E8-1021. 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 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.

Accordingly, Respondent's motion for a stay of the order of revocation is denied.

Dated: January 10, 2008.

Michele M. Leonhart,

Deputy Administrator.

Footnotes

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.