[Federal Register Volume 79, Number 165 (Tuesday, August 26, 2014)]
[Notices]
[Pages 50945-50947]
From the Federal Register Online via the Government Publishing 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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