Registrant Actions - 2011
[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Notices]
[Pages 48898-48900]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20053]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Robert Leigh Kale, M.D., Decision and Order
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.
[[Page 48899]]
The 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.\1\ 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).
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\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.
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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).
[[Page 48900]]
While 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.\2\
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\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.
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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.
Findings
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. Sec. 17-95-409(a)(2)(r)).\3\
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.
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\3\ Under Arkansas law, the "Board may revoke an existing
license, impose penalties as listed in Sec. 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. Sec. 17-95-409(a)(1). The
statute further provides that "[t]he words 'unprofessional conduct'
as used in the Arkansas Medical Practices Act, Sec. 17-95-201 et
seq., Sec. 17-95-301 et seq., and Sec. 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. Sec. 17-95-409(a)(2)(r).
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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.
Discussion
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. Sec. 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.
Order
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.\4\
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\4\ For the same reasons cited by the Arkansas Board as
warranting its Emergency Order of Suspension, I find that the public
interest necessitates that this Order be effective immediately. 21
CFR 1316.67.
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Dated: July 27, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-20053 Filed 8-8-11; 8:45 am]
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NOTICE: This is an unofficial version. An official version of this publication may be obtained
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