[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]
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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]
BILLING CODE 4410-09-P