[Federal Register Volume 78, Number 117 (Tuesday, June 18, 2013)]
[Notices]
[Page 36591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14453]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
David M. Lewis, D.M.D., Dismissal of Proceeding
On December 5, 2012, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to David M. Lewis, D.M.D. (Registrant), of
Sacramento, California. The Show Cause Order proposed the revocation of
Registrant's DEA Certificate of Registration BL7253115, and the denial
of any pending application to renew or modify his registration, on the
ground that he lacks authority to handle controlled substances in
California, the State in which he is registered with DEA. Show Cause
Order at 1 (citing 21 U.S.C. 823(f) & 824(a)(3)). Show Cause Order at
1. The Order also alleged that Registrant's registration ``will expire
by its terms on March 31, 2013.'' Id.
Specifically, the Show Cause Order alleged that on February 24,
2012, the Dental Board of California suspended Registrant's dental
license, based ``on multiple findings'' that he performed ``unnecessary
dental work'' and filed ``fraudulent insurance claims.'' Id. The Order
further alleged that as a result of the suspension, Registrant is
without authority to handle controlled substances in California, the
State in which he is registered, and therefore, his registration is
subject to revocation. Id. at 1-2 (citations omitted). 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 doing either, and the consequence for failing to do
either. Id. at 2 (citing 21 CFR 1301.43).
According to the declaration of an Agency Diversion Investigator
(DI), on December 18, 2012, he ``traveled to the office of Robert Zaro,
Esq., who is the attorney for [Registrant].'' GX 3, at 1-2. The DI
further stated that ``[a]fter [he] spoke about the nature of the [Show
Cause Order], Robert Zaro requested to take possession of the [Order]
for his client.'' Id. at 2.
Thereafter, on February 8, 2013, the Government submitted a Request
for Final Agency Action to my Office. Therein, the Government maintains
that more than thirty days have passed since the Order ``was served on
Respondent and no request for [a] hearing has been received.'' Gov.
Req. for Final Agency Action, at 1. The Government therefore seeks a
final order revoking Respondent's registration. Id.
I reject the Government's request for two reasons. First, contrary
to the Government's understanding, it has not properly served
Respondent. Second, even had I concluded that service was proper, I
would hold that the case is now moot.
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). As the DI's affidavit makes clear, the Government did
not serve the Show Cause Order ``upon the . . . [R]egistrant,'' id.,
but on an attorney who, according to the DI, is the Registrant's
attorney.
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, 111F.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, 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)).
Here, the only evidence submitted by the Government as to whether
Registrant's attorney was authorized to accept the Show Cause Order on
his behalf was the DI's statement that the attorney requested to take
possession of the Order. In short, the Government offered no evidence
of an act of the Registrant establishing that he had granted authority
to the attorney to accept process on his behalf. Focus Media, 387 F.3d
at 1084. Accordingly, I hold that the Government has not properly
served Registrant. I therefore reject its request for a final order.\1\
---------------------------------------------------------------------------
\1\ Even had I found that the Government properly served
Registrant, I would dismiss this matter as moot. As noted above,
Respondent's registration was due to expire on March 31, 2013.
Accordingly, I have taken official notice of the registration
records of this Agency. See 5 U.S.C. 556(e). Those records show that
Registrant's registration expired on March 31, 2013, that he did not
file a renewal application (whether timely or not), and that his
registration was retired on May 1, 2013.
It is well settled that ``[i]f a registrant has not submitted a
timely renewal application prior to the expiration date, then the
registration expires and there is nothing to revoke.'' Ronald J.
Riegel, 63 FR 67132, 67133 (1998); see also William W. Nucklos, 73
FR 34330 (2008). So too, because Registrant did not file a renewal
application, there is no application to act upon. See Nucklos, 73 FR
at 34330. Accordingly, there is neither a registration, nor an
application, to act upon, and had the Government properly served
Registrant, I would nonetheless hold that the case 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
issued to David M. Lewis, D.M.D., be, and it hereby is, dismissed.
Dated: June 11, 2013.
Thomas M. Harrigan,
Deputy Administrator.
[FR Doc. 2013-14453 Filed 6-17-13; 8:45 am]
BILLING CODE 4410-09-P