FR Doc E8-1021 [Federal Register: January 23, 2008 (Volume
73, Number 15)] [Notices] [Page 3997-3998] From the Federal
Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja08-78]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 03-21]
Medicine Shoppe-Jonesborough; Denial of Motion for Stay
On December 13, 2007, I, the Deputy Administrator of the Drug
Enforcement Administration, having concluded that the continued
registration of the Medicine Shoppe-Jonesborough (Respondent) as
a retail pharmacy "is inconsistent with the public interest,'' 21
U.S.C. 823(f), ordered that its registration be revoked
effective February 1, 2008. 73 FR 363, 388 (2008). Thereafter,
on December 28, 2007, Respondent, through its counsel, moved to
stay the decision and order to allow it to "appeal the decision
to the United States Court of Appeals.'' Motion for Stay at 1.
As grounds for the stay, Respondent contends that it "and its
owner will suffer irreparable harm by the denial of a stay
pending the conclusion of the appeal'' because "[t]he store will
have to be closed or liquidated and the source
[[Page 3998]]
of the family's income will be gone.'' Id. Respondent further
contends that granting the stay will not cause irreparable harm
to the public because the "matter has been pending now for
almost five years.'' Id. Relatedly, Respondent argues that "[t]here
has been no allegation of any wrongdoing during that period.''
Id.
Respondent further contends that it has "a substantial
likelihood of success'' on the merits of its appeal. Id. In this
regard, Respondent relies on the Administrative Law Judge's
Recommended Decision, which concluded that its continued
registration would be consistent with the public interest.
Respondent thus argues that the ALJ's "findings of fact
certainly indicate that reasonable people can disagree strongly
as to whether the respondent was operating in violation of the
public interest.'' Id. at 1-2.
In determining whether a stay should be granted, DEA applies
the traditional four-factor test used by the courts. The factors
are: (1) Whether the movant has demonstrated a substantial
likelihood of success on the merits; (2) whether the movant will
be irreparably injured absent a stay; (3) whether issuance of a
stay will substantially injure the other interested parties; and
(4) where the public interest lies. See, e.g., ACLU v. NSA, 467
F.3d 590 (6th Cir. 2006); Pearce v. DEA, 836 F.2d 1028, 1029
(6th Cir. 1988). Moreover, as the Sixth Circuit recently
explained, "[m]ore than a possibility of success must be shown,
and even if a movant demonstrates irreparable harm that
decidedly outweighs any potential harm to the nonmoving party if
a stay is granted, he is still required to show, at a minimum,
`serious questions going to the merits.' '' ACLU v. NSA, 467
F.3d at 590 (citations omitted in original).
Here, Respondent asserts that it will suffer irreparable harm
because the revocation of its registration will result in its
closure or liquidation. Motion at 1. Respondent, however, offers
no evidence that the loss of its registration has also resulted
in the loss of its state pharmacy license, and presumably,
Respondent retains authority under state law to dispense
non-controlled prescription drugs. Moreover, Respondent can also
sell drugs approved for over-the-counter marketing and numerous
other non-drug products. Accordingly, while the revocation of
its registration may cause it to lose some of its business,
Respondent has not established that it will suffer irreparable
harm to the extent it alleges.
Furthermore, even assuming that Respondent has established
that it will be irreparably harmed, it has not raised any "serious
questions going to the merits.'' ACLU v. NSA, 467 F.3d at 590.
While Respondent invokes the factual findings and conclusions of
law contained in the ALJ's opinion in support of its contention
that it has "a substantial likelihood of success on the
merits,'' it has not demonstrated that a single factual finding
of the Agency is unsupported by substantial evidence. See 5
U.S.C. 706(2). Nor has it pointed to any specific error in the
Agency's legal conclusions. Id. Respondent therefore has not
established "a serious question going to the merits of his
appeal, much less a substantial likelihood of success'' on the
merits of its petition for review to warrant the issuance of a
stay.\1\ Pearce, 836 F.2d. at 1029.
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\1\ Respondent further cites the lengthy
time it took to resolve this proceeding to argue that the
issuance of a stay will not harm the public. Motion at 1.
While it is true that this proceeding took entirely too long
to resolve, there were multiple causes of the delay including,
but not limited to, the lengthy continuance which Respondent
was granted to prepare its defense. Having found--based on the
extensive evidence that Respondent filled prescriptions in
violation of federal law, could not properly account for its
controlled substances, and offered no evidence that it had
reformed its practices--that Respondent's "continued
registration is inconsistent with the public interest,'' 73 FR
at 388, I further conclude that Respondent has failed to show
that the public interest lies with staying the order of
revocation.
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Accordingly, Respondent's motion for a stay of the order of
revocation is denied.
Dated: January 10, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-1021 Filed 1-22-08; 8:45 am]
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