On September 9, 2010, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Robert Leigh Kale, M.D. (Registrant), of Fort Smith, Arkansas. Start Printed Page 48899The Show Cause Order proposed the revocation of Registrant's DEA Certificate of Registration, BK9514375, as a practitioner in Schedules II through V, on the ground that he does “not have authority to practice medicine or handle controlled substances in the state of Arkansas.” Show Cause Order at 1 (citing 21 U.S.C. 824(a)(3)).
The Show Cause Order alleged that as a result of action by the Arkansas State Medical Board, Registrant was “without authority to handle controlled substances in the State of Arkansas, the state in which [he is] registered with DEA,” and that therefore, his registration was subject to revocation. Id. (citing cases). 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).
On September 10, 2010, the Government initially attempted to serve the Show Cause Order on Registrant by certified mail to him at the address of his registered location. However, the mailing was returned and marked “Returned to Sender” and “Vacant.” GX E. The Government then attempted to serve the Show Cause Order by certified mail to him at his last known address in Oklahoma, where he also previously held a state license. GXs C & F. However, this package was returned as “unclaimed.” GX F.
On October 21, 2010, the Government then sent the Show Cause Order as an attachment to an e-mail which was sent to Respondent at an address that he had previously provided to DEA. GX G. In the accompanying e-mail, the Government wrote: “Upon receiving this, please confirm receipt via email.” Id. According to the Government's counsel, he “has not received a response to this e-mail.” Req. for Final Agency Action at 2. The Government's counsel further represents that upon sending the e-mail, he did not receive an error message or a message that the e-mail was undeliverable. Govt's Statement Regarding Service of the Order to Show Cause, at 1.
On January 7, 2011, the Government filed a Request for Final Agency Action and the Investigative Record with this Office. Req. for Final Agency Action, at 3. Therein, the Government requests that I find that Registrant has waived his right to a hearing because more than thirty days have now passed since the date of service of the Show Cause Order, and that neither Registrant, nor anyone purporting to represent him, has requested a hearing or submitted a written statement in lieu of a hearing. Id. at 1. The Government also requests that I issue a Final Order revoking Registrant's registration.
Before proceeding to the merits, it is necessary to determine whether the means employed by the Government to serve the Show Cause Order on Registrant were constitutionally sufficient. The Supreme Court has long held “that due process requires the government 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).
In Jones, the Court further noted that its cases “require the government to consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case.” Id. at 230. The Court cited with approval its decision in Robinson v. Hanrahan, 409 U.S. 38 (1972), where it “held that notice of forfeiture proceedings sent to a vehicle owner's home address was inadequate when the State knew that the property owner was in prison.” Jones, 547 U.S. at 230. See also Robinson, 409 U.S. at 40 (“[T]he State knew that appellant was not at the address to which the notice was mailed * * * since he was at that very time confined in * * * jail. Under these circumstances, it cannot be said that the State made any effort to provide notice which was `reasonably calculated' to apprise appellant of the pendency of the * * * proceedings.”); Covey v. Town of Somers, 351 U.S. 141 (1956) (holding that notice by mailing, publication, and posting was inadequate when officials knew that recipient was incompetent).
The Jones Court further explained that “under Robinson and Covey, the government's knowledge that notice pursuant to the normal procedure was ineffective triggered an obligation on the government's part to take additional steps to effect notice.” 547 U.S. at 230. The Court also noted that “ ` “a party's ability to take steps to safeguard its own interests [such as by updating his address] does not relieve the State of its constitutional obligation.” ' ” Id. at 232 (quoting Brief for United States as Amicus Curiae 16 n.5 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799 (1983))). However, the Government is not required to undertake “heroic efforts” to find a registrant. Dusenbery v. United States, 534 U.S. 161, 170 (2002). Nor is actual notice required. Id.
Thus, in Jones, the Court held that where the State had received back a certified mailing of process as unclaimed and took “no further action” to notify the property owner, the State did not satisfy due process. 547 U.S. at 230. Rather, the State was required to “take further reasonable steps if any were available.” Id.
I conclude that the Government has satisfied its obligation under the Due Process Clause “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.’ ” Id. at 226 (quoting Mullane, 339 U.S. at 314). Here, following the failure of the first attempt at service, the Government then attempted to serve Registrant by certified mail to him at his last known address in Oklahoma, where he also practices. While Jones suggests that once this mailing was returned as unclaimed, the Government could have satisfied its constitutional obligation simply by mailing the Show Cause Order by regular mail, see id. at 234-35, the Government then attempted to serve Registrant by e-mailing the Order to him.
Several courts have held that the e-mailing 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); see also 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). Start Printed Page 48900While courts have recognized that use of e-mail 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, I conclude that the use of e-mail to serve Registrant satisfied due process because service was made to an e-mail address which Registrant provided to the Agency and the Government did not receive back either an error or undeliverable message.
Having found that the service of the Show Cause Order was constitutionally adequate, I further find that Respondent has waived his right to a hearing or to submit a written statement in lieu of a hearing. I therefore issue this Decision and Final Order based on relevant evidence contained in the Investigative Record submitted by the Government. 21 CFR 1301.43(d) and (e). I make the following additional findings of fact.
Registrant is an anesthesiologist and the holder of DEA Certificate of Registration BK9514375, which authorizes him to dispense controlled substances in Schedules II through V as a practitioner, at the registered address of 2300 South 57th Street, Suite 11, Fort Smith, Arkansas 72903. See GX A. His registration expires on December 31, 2011. Id.
On April 7, 2009, the Arkansas State Medical Board (Arkansas Board) issued an Emergency Order of Suspension and Notice of Hearing charging Registrant with violations of the Arkansas Medical Practices Act, including that he violated a statute or rule governing the practice of medicine by a medical licensing authority or agency of another State. See GX B, at 1 (citing Ark. Code Ann. § 17-95-409(a)(2)(r)). More specifically, the Arkansas Board charged that following a hearing, on March 31, 2009, the Oklahoma Board of Medical Licensure and Supervision found that Registrant had violated numerous provisions of the Oklahoma Statutes and Administrative Code and was guilty of Unprofessional Conduct; the Oklahoma Board thus revoked his Oklahoma medical license. Id. at 2 (citations omitted). The Arkansas Board thus suspended Registrant's license to practice medicine “on an emergency basis, pending a disciplinary hearing * * * or further orders of the Board.” Id. at 3.
Registrant subsequently allowed his Arkansas medical license to expire; his license remains in inactive status as of the date of this order. GX C. I therefore find that Registrant is currently without authority to dispense controlled substances under the laws of the State in which he is registered with DEA.
Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in the “jurisdiction in which he practices” in order to maintain a DEA registration. See 21 U.S.C. 802(21) (“[t]he term `practitioner' means a physician * * * licensed, registered, or otherwise permitted, by * * * the jurisdiction in which he practices * * * to distribute, dispense, [or] administer * * * a controlled substance in the course of professional practice”). See also id. § 823(f) (The Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.”). As these provisions make plain, possessing authority under state law to handle controlled substances is an essential condition for obtaining and maintaining a DEA registration.
The CSA further authorizes the Agency to revoke a registration “upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances.” 21 U.S.C. 824(a)(3). Moreover, DEA has consistently held that revocation of a registration is warranted whenever a practitioner's state authority to dispense controlled substances has been suspended or revoked, and has done so even when 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 and at which he may ultimately prevail. See Robert Wayne Mosier, 75 FR 49950 (2010) (“revocation is warranted * * * even in those instances where a practitioner's state license has only been suspended, and there is the possibility of reinstatement”); accord Bourne Pharmacy, 72 FR. 18273, 18274 (2007). Finally, because holding state authority is a statutory requirement for registration as a practitioner, see 21 U.S.C. 802(21) and 823(f), DEA has held that revocation is warranted even when a registrant has merely allowed his registration to expire. James Stephen Ferguson, 75 FR 49994, 49995 (2010); Mark L. Beck, 64 FR 40899, 40900 (1999). See also Anne Lazar Thorn, 62 FR 12847, 12848 (1997) (“the controlling question is not whether a practitioner's license to practice medicine in the state is suspended or revoked; rather, it is whether the Respondent is currently authorized to handle controlled substances”).
As found above, on April 7, 2010, the Arkansas State Medical Board suspended Registrant's state medical license. Moreover, his Arkansas license is now expired and in inactive status. Because Registrant is without authority to dispense controlled substances in Arkansas, the State in which he holds the DEA registration which is the subject of this proceeding, he is not entitled to maintain the registration. See 21 U.S.C. 802(21), 823(f), 824(a)(3). Accordingly, Registrant's registration will be revoked and any pending application will be denied.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b) and 0.104, I order that DEA Certificate of Registration, BK9514375, issued to Robert Leigh Kale, M.D., be, and it hereby is, revoked. I further order that any pending application of Robert Leigh Kale, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.Start Signature
Dated: July 27, 2011.
Michele M. Leonhart,
1. The CSA states that “[b]efore taking action pursuant to [21 U.S.C. 824(a)] * * * the Attorney General shall serve upon the * * * registrant an order to show cause why registration should not be * * * revoked or suspended.” 21 U.S.C. 824(c). In contrast to the schemes challenged in Jones and Robinson, which provided for service to the property owner's address as listed in state records, neither the CSA nor Agency regulations state that service shall be made at any particular address such as the registered location. In any event, while in most cases, service to a registrant's registered location provides adequate notice, the Supreme Court's clear instruction is that the Government cannot ignore “unique information about an intended recipient” when its seeks to serve that person with notice of a proceeding that it is initiating. Jones, 547 U.S. at 230.Back to Citation
2. To make clear, however, the use of e-mail to serve an Order to Show Cause is acceptable only after traditional methods of service have been tried and been ineffective.Back to Citation
3. Under Arkansas law, the “Board may revoke an existing license, impose penalties as listed in § 17-95-410, or refuse to issue a license in the event the holder or applicant * * * has committed any of the acts or offenses defined in this section to be unprofessional conduct.” Ark. Code Ann. § 17-95-409(a)(1). The statute further provides that “[t]he words `unprofessional conduct' as used in the Arkansas Medical Practices Act, § 17-95-201 et seq., § 17-95-301 et seq., and § 17-95-401 et seq., mean * * * [h]aving been found in violation of a statute or a rule governing the practice of medicine by a medical licensing authority or agency of another state.” Id. § 17-95-409(a)(2)(r).Back to Citation
[FR Doc. 2011-20053 Filed 8-8-11; 8:45 am]
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