2013-14453. David M. Lewis, D.M.D., Dismissal of Proceeding

On December 5, 2012, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to David M. Lewis, D.M.D. (Registrant), of Sacramento, California. The Show Cause Order proposed the revocation of Registrant's DEA Certificate of Registration BL7253115, and the denial of any pending application to renew or modify his registration, on the ground that he lacks authority to handle controlled substances in California, the State in which he is registered with DEA. Show Cause Order at 1 (citing 21 U.S.C. 823(f) & 824(a)(3)). Show Cause Order at 1. The Order also alleged that Registrant's registration “will expire by its terms on March 31, 2013.” Id.

Specifically, the Show Cause Order alleged that on February 24, 2012, the Dental Board of California suspended Registrant's dental license, based “on multiple findings” that he performed “unnecessary dental work” and filed “fraudulent insurance claims.” Id. The Order further alleged that as a result of the suspension, Registrant is without authority to handle controlled substances in California, the State in which he is registered, and therefore, his registration is subject to revocation. Id. at 1-2 (citations omitted). 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).

According to the declaration of an Agency Diversion Investigator (DI), on December 18, 2012, he “traveled to the office of Robert Zaro, Esq., who is the attorney for [Registrant].” GX 3, at 1-2. The DI further stated that “[a]fter [he] spoke about the nature of the [Show Cause Order], Robert Zaro requested to take possession of the [Order] for his client.” Id. at 2.

Thereafter, on February 8, 2013, the Government submitted a Request for Final Agency Action to my Office. Therein, the Government maintains that more than thirty days have passed since the Order “was served on Respondent and no request for [a] hearing has been received.” Gov. Req. for Final Agency Action, at 1. The Government therefore seeks a final order revoking Respondent's registration. Id.

I reject the Government's request for two reasons. First, contrary to the Government's understanding, it has not properly served Respondent. Second, even had I concluded that service was proper, I would hold that the case is now moot.

As for whether service was proper, 21 U.S.C. 824(c) provides that “[b]efore taking action pursuant to this section . . . the Attorney General shall serve upon the . . . registrant an order to show cause why registration should not be . . . revoked[] or suspended.” (emphasis added). As the DI's affidavit makes clear, the Government did not serve the Show Cause Order “upon the . . . [R]egistrant,” id., but on an attorney who, according to the DI, is the Registrant's attorney.

However, “[n]umerous Federal Courts have held that `[t]he mere relationship between a defendant and his attorney does not, in itself, convey authority to accept service.'” Harbinson v. Commonwealth of Virginia, 2010 WL 3655980, at *9 (E.D. Va. Aug. 11, 2010) (quoting Davies v. Jobs & Adverts Online, Gmbh, 94 F.Supp.2d 719, 722 (E.D. Va. 2000)). See also United States v. Ziegler Bolt & Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997); Grandbouche v. Lovell, 913 F.2d 835, 837 (10th Cir. 1990); Ransom v. Brennan, 437 F.2d 5134, 518-19 (5th Cir. 1971). “`Rather, the party seeking to establish the agency relationship must show “that the attorney exercised authority beyond the attorney-client relationship, including the power to accept service.”'” Harbinson, 2010 WL 3655980, at * 9 (quoting Davies, 94 F.Supp.2d at 722 (quoting Ziegler, 111F.3d at 881)).

While an attorney's authority to act as an agent for the acceptance of process “may be implied from surrounding circumstances indicating the intent of” his client, In re Focus Media Inc., 387 F.3d 1077, 1082 (9th Cir. 2004) (other citation and internal quotations omitted), “an agent's authority to act cannot be established solely from the agent's actions.” Id. at 1084. “Rather, the authority must be established by an act of the principal.” Id. (citing FDIC v. Oaklawn Apartments, 959 F.2d 170, 175 (10th Cir. 1992)).

Here, the only evidence submitted by the Government as to whether Registrant's attorney was authorized to accept the Show Cause Order on his behalf was the DI's statement that the attorney requested to take possession of the Order. In short, the Government offered no evidence of an act of the Registrant establishing that he had granted authority to the attorney to accept process on his behalf. Focus Media, 387 F.3d at 1084. Accordingly, I hold that the Government has not properly served Registrant. I therefore reject its request for a final order.^[1]

Order

Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28 CFR 0.100(b) and 0.104, I order that the Order to Show Cause issued to David M. Lewis, D.M.D., be, and it hereby is, dismissed.

Dated: June 11, 2013.

Thomas M. Harrigan,

Deputy Administrator.

Footnotes

1.  Even had I found that the Government properly served Registrant, I would dismiss this matter as moot. As noted above, Respondent's registration was due to expire on March 31, 2013. Accordingly, I have taken official notice of the registration records of this Agency. See 5 U.S.C. 556(e). Those records show that Registrant's registration expired on March 31, 2013, that he did not file a renewal application (whether timely or not), and that his registration was retired on May 1, 2013.

It is well settled that “[i]f a registrant has not submitted a timely renewal application prior to the expiration date, then the registration expires and there is nothing to revoke.” Ronald J. Riegel, 63 FR 67132, 67133 (1998); see also William W. Nucklos, 73 FR 34330 (2008). So too, because Registrant did not file a renewal application, there is no application to act upon. See Nucklos, 73 FR at 34330. Accordingly, there is neither a registration, nor an application, to act upon, and had the Government properly served Registrant, I would nonetheless hold that the case is moot.