80 FR 57393 - Brown's Discount Apothecary, BC, Inc., and Bolling Apothecary, Inc.

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 80, Issue 184 (September 23, 2015)

Page Range		57393-57395
FR Document		2015-24126
Federal Register, Volume 80 Issue 184 (Wednesday, September 23, 2015)
[Federal Register Volume 80, Number 184 (Wednesday, September 23, 2015)]
[Notices]
[Pages 57393-57395]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-24126]


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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
Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices 57393

in which he practices.’’). DEA has long Int’l Assoc. of Bridge, Structural & forthwith 3 and any pending
held that possession of authority under Ornamental Ironworkers, AFL–CIO, 549 applications for renewal be DENIED.
state law to dispense controlled F.2d 634 (9th Cir. 1977); United States Dated: July 23, 2015.
substances is an essential condition for v. Consol. Mines & Smelting Co., 455 John J. Mulrooney II,
obtaining and maintaining a DEA F.2d 432, 453 (9th Cir. 1971). Thus, it Chief Administrative Law Judge.
registration. Serenity Café, 77 FR 35027, is well-settled that, where no genuine [FR Doc. 2015–24128 Filed 9–22–15; 8:45 am]
35028 (2012); David W. Wang, 72 FR question of fact is involved or when the BILLING CODE 4410–09–P
54297, 54298 (2007); Sheran Arden material facts are agreed upon, a
Yeates, 71 FR 39130, 39131 (2006); plenary, adversarial administrative
Dominick A. Ricci, M.D., 58 FR 51104 proceeding is not required. See Jesus R. DEPARTMENT OF JUSTICE
(1993); Bobby Watts, M.D., 53 FR 11919 Juarez, M.D., 62 FR 14945 (1997);
(1988). Because ‘‘possessing authority Dominick A. Ricci, M.D., 58 FR 51104 Drug Enforcement Administration
under state law to handle controlled (1993). Here, the supplied BML Order [Docket No. 15–23]
substances is an essential condition for establishes, and the Respondent does
holding a DEA registration,’’ this not contest, that the Respondent is Brown’s Discount Apothecary, BC,
Agency has consistently held that ‘‘the currently without authorization to Inc., and Bolling Apothecary, Inc.
CSA requires the revocation of a handle controlled substances in On May 18, 2015, the Deputy
registration issued to a practitioner who Kentucky, the jurisdiction where the Assistant Administrator, Office of
lacks [such authority].’’ Roy Chi Lung, Respondent holds the DEA COR that is Diversion Control, Drug Enforcement
M.D., 74 FR 20346, 20347 (2009); see the subject of this litigation. Administration, issued an Order to
also Scott Sandarg, D.M.D., 74 FR Summary disposition of an Show Cause to Brown’s Discount
17528, 174529 (2009); John B. Freitas, administrative case is warranted where, Apothecary, BC, Inc. (holder of DEA
D.O., 74 FR 17524, 17525 (2009); Roger as here, ‘‘there is no factual dispute of Certificate of Registration FB3717153),
A. Rodriguez, M.D., 70 FR 33206, 33207 substance.’’ See Veg-Mix, Inc., 832 F.2d of Jasper, Alabama and Bolling
(2005); Stephen J. Graham, M.D., 69 FR 601, 607 (D.C. Cir. 1987) (‘‘an agency Apothecary, Inc., (holder of DEA
11661 (2004); Abraham A. Chaplan, may ordinarily dispense with a hearing Certificate of Registration AB9375456),
M.D., 57 FR 55280 (1992); see also when no genuine dispute exists’’).2 of Fayette, Alabama. Show Cause Order,
Harrell E. Robinson, M.D., 74 FR 61370, While not unsympathetic to the at 1. The Show Cause Order proposed
61375 (2009).1 ‘‘[R]evocation is procedural issues raised by the the revocation of each pharmacy’s DEA
warranted even where a practitioner’s Respondent in his state administrative Certificate of Registration, on the ground
state authority has been summarily proceedings, under current Agency that on April 7, 2015, the Alabama State
suspended and the State has yet to precedent, the disposition of the Board of Pharmacy issued an Emergency
provide the practitioner with a hearing
Government’s motion is wholly Suspension Order suspending each
to challenge the State’s action at which
dependent upon a single issue: whether pharmacy’s Alabama Controlled
he may ultimately prevail.’’ Kamal
he continues to possess authority under Substances Permit, and that therefore,
Tiwari, M.D., 76 FR 71604, 71606,
state law to handle controlled each pharmacy is ‘‘without authority to
(2011); see also Bourne Pharmacy, Inc.,
substances—which he does not. handle controlled substances in
72 FR 18273, 18274 (2007); Anne Lazar
Thorn, M.D., 62 FR 12847 (1997). At this juncture, no genuine dispute Alabama, the [S]tate in which each is
Additionally, Agency precedent has exists over the fact that the Respondent registered with the DEA.’’ Id. at 1–2.
lacks state authority to handle On May 20, 2015, a Diversion
established that the existence of other
controlled substances in the state of Investigator from the Birmingham
proceedings in which the Respondent is
Kentucky. Because the Respondent District Office personally served the
involved is not a basis upon which to
justify a stay of DEA administrative lacks such state authority, both the plain Order to Show Cause on Bolling
enforcement proceedings. Grider Drug language of applicable federal statutory Apothecary, Inc. Notice of Service of
#1 & Grider Drug #2, 77 FR 44069, provisions and Agency interpretive Order to Show Cause, at 1. According to
44104 n.97 (2012). precedent dictate that he is not entitled the Government, on June 2, 2015, an
Congress does not intend for to maintain his DEA registration. attorney ‘‘accepted service by email of
administrative agencies to perform Simply put, there is no contested factual the Order to Show Cause on behalf of
meaningless tasks. See Philip E. Kirk, matter adducible at a hearing that would Brown’s Discount Apothecary and its
M.D., 48 FR 32887 (1983), aff’d sub provide DEA with the authority to allow owner George Bolling, Jr. Id.
nom. Kirk v. Mullen, 749 F.2d 297 (6th the Respondent to continue to hold his On June 1, 2015, George R. Bolling,
Cir. 1984); see also Puerto Rico COR. Sr., owner of Respondent Bolling
Aqueduct & Sewer Auth. v. EPA, 35 Accordingly, I hereby Apothecary, Inc., filed a request for a
F.3d 600, 605 (1st Cir. 1994); NLRB v. hearing on behalf of the pharmacy with
GRANT the Government’s Motion for the Office of Administrative Law Judges
1 But see 21 U.S.C. 824(a)(3) (2012) (‘‘A
Summary Disposition; and further
registration pursuant to section 823 of this title to RECOMMEND that the Respondent’s 3 While Agency precedent has held that a stay of

manufacture, distribute, or dispense a controlled DEA registration be REVOKED DEA administrative proceedings is unlikely ever to
substance may be suspended or revoked by the be justified by the existence of ancillary
Attorney General upon a finding that the registrant proceedings (Grider Drug #1 & Grider Drug, #2, 77
2 Even assuming, arguendo, the possibility that FR 44069, 44104 n.97 (2012)), the Agency recently
. . . has had his State license or registration
the Respondent’s state controlled substances held revocation proceedings in abeyance at the
mstockstill on DSK4VPTVN1PROD with NOTICES

suspended, revoked, or denied by competent State
authority . . . .’’) (emphasis added). Thus, privileges could be reinstated, summary disposition post-hearing adjudication level for a lengthy period
notwithstanding the Agency’s extensive body of would still be warranted because under Agency pending the resolution of criminal fraud charges
internal precedent to the contrary, the plain precedent ‘‘revocation is also appropriate when a and ‘‘pending resolution of [a state] Board
language of section 824(a)(3) provides that loss of state license has been suspended, but with the proceeding.’’ Odette L. Campbell, M.D., 80 FR
state authority constitutes a discretionary—not possibility of future reinstatement,’’ Rodriguez, 70 41062, 41064 (2015). However, inasmuch as no stay
mandatory—basis for revocation. However, FR 33207 (citations omitted), and even where there was sought by the Respondent here, and good cause
inasmuch as the Agency precedent is clear on the is a judicial challenge to the state medical board does not appear to exist in any event, the
matter, I am without authority or inclination to action actively pending in the state courts. Michael Government’s motion will be granted and the case
render a contrary interpretation. G. Dolin, M.D., 65 FR 5661, 5662 (2000). forwarded for a final order.

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57394 Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices

(OALJ). Letter of Bolling Apothecary, On July 6, 2015, the ALJ issued his Neither party filed exceptions to the
Inc., to Hearing Clerk, OALJ (May 23, Recommended Decision. Addressing the Recommended Decision. Thereafter, on
2015). Mr. Bolling did not, however, issue of whether he had jurisdiction to August 3, 2015, the ALJ forwarded the
request a hearing on behalf of Brown’s rule on the matter of Brown’s record to this Office for Final Agency
Discount Apothecary, and at no point registration, the ALJ explained that he Action.
has any person filed a request for a had given ‘‘the Government the option Having reviewed the record, I adopt
hearing on behalf of Brown’s, or in the of providing evidence and arguments the ALJ’s Recommended Decision only
alternative, filed a written statement in regarding the issue of whether Brown’s with respect to Bolling Apothecary.
lieu of a hearing. See 21 CFR 1301.43(c) . . . has timely invoked the jurisdiction With respect to Brown’s, I find that the
& (d). of this office or whether Brown’s lacks Government did not establish that it
Both matters were nonetheless placed state authority to handle controlled properly served the Show Cause Order.
on the docket of the OALJ and assigned substances.’’ R.D. at 2 n2. The ALJ then Moreover, even if the Government had
to Administrative Law Judge (ALJ) noted that ‘‘the Government elected to established service, I would reject the
Christopher B. McNeil. Recommended present evidence that Brown’s . . . is ALJ’s decision as to Brown’s, because in
Decision, at 2. On June 2, the ALJ issued currently without state authority to the absence of a hearing request, the ALJ
an ‘‘Order For Briefing On Allegations handle and dispense controlled had no authority to rule on the issue of
Concerning Respondents’ Lack Of State substances.’’ Id. The ALJ then whether its registration should be
Authority’’ (hereinafter, Briefing Order). proceeded to exercise jurisdiction over revoked.
Therein, the ALJ found that there was the matters involving both Brown’s and As for whether service was proper, 21
‘‘no request for a hearing on behalf of Bolling, but provided no explanation as U.S.C. 824(c) provides that ‘‘[b]efore
Brown’s Discount Apothecary.’’ Briefing to why he was doing so with respect to taking action pursuant to this section
Order, at 2. He then provided the parties Brown’s. Moreover, the ALJ did not . . . the Attorney General shall serve
with the ‘‘opportunity to establish make the requisite finding as to the upon the . . . registrant an order to
whether grounds exist with respect to registration status of either Brown’s or show cause why registration should not
either [pharmacy] to advance this matter Bolling. See Sharad C. Patel, 80 FR be . . . revoked[] or suspended.’’
to hearing, or whether the two 28,693, 28,694 n.3 (2015). (emphasis added). According to the
pharmacy’s [sic] DEA . . . While the ALJ noted that neither Government’s Notice of Service, the
Registration[s] should be summarily Brown’s nor Bolling had filed a Government did not serve the Show
revoked and any pending application response to the Government’s motion, Cause Order ‘‘upon the . . .
summarily denied, without a hearing.’’ he addressed the arguments raised by [R]egistrant,’’ id., but rather on an
Id. The ALJ further ordered that ‘‘the Bolling Pharmacy in its Hearing attorney, who according to the
Government may provide evidence and Request. R.D. at 3–4. The ALJ noted that Government ‘‘accepted service by email
arguments to support the allegation that of the Order to Show Cause on behalf
George R. Bolling, Sr. (Bolling
Bolling Apothecary, Inc. lacks state of Brown’s . . . and its owner George
Apothecary’s owner) had filed a renewal
authority to handle controlled Bolling, Jr. on June 2, 2015.’’ Notice of
application with the State Board the day
substances,’’ and ‘‘may also provide Service, at 1.
after he bought the store and included However, ‘‘[n]umerous Federal Courts
evidence and arguments regarding the
a copy of a warranty deed executing a have held that ‘[t]he mere relationship
issue of whether Brown’s Discount
transfer of the store to him from one between a defendant and his attorney
Apothecary has timely invoked the
George R. Bolling, Jr. Id. at 3–4. The ALJ does not, in itself, convey authority to
jurisdiction of the Office of
found, however, that ‘‘nowhere in the accept service.’ ’’ Harbinson v.
Administrative Law Judges, or the issue
request for hearing does either of the Commonwealth of Virginia, 2010 WL
of whether [it] lacks state authority to
handle controlled substances, or both Respondents provide any evidence 3655980, at *9 (E.D. Va. Aug. 11, 2010)
issues.’’ Id. at 2–3. The ALJ’s Order also contradicting the Government’s position (quoting Davies v. Jobs & Adverts
offered Respondent the opportunity to that both Bolling and Brown[’s] lack Online, Gmbh, 94 F.Supp.2d 719, 722
file a response. Id. at 3. state authority to handle and dispense (E.D. Va. 2000)). See also United States
Thereafter, the Government filed a controlled substances.’’ R.D. at 4.1 The v. Ziegler Bolt & Parts Co., 111 F.3d 878,
Motion for Summary Disposition ALJ thus concluded that the 881 (Fed. Cir. 1997); Grandbouche v.
(hereinafter, Motion). Therein, the ‘‘Respondents do not have authority to Lovell, 913 F.2d 835, 837 (10th Cir.
Government sought the revocation of handle and dispense controlled 1990); Ransom v. Brennan, 437 F.2d
each pharmacy’s registration on the substances in the State of Alabama, the 5134, 518–19 (5th Cir. 1971). ‘‘‘Rather,
ground that the Alabama State Board of jurisdiction where each is licensed by the party seeking to establish the agency
Pharmacy had issued an Emergency the DEA to handle and dispense such relationship must show ‘‘that the
Suspension Order which suspended substances.’’ Id. at 4. The ALJ then attorney exercised authority beyond the
each pharmacy’s Alabama Controlled granted the Government’s Motion for attorney-client relationship, including
Substances Permit. Motion, at 2. The Summary Disposition and the power to accept service.’’ ’ ’’
Government supported its motion with ‘‘recommended that Respondents’ DEA Harbinson, 2010 WL 3655980, at *9
a copy of the Emergency Suspension Certificate of Registration . . . be (quoting Davies, 94 F.Supp.2d at 722
Order. Id. at Exhibit A, at 7. However, revoked and that any pending (quoting Ziegler, 111 F.3d at 881)).
the Government did not address application . . . be denied.’’ Id. at 5. While an attorney’s authority to act as
whether, given the failure of Brown’s an agent for the acceptance of process
1 The ALJ also rejected the contention of Bolling’s
mstockstill on DSK4VPTVN1PROD with NOTICES

Discount Apothecary to file a hearing ‘‘may be implied from surrounding
owner that the pharmacy ‘‘ha[d] authority’’ until
request, the ALJ had jurisdiction to either his state license or his DEA registration was
circumstances indicating the intent of’’
adjudicate the allegations with respect physically removed by a person identified only as his client, In re Focus Media Inc., 387
to it. See generally Motion, at 2–4. the supervisor of a DEA Diversion Investigator. R.D. F.3d 1077, 1082 (9th Cir. 2004) (other
While Bolling Apothecary had at 4 (quoting Bolling Pharmacy Request for Hearing, citation and internal quotations
at 1). As the ALJ correctly explained, it is the Board
requested a hearing, it did not file a of Pharmacy’s Emergency Suspension Order ‘‘and
omitted), ‘‘an agent’s authority to act
response to the Government’s motion. not the presence or absence of the physical license cannot be established solely from the
Nor did Brown’s file a response. that supports the Government’s motion.’’ Id. agent’s actions.’’ Id. at 1084. ‘‘Rather,

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Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices 57395

the authority must be established by an 31, 2017, thus rendering a remand to change, in accordance with the
act of the principal.’’ Id. (citing FDIC v. establish jurisdiction unnecessary. Paperwork Reduction Act of 1995
Oaklawn Apartments, 959 F.2d 170, 175 Having reviewed the Board’s Emergency (PRA), 44 U.S.C. 3501 et seq. Public
(10th Cir. 1992) (emphasis added)). Suspension Order, I adopt the ALJ’s comments on the ICR are invited.
With respect to Brown’s, even finding that the pharmacy does not have DATES: The OMB will consider all
assuming that the attorney it served authority to dispense controlled written comments that agency receives
with the Show Cause Order was in an substances in Alabama, the State in on or before October 23, 2015.
attorney-client relationship with the which it is registered with DEA, and ADDRESSES: A copy of this ICR with
pharmacy, the Government has that therefore, it no longer meets the applicable supporting documentation;
produced no evidence establishing that statutory definition of a practitioner. See
including a description of the likely
Brown’s authorized the attorney to 21 U.S.C. 802(21) (‘‘The term
respondents, proposed frequency of
accept service of the Order on its behalf. ‘practitioner’ means a . . . pharmacy
response, and estimated total burden
See David M. Lewis, 78 FR 36591, 36591 . . . licensed, registered, or otherwise
(2013) (holding service on attorney was may be obtained free of charge from the
permitted, by . . . the jurisdiction in
improper where only evidence offered RegInfo.gov Web site at http://
which [it] practices . . . to . . .
by Government was that ‘‘the attorney www.reginfo.gov/public/do/
dispense . . . a controlled substance in
requested to take possession of the PRAViewICR?ref_nbr=201507-1219-002
the course of professional practice[.]’’).
Order’’) (citing Focus Media, 387 F.3d at (this link will only become active on the
See also 21 U.S.C. 823(f). Accordingly,
1084)). Accordingly, I find that the day following publication of this notice)
I will order that Respondent Bolling
Government did not accomplish service or by contacting Michel Smyth by
Discount Pharmacy’s registration be
on Brown’s. telephone at 202–693–4129, TTY 202–
revoked and that any pending
Even if I concluded otherwise, under 693–8064, (these are not toll-free
application to renew or modify its
the Agency’s regulations, a hearing numbers) or by email at DOL_PRA_
registration be denied. See 21 U.S.C.
request must be submitted by the PUBLIC@dol.gov.
824(a)(3); see also R.D. at 4 n.10
applicant/registrant to vest jurisdiction Submit comments about this request
(collecting cases).
over the matter in the Office of by mail or courier to the Office of
Administrative Law Judges. See 21 CFR Order Information and Regulatory Affairs,
1301.42 (‘‘If requested by a person Pursuant to the authority vested in me Attn: OMB Desk Officer for DOL–
entitled to a hearing, the Administrator by 21 U.S.C. 824(a) and 28 CFR 0.100(b), MSHA, Office of Management and
shall hold a hearing for the purpose of I order that DEA Certificate of Budget, Room 10235, 725 17th Street
receiving factual evidence regarding the Registration AB9375456 issued to NW., Washington, DC 20503; by Fax:
issues involved in the denial, revocation Bolling Apothecary be, and it hereby is, 202–395–5806 (this is not a toll-free
or suspension of any registration.’’); id. revoked. I further order that any number); or by email: OIRA_
§ 1301.43(a) (‘‘Any person entitled to a application of Bolling Apothecary to submission@omb.eop.gov. Commenters
hearing . . . and desiring a hearing renew or modify its registration be, and are encouraged, but not required, to
shall, within 30 days after the date of it hereby is, denied. This Order is send a courtesy copy of any comments
receipt of the order to show cause . . . effective immediately.3 by mail or courier to the U.S.
file with the Administrator a written Department of Labor-OASAM, Office of
Dated: September 15, 2015.
request for a hearing in the form the Chief Information Officer, Attn:
Chuck Rosenberg, Departmental Information Compliance
prescribed . . . .’’); id. § 1301.43(d) (‘‘If
any person entitled to a hearing . . . Acting Administrator. Management Program, Room N1301,
fails to file a request for a hearing . . . [FR Doc. 2015–24126 Filed 9–22–15; 8:45 am] 200 Constitution Avenue NW.,
such person shall be deemed to have BILLING CODE 4410–09–P Washington, DC 20210; or by email:
waived the opportunity for a hearing DOL_PRA_PUBLIC@dol.gov.
. . . unless such person shows good FOR FURTHER INFORMATION CONTACT:
cause for such failure.’’). Because in DEPARTMENT OF LABOR Michel Smyth by telephone at 202–693–
contrast to Bolling, Brown’s never filed 4129, TTY 202–693–8064, (these are not
a hearing request, the ALJ had no Office of the Secretary toll-free numbers) or by email at DOL_
authority to offer ‘‘the Government the PRA_PUBLIC@dol.gov.
Agency Information Collection
option of providing evidence and
Activities; Submission for OMB Authority: 44 U.S.C. 3507(a)(1)(D).
arguments regarding the issue of . . .
whether Brown’s lacks state authority to Review; Comment Request; SUPPLEMENTARY INFORMATION: This ICR
handle controlled substances,’’ R.D. 2, at Underground Retorts seeks to extend PRA authority for the
n.2; and he had no authority to rule on ACTION: Notice. Underground Retorts information
the issue.2 collection. Regulations 30 CFR 57.22401
As for Bolling Discount Apothecary, SUMMARY: The Department of Labor sets forth the safety requirements for
its owner attached a copy of its (DOL) is submitting the Mine Safety and using a retort to extract oil from shale
registration with his Request for Health Administration (MSHA) in an underground metal or nonmetal I–
Hearing, which shows that his sponsored information collection A and I–B mine that operates in a
registration does not expire until July request (ICR) titled, ‘‘Underground combustible ore and either liberates
Retorts,’’ to the Office of Management methane or has the potential to liberate
mstockstill on DSK4VPTVN1PROD with NOTICES

2 According to the Show Cause Order, Brown’s
and Budget (OMB) for review and methane based on the history of the
registration was due to expire on July 31, 2015, and approval for continued use, without mine or the geological area in which the
the registration records of the Agency, of which I
take Official Notice, see 5 U.S.C. 556(e), show that mine is located. This presently applies
Brown’s allowed its registration to expire on July 3 For the same reasons that led the Board to order only to underground oil shale mines.
31, 2015 (before the ALJ forwarded the record) and the emergency suspension of Respondent’s The standard requires that, prior to
has not filed a renewal application. See Patel, 80 pharmacy license (i.e., the extensive allegations that
FR at 28,694 n.3. In any event, because the it was diverting controlled substances), I find that
ignition of an underground retort, the
Government did not serve Brown’s, the matter of its the public interest necessitates that this Order be mine operator must submit a written
registration is not before me. effective immediately. 21 CFR 1316.67. ignition operation plan to the

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Document Created: 2015-12-15 09:45:07
Document Modified: 2015-12-15 09:45:07
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		80 FR 57393
80 FR 57393 - Brown's Discount Apothecary, BC, Inc., and Bolling Apothecary, Inc.

DEPARTMENT OF JUSTICEDrug Enforcement Administration

Federal Register Volume 80, Issue 184 (September 23, 2015)

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
