] lacks state authority to
handle controlled substances, or both
issues.’’ Id. at 2–3. The ALJ’s Order also
offered Respondent the opportunity to
file a response. Id. at 3.
Thereafter, the Government filed a
Motion for Summary Disposition
(hereinafter, Motion). Therein, the
Government sought the revocation of
each pharmacy’s registration on the
ground that the Alabama State Board of
Pharmacy had issued an Emergency
Suspension Order which suspended
each pharmacy’s Alabama Controlled
Substances Permit. Motion, at 2. The
Government supported its motion with
a copy of the Emergency Suspension
Order. Id. at Exhibit A, at 7. However,
the Government did not address
whether, given the failure of Brown’s
Discount Apothecary to file a hearing
request, the ALJ had jurisdiction to
adjudicate the allegations with respect
to it. See generally Motion, at 2–4.
While Bolling Apothecary had
requested a hearing, it did not file a
response to the Government’s motion.
Nor did Brown’s file a response.
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On July 6, 2015, the ALJ issued his
Recommended Decision. Addressing the
issue of whether he had jurisdiction to
rule on the matter of Brown’s
registration, the ALJ explained that he
had given ‘‘the Government the option
of providing evidence and arguments
regarding the issue of whether Brown’s
. . . has timely invoked the jurisdiction
of this office or whether Brown’s lacks
state authority to handle controlled
substances.’’ R.D. at 2 n2. The ALJ then
noted that ‘‘the Government elected to
present evidence that Brown’s . . . is
currently without state authority to
handle and dispense controlled
substances.’’ Id. The ALJ then
proceeded to exercise jurisdiction over
the matters involving both Brown’s and
Bolling, but provided no explanation as
to why he was doing so with respect to
Brown’s. Moreover, the ALJ did not
make the requisite finding as to the
registration status of either Brown’s or
Bolling. See Sharad C. Patel, 80 FR
28,693, 28,694 n.3 (2015).
While the ALJ noted that neither
Brown’s nor Bolling had filed a
response to the Government’s motion,
he addressed the arguments raised by
Bolling Pharmacy in its Hearing
Request. R.D. at 3–4. The ALJ noted that
George R. Bolling, Sr. (Bolling
Apothecary’s owner) had filed a renewal
application with the State Board the day
after he bought the store and included
a copy of a warranty deed executing a
transfer of the store to him from one
George R. Bolling, Jr. Id. at 3–4. The ALJ
found, however, that ‘‘nowhere in the
request for hearing does either of the
Respondents provide any evidence
contradicting the Government’s position
that both Bolling and Brown[’s] lack
state authority to handle and dispense
controlled substances.’’ R.D. at 4.1 The
ALJ thus concluded that the
‘‘Respondents do not have authority to
handle and dispense controlled
substances in the State of Alabama, the
jurisdiction where each is licensed by
the DEA to handle and dispense such
substances.’’ Id. at 4. The ALJ then
granted the Government’s Motion for
Summary Disposition and
‘‘recommended that Respondents’ DEA
Certificate of Registration . . . be
revoked and that any pending
application . . . be denied.’’ Id. at 5.
1 The ALJ also rejected the contention of Bolling’s
owner that the pharmacy ‘‘ha[d] authority’’ until
either his state license or his DEA registration was
physically removed by a person identified only as
the supervisor of a DEA Diversion Investigator. R.D.
at 4 (quoting Bolling Pharmacy Request for Hearing,
at 1). As the ALJ correctly explained, it is the Board
of Pharmacy’s Emergency Suspension Order ‘‘and
not the presence or absence of the physical license
that supports the Government’s motion.’’ Id.
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Neither party filed exceptions to the
Recommended Decision. Thereafter, on
August 3, 2015, the ALJ forwarded the
record to this Office for Final Agency
Action.
Having reviewed the record, I adopt
the ALJ’s Recommended Decision only
with respect to Bolling Apothecary.
With respect to Brown’s, I find that the
Government did not establish that it
properly served the Show Cause Order.
Moreover, even if the Government had
established service, I would reject the
ALJ’s decision as to Brown’s, because in
the absence of a hearing request, the ALJ
had no authority to rule on the issue of
whether its registration should be
revoked.
As for whether service was proper, 21
U.S.C. 824(c) provides that ‘‘[b]efore
taking action pursuant to this section
. . . the Attorney General shall serve
upon the . . . registrant an order to
show cause why registration should not
be . . . revoked[] or suspended.’’
(emphasis added). According to the
Government’s Notice of Service, the
Government did not serve the Show
Cause Order ‘‘upon the . . .
[R]egistrant,’’ id., but rather on an
attorney, who according to the
Government ‘‘accepted service by email
of the Order to Show Cause on behalf
of Brown’s . . . and its owner George
Bolling, Jr. on June 2, 2015.’’ Notice of
Service, at 1.
However, ‘‘[n]umerous Federal Courts
have held that ‘[t]he mere relationship
between a defendant and his attorney
does not, in itself, convey authority to
accept service.’ ’’ Harbinson v.
Commonwealth of Virginia, 2010 WL
3655980, at *9 (E.D. Va. Aug. 11, 2010)
(quoting Davies v. Jobs & Adverts
Online, Gmbh, 94 F.Supp.2d 719, 722
(E.D. Va. 2000)). See also United States
v. Ziegler Bolt & Parts Co., 111 F.3d 878,
881 (Fed. Cir. 1997); Grandbouche v.
Lovell, 913 F.2d 835, 837 (10th Cir.
1990); Ransom v. Brennan, 437 F.2d
5134, 518–19 (5th Cir. 1971). ‘‘‘Rather,
the party seeking to establish the agency
relationship must show ‘‘that the
attorney exercised authority beyond the
attorney-client relationship, including
the power to accept service.’’ ’ ’’
Harbinson, 2010 WL 3655980, at *9
(quoting Davies, 94 F.Supp.2d at 722
(quoting Ziegler, 111 F.3d at 881)).
While an attorney’s authority to act as
an agent for the acceptance of process
‘‘may be implied from surrounding
circumstances indicating the intent of’’
his client, In re Focus Media Inc., 387
F.3d 1077, 1082 (9th Cir. 2004) (other
citation and internal quotations
omitted), ‘‘an agent’s authority to act
cannot be established solely from the
agent’s actions.’’ Id. at 1084. ‘‘Rather,
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the authority must be established by an
act of the principal.’’ Id. (citing FDIC v.
Oaklawn Apartments, 959 F.2d 170, 175
(10th Cir. 1992) (emphasis added)).
With respect to Brown’s, even
assuming that the attorney it served
with the Show Cause Order was in an
attorney-client relationship with the
pharmacy, the Government has
produced no evidence establishing that
Brown’s authorized the attorney to
accept service of the Order on its behalf.
See David M. Lewis, 78 FR 36591, 36591
(2013) (holding service on attorney was
improper where only evidence offered
by Government was that ‘‘the attorney
requested to take possession of the
Order’’) (citing Focus Media, 387 F.3d at
1084)). Accordingly, I find that the
Government did not accomplish service
on Brown’s.
Even if I concluded otherwise, under
the Agency’s regulations, a hearing
request must be submitted by the
applicant/registrant to vest jurisdiction
over the matter in the Office of
Administrative Law Judges. See 21 CFR
1301.42 (‘‘If requested by a person
entitled to a hearing, the Administrator
shall hold a hearing for the purpose of
receiving factual evidence regarding the
issues involved in the denial, revocation
or suspension of any registration.’’); id.
§ 1301.43(a) (‘‘Any person entitled to a
hearing . . . and desiring a hearing
shall, within 30 days after the date of
receipt of the order to show cause . . .
file with the Administrator a written
request for a hearing in the form
prescribed . . . .’’); id. § 1301.43(d) (‘‘If
any person entitled to a hearing . . .
fails to file a request for a hearing . . .
such person shall be deemed to have
waived the opportunity for a hearing
. . . unless such person shows good
cause for such failure.’’). Because in
contrast to Bolling, Brown’s never filed
a hearing request, the ALJ had no
authority to offer ‘‘the Government the
option of providing evidence and
arguments regarding the issue of . . .
whether Brown’s lacks state authority to
handle controlled substances,’’ R.D. 2, at
n.2; and he had no authority to rule on
the issue.2
As for Bolling Discount Apothecary,
its owner attached a copy of its
registration with his Request for
Hearing, which shows that his
registration does not expire until July
2 According to the Show Cause Order, Brown’s
registration was due to expire on July 31, 2015, and
the registration records of the Agency, of which I
take Official Notice, see 5 U.S.C. 556(e), show that
Brown’s allowed its registration to expire on July
31, 2015 (before the ALJ forwarded the record) and
has not filed a renewal application. See Patel, 80
FR at 28,694 n.3. In any event, because the
Government did not serve Brown’s, the matter of its
registration is not before me.
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18:00 Sep 22, 2015
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31, 2017, thus rendering a remand to
establish jurisdiction unnecessary.
Having reviewed the Board’s Emergency
Suspension Order, I adopt the ALJ’s
finding that the pharmacy does not have
authority to dispense controlled
substances in Alabama, the State in
which it is registered with DEA, and
that therefore, it no longer meets the
statutory definition of a practitioner. See
21 U.S.C. 802(21) (‘‘The term
‘practitioner’ means a . . . pharmacy
. . . licensed, registered, or otherwise
permitted, by . . . the jurisdiction in
which [it] practices . . . to . . .
dispense . . . a controlled substance in
the course of professional practice[.]’’).
See also 21 U.S.C. 823(f). Accordingly,
I will order that Respondent Bolling
Discount Pharmacy’s registration be
revoked and that any pending
application to renew or modify its
registration be denied. See 21 U.S.C.
824(a)(3); see also R.D. at 4 n.10
(collecting cases).
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a) and 28 CFR 0.100(b),
I order that DEA Certificate of
Registration AB9375456 issued to
Bolling Apothecary be, and it hereby is,
revoked. I further order that any
application of Bolling Apothecary to
renew or modify its registration be, and
it hereby is, denied. This Order is
effective immediately.3
Dated: September 15, 2015.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2015–24126 Filed 9–22–15; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF LABOR
Office of the Secretary
Agency Information Collection
Activities; Submission for OMB
Review; Comment Request;
Underground Retorts
ACTION:
Notice.
The Department of Labor
(DOL) is submitting the Mine Safety and
Health Administration (MSHA)
sponsored information collection
request (ICR) titled, ‘‘Underground
Retorts,’’ to the Office of Management
and Budget (OMB) for review and
approval for continued use, without
SUMMARY:
3 For the same reasons that led the Board to order
the emergency suspension of Respondent’s
pharmacy license (i.e., the extensive allegations that
it was diverting controlled substances), I find that
the public interest necessitates that this Order be
effective immediately. 21 CFR 1316.67.
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57395
change, in accordance with the
Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501 et seq. Public
comments on the ICR are invited.
DATES: The OMB will consider all
written comments that agency receives
on or before October 23, 2015.
ADDRESSES: A copy of this ICR with
applicable supporting documentation;
including a description of the likely
respondents, proposed frequency of
response, and estimated total burden
may be obtained free of charge from the
RegInfo.gov Web site at https://
www.reginfo.gov/public/do/
PRAViewICR?ref_nbr=201507-1219-002
(this link will only become active on the
day following publication of this notice)
or by contacting Michel Smyth by
telephone at 202–693–4129, TTY 202–
693–8064, (these are not toll-free
numbers) or by email at DOL_PRA_
PUBLIC@dol.gov.
Submit comments about this request
by mail or courier to the Office of
Information and Regulatory Affairs,
Attn: OMB Desk Officer for DOL–
MSHA, Office of Management and
Budget, Room 10235, 725 17th Street
NW., Washington, DC 20503; by Fax:
202–395–5806 (this is not a toll-free
number); or by email: OIRA_
submission@omb.eop.gov. Commenters
are encouraged, but not required, to
send a courtesy copy of any comments
by mail or courier to the U.S.
Department of Labor-OASAM, Office of
the Chief Information Officer, Attn:
Departmental Information Compliance
Management Program, Room N1301,
200 Constitution Avenue NW.,
Washington, DC 20210; or by email:
DOL_PRA_PUBLIC@dol.gov.
FOR FURTHER INFORMATION CONTACT:
Michel Smyth by telephone at 202–693–
4129, TTY 202–693–8064, (these are not
toll-free numbers) or by email at DOL_
PRA_PUBLIC@dol.gov.
Authority: 44 U.S.C. 3507(a)(1)(D).
This ICR
seeks to extend PRA authority for the
Underground Retorts information
collection. Regulations 30 CFR 57.22401
sets forth the safety requirements for
using a retort to extract oil from shale
in an underground metal or nonmetal I–
A and I–B mine that operates in a
combustible ore and either liberates
methane or has the potential to liberate
methane based on the history of the
mine or the geological area in which the
mine is located. This presently applies
only to underground oil shale mines.
The standard requires that, prior to
ignition of an underground retort, the
mine operator must submit a written
ignition operation plan to the
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 80, Number 184 (Wednesday, September 23, 2015)]
[Notices]
[Pages 57393-57395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24126]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 15-23]
Brown's Discount Apothecary, BC, Inc., and Bolling Apothecary,
Inc.
On May 18, 2015, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Brown's Discount Apothecary, BC, Inc. (holder of DEA
Certificate of Registration FB3717153), of Jasper, Alabama and Bolling
Apothecary, Inc., (holder of DEA Certificate of Registration
AB9375456), of Fayette, Alabama. Show Cause Order, at 1. The Show Cause
Order proposed the revocation of each pharmacy's DEA Certificate of
Registration, on the ground that on April 7, 2015, the Alabama State
Board of Pharmacy issued an Emergency Suspension Order suspending each
pharmacy's Alabama Controlled Substances Permit, and that therefore,
each pharmacy is ``without authority to handle controlled substances in
Alabama, the [S]tate in which each is registered with the DEA.'' Id. at
1-2.
On May 20, 2015, a Diversion Investigator from the Birmingham
District Office personally served the Order to Show Cause on Bolling
Apothecary, Inc. Notice of Service of Order to Show Cause, at 1.
According to the Government, on June 2, 2015, an attorney ``accepted
service by email of the Order to Show Cause on behalf of Brown's
Discount Apothecary and its owner George Bolling, Jr. Id.
On June 1, 2015, George R. Bolling, Sr., owner of Respondent
Bolling Apothecary, Inc., filed a request for a hearing on behalf of
the pharmacy with the Office of Administrative Law Judges
[[Page 57394]]
(OALJ). Letter of Bolling Apothecary, Inc., to Hearing Clerk, OALJ (May
23, 2015). Mr. Bolling did not, however, request a hearing on behalf of
Brown's Discount Apothecary, and at no point has any person filed a
request for a hearing on behalf of Brown's, or in the alternative,
filed a written statement in lieu of a hearing. See 21 CFR 1301.43(c) &
(d).
Both matters were nonetheless placed on the docket of the OALJ and
assigned to Administrative Law Judge (ALJ) Christopher B. McNeil.
Recommended Decision, at 2. On June 2, the ALJ issued an ``Order For
Briefing On Allegations Concerning Respondents' Lack Of State
Authority'' (hereinafter, Briefing Order).
Therein, the ALJ found that there was ``no request for a hearing on
behalf of Brown's Discount Apothecary.'' Briefing Order, at 2. He then
provided the parties with the ``opportunity to establish whether
grounds exist with respect to either [pharmacy] to advance this matter
to hearing, or whether the two pharmacy's [sic] DEA . . .
Registration[s] should be summarily revoked and any pending application
summarily denied, without a hearing.'' Id. The ALJ further ordered that
``the Government may provide evidence and arguments to support the
allegation that Bolling Apothecary, Inc. lacks state authority to
handle controlled substances,'' and ``may also provide evidence and
arguments regarding the issue of whether Brown's Discount Apothecary
has timely invoked the jurisdiction of the Office of Administrative Law
Judges, or the issue of whether [it] lacks state authority to handle
controlled substances, or both issues.'' Id. at 2-3. The ALJ's Order
also offered Respondent the opportunity to file a response. Id. at 3.
Thereafter, the Government filed a Motion for Summary Disposition
(hereinafter, Motion). Therein, the Government sought the revocation of
each pharmacy's registration on the ground that the Alabama State Board
of Pharmacy had issued an Emergency Suspension Order which suspended
each pharmacy's Alabama Controlled Substances Permit. Motion, at 2. The
Government supported its motion with a copy of the Emergency Suspension
Order. Id. at Exhibit A, at 7. However, the Government did not address
whether, given the failure of Brown's Discount Apothecary to file a
hearing request, the ALJ had jurisdiction to adjudicate the allegations
with respect to it. See generally Motion, at 2-4.
While Bolling Apothecary had requested a hearing, it did not file a
response to the Government's motion. Nor did Brown's file a response.
On July 6, 2015, the ALJ issued his Recommended Decision.
Addressing the issue of whether he had jurisdiction to rule on the
matter of Brown's registration, the ALJ explained that he had given
``the Government the option of providing evidence and arguments
regarding the issue of whether Brown's . . . has timely invoked the
jurisdiction of this office or whether Brown's lacks state authority to
handle controlled substances.'' R.D. at 2 n2. The ALJ then noted that
``the Government elected to present evidence that Brown's . . . is
currently without state authority to handle and dispense controlled
substances.'' Id. The ALJ then proceeded to exercise jurisdiction over
the matters involving both Brown's and Bolling, but provided no
explanation as to why he was doing so with respect to Brown's.
Moreover, the ALJ did not make the requisite finding as to the
registration status of either Brown's or Bolling. See Sharad C. Patel,
80 FR 28,693, 28,694 n.3 (2015).
While the ALJ noted that neither Brown's nor Bolling had filed a
response to the Government's motion, he addressed the arguments raised
by Bolling Pharmacy in its Hearing Request. R.D. at 3-4. The ALJ noted
that George R. Bolling, Sr. (Bolling Apothecary's owner) had filed a
renewal application with the State Board the day after he bought the
store and included a copy of a warranty deed executing a transfer of
the store to him from one George R. Bolling, Jr. Id. at 3-4. The ALJ
found, however, that ``nowhere in the request for hearing does either
of the Respondents provide any evidence contradicting the Government's
position that both Bolling and Brown['s] lack state authority to handle
and dispense controlled substances.'' R.D. at 4.\1\ The ALJ thus
concluded that the ``Respondents do not have authority to handle and
dispense controlled substances in the State of Alabama, the
jurisdiction where each is licensed by the DEA to handle and dispense
such substances.'' Id. at 4. The ALJ then granted the Government's
Motion for Summary Disposition and ``recommended that Respondents' DEA
Certificate of Registration . . . be revoked and that any pending
application . . . be denied.'' Id. at 5.
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\1\ The ALJ also rejected the contention of Bolling's owner that
the pharmacy ``ha[d] authority'' until either his state license or
his DEA registration was physically removed by a person identified
only as the supervisor of a DEA Diversion Investigator. R.D. at 4
(quoting Bolling Pharmacy Request for Hearing, at 1). As the ALJ
correctly explained, it is the Board of Pharmacy's Emergency
Suspension Order ``and not the presence or absence of the physical
license that supports the Government's motion.'' Id.
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Neither party filed exceptions to the Recommended Decision.
Thereafter, on August 3, 2015, the ALJ forwarded the record to this
Office for Final Agency Action.
Having reviewed the record, I adopt the ALJ's Recommended Decision
only with respect to Bolling Apothecary. With respect to Brown's, I
find that the Government did not establish that it properly served the
Show Cause Order. Moreover, even if the Government had established
service, I would reject the ALJ's decision as to Brown's, because in
the absence of a hearing request, the ALJ had no authority to rule on
the issue of whether its registration should be revoked.
As for whether service was proper, 21 U.S.C. 824(c) provides that
``[b]efore taking action pursuant to this section . . . the Attorney
General shall serve upon the . . . registrant an order to show cause
why registration should not be . . . revoked[] or suspended.''
(emphasis added). According to the Government's Notice of Service, the
Government did not serve the Show Cause Order ``upon the . . .
[R]egistrant,'' id., but rather on an attorney, who according to the
Government ``accepted service by email of the Order to Show Cause on
behalf of Brown's . . . and its owner George Bolling, Jr. on June 2,
2015.'' Notice of Service, at 1.
However, ``[n]umerous Federal Courts have held that `[t]he mere
relationship between a defendant and his attorney does not, in itself,
convey authority to accept service.' '' Harbinson v. Commonwealth of
Virginia, 2010 WL 3655980, at *9 (E.D. Va. Aug. 11, 2010) (quoting
Davies v. Jobs & Adverts Online, Gmbh, 94 F.Supp.2d 719, 722 (E.D. Va.
2000)). See also United States v. Ziegler Bolt & Parts Co., 111 F.3d
878, 881 (Fed. Cir. 1997); Grandbouche v. Lovell, 913 F.2d 835, 837
(10th Cir. 1990); Ransom v. Brennan, 437 F.2d 5134, 518-19 (5th Cir.
1971). ```Rather, the party seeking to establish the agency
relationship must show ``that the attorney exercised authority beyond
the attorney-client relationship, including the power to accept
service.'' ' '' Harbinson, 2010 WL 3655980, at *9 (quoting Davies, 94
F.Supp.2d at 722 (quoting Ziegler, 111 F.3d at 881)).
While an attorney's authority to act as an agent for the acceptance
of process ``may be implied from surrounding circumstances indicating
the intent of'' his client, In re Focus Media Inc., 387 F.3d 1077, 1082
(9th Cir. 2004) (other citation and internal quotations omitted), ``an
agent's authority to act cannot be established solely from the agent's
actions.'' Id. at 1084. ``Rather,
[[Page 57395]]
the authority must be established by an act of the principal.'' Id.
(citing FDIC v. Oaklawn Apartments, 959 F.2d 170, 175 (10th Cir. 1992)
(emphasis added)).
With respect to Brown's, even assuming that the attorney it served
with the Show Cause Order was in an attorney-client relationship with
the pharmacy, the Government has produced no evidence establishing that
Brown's authorized the attorney to accept service of the Order on its
behalf. See David M. Lewis, 78 FR 36591, 36591 (2013) (holding service
on attorney was improper where only evidence offered by Government was
that ``the attorney requested to take possession of the Order'')
(citing Focus Media, 387 F.3d at 1084)). Accordingly, I find that the
Government did not accomplish service on Brown's.
Even if I concluded otherwise, under the Agency's regulations, a
hearing request must be submitted by the applicant/registrant to vest
jurisdiction over the matter in the Office of Administrative Law
Judges. See 21 CFR 1301.42 (``If requested by a person entitled to a
hearing, the Administrator shall hold a hearing for the purpose of
receiving factual evidence regarding the issues involved in the denial,
revocation or suspension of any registration.''); id. Sec. 1301.43(a)
(``Any person entitled to a hearing . . . and desiring a hearing shall,
within 30 days after the date of receipt of the order to show cause . .
. file with the Administrator a written request for a hearing in the
form prescribed . . . .''); id. Sec. 1301.43(d) (``If any person
entitled to a hearing . . . fails to file a request for a hearing . . .
such person shall be deemed to have waived the opportunity for a
hearing . . . unless such person shows good cause for such failure.'').
Because in contrast to Bolling, Brown's never filed a hearing request,
the ALJ had no authority to offer ``the Government the option of
providing evidence and arguments regarding the issue of . . . whether
Brown's lacks state authority to handle controlled substances,'' R.D.
2, at n.2; and he had no authority to rule on the issue.\2\
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\2\ According to the Show Cause Order, Brown's registration was
due to expire on July 31, 2015, and the registration records of the
Agency, of which I take Official Notice, see 5 U.S.C. 556(e), show
that Brown's allowed its registration to expire on July 31, 2015
(before the ALJ forwarded the record) and has not filed a renewal
application. See Patel, 80 FR at 28,694 n.3. In any event, because
the Government did not serve Brown's, the matter of its registration
is not before me.
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As for Bolling Discount Apothecary, its owner attached a copy of
its registration with his Request for Hearing, which shows that his
registration does not expire until July 31, 2017, thus rendering a
remand to establish jurisdiction unnecessary. Having reviewed the
Board's Emergency Suspension Order, I adopt the ALJ's finding that the
pharmacy does not have authority to dispense controlled substances in
Alabama, the State in which it is registered with DEA, and that
therefore, it no longer meets the statutory definition of a
practitioner. See 21 U.S.C. 802(21) (``The term `practitioner' means a
. . . pharmacy . . . licensed, registered, or otherwise permitted, by .
. . the jurisdiction in which [it] practices . . . to . . . dispense .
. . a controlled substance in the course of professional
practice[.]''). See also 21 U.S.C. 823(f). Accordingly, I will order
that Respondent Bolling Discount Pharmacy's registration be revoked and
that any pending application to renew or modify its registration be
denied. See 21 U.S.C. 824(a)(3); see also R.D. at 4 n.10 (collecting
cases).
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 28
CFR 0.100(b), I order that DEA Certificate of Registration AB9375456
issued to Bolling Apothecary be, and it hereby is, revoked. I further
order that any application of Bolling Apothecary to renew or modify its
registration be, and it hereby is, denied. This Order is effective
immediately.\3\
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\3\ For the same reasons that led the Board to order the
emergency suspension of Respondent's pharmacy license (i.e., the
extensive allegations that it was diverting controlled substances),
I find that the public interest necessitates that this Order be
effective immediately. 21 CFR 1316.67.
Dated: September 15, 2015.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2015-24126 Filed 9-22-15; 8:45 am]
BILLING CODE 4410-09-P
