48898 Federal Register / Vol. 76, No. 153 / Tuesday, August 9, 2011 / Notices 

1 In Respondent’s first motion for an extension of 

time, counselor Patrick R. McKamey stated that he 

represents Respondent in a separate criminal case; 

that he practices exclusively in criminal litigation; 

and that he filed a limited appearance in this case 

only so that Respondent might retain permanent 

counsel for these administrative proceedings. 

2Shawn B. McKamey, Esq., filed his notice of 

appearance on October 13, 2010. 

permanent counsel.1 I granted that 

motion on September 17, 2010, and 

granted Respondent until October 12, 

2010, to respond to the Government’s 

motion. 

On October 12, 2010, having secured 

permanent counsel,2 Respondent filed a 

second unopposed motion requesting 

additional time to respond. I granted 

that motion on October 13, 2010, and 

granted Respondent until October 15, 

2010, to respond to the Government’s 

Motion for Summary Judgment. 

On October 15, 2010, Respondent 

timely filed her response to the 

Government’s Motion for Summary 

Judgment. 

II. The Parties’ Contentions 

A. The Government 

In support of its motion for summary 

judgment, the Government asserts that 

on May 7, 2010, the State of Florida, 

Department of Health, issued an Order 

of Emergency Suspension of 

Respondent’s osteopathic medical 

license, and that Respondent 

consequently lacks authority to possess, 

dispense or otherwise handle controlled 

substances in Florida, the jurisdiction in 

which she maintains her DEA 

registration. The Government contends 

that such state authority is a necessary 

condition for maintaining a DEA COR 

and therefore asks that I summarily 

recommend to the Deputy 

Administrator that Respondent’s COR 

be revoked. In support of its motion, the 

Government attaches three documents: 

(1) The Emergency Order of Suspension 

referred to above; (2) a copy of 

Respondent’s request for a hearing, filed 

August 31, 2010, in which Respondent 

denies that the state suspension ‘‘should 

remain in full force and effect, thereby 

prohibiting Sheryl Lavender, D.O., from 

practicing medicine, and prescribing 

medications to patients’’ (Gov’t Mot. 

Sum. J. at 2 ¶(3) (citing Resp’t Req. Hg. 

at 1 ¶(B)(2))); and (3) a printout dated 

September 9, 2010, from a Web site 

maintained by the Florida Department 

of Health indicating that Respondent’s 

suspension remained in effect as of that 

date. 

B. Respondent 

Respondent opposes summary 

judgment and seeks the opportunity to 

‘‘discuss the merits of this matter.’’ 

(Resp’t Opp’n Gov’t Mot. Sum. J. 2 ¶5.) 

In sum and in substance, Respondent 

argues that while ‘‘it is technically true 

Respondent lacks state authorization to 

practice medicine at this time, this shall 

soon be remedied and having the DEA 

registration withdrawn or otherwise 

revoked would unnecessarily elongate 

Dr. Lavender’s return to medicine 

* * *.’’ (Id. at 1 ¶2.) Respondent also 

seeks to present evidence contesting two 

assertions: first, that she failed to 

comply with federal law in prescribing 

controlled substances; and second, that 

her continued registration would be a 

danger to the public. (Id. at 2 ¶4.) 

Finally, Respondent raises an estoppel 

and detrimental reliance argument, but 

concedes ‘‘this particular tribunal is not 

the appropriate forum in which to argue 

[those] grounds.’’ (Id. at ¶3.) 

III. Discussion 

At issue is whether Respondent may 

maintain her DEA COR given that 

Florida has suspended her state license 

to practice medicine. 

Under 21 U.S.C. 824(a)(3), a 

practitioner’s loss of state authority to 

engage in the practice of medicine and 

to handle controlled substances is 

grounds to revoke a practitioner’s 

registration. Accordingly, this agency 

has consistently held that a person may 

not hold a DEA registration if she is 

without appropriate authority under the 

laws of the state in which she does 

business. See Scott Sandarg, D.M.D., 74 

FR 17,528 (DEA 2009); David W. Wang, 

M.D., 72 FR 54,297 (DEA 2007); Sheran 

Arden Yeates, M.D., 71 FR 39,130 (DEA 

2006); Dominick A. Ricci, M.D., 58 FR 

51,104 (DEA 1993); Bobby Watts M.D., 

53 FR 11,919 (DEA 1988). 

Summary judgment in a DEA 

suspension case is warranted even if the 

period of suspension of a Respondent’s 

state medical license is temporary, or 

even if there is the potential for 

reinstatement of state authority because 

‘‘revocation is also appropriate when a 

state license had been suspended, but 

with the possibility of future 

reinstatement.’’ Stuart A. Bergman, 

M.D., 70 FR 33,193 (DEA 2005); Roger 

A. Rodriguez, M.D., 70 FR 33,206 (DEA 

2005). 

It is well-settled that when no 

question of fact is involved, or when the 

material facts are agreed upon, a 

plenary, adversarial administrative 

proceeding is not required, under the 

rationale that Congress does not intend 

administrative agencies to perform 

meaningless tasks. See Layfe Robert 

Anthony, M.D., 67 FR 35,582 (DEA 

2002); Michael G. Dolin, M.D., 65 FR 

5661 (DEA 2000); see also Philip E. Kirk, 

M.D., 48 FR 32,887 (DEA 1983), aff’d 

sub nom. Kirk v. Mullen, 749 F.2d 297 

(6th Cir. 1984); Puerto Rico Aqueduct & 

Sewer Auth. v. EPA, 35 F.3d 600, 605 

(1st Cir. 1994). 

In the instant case, the Government 

asserts, and Respondent concedes, that 

Respondent’s Florida medical license is 

presently suspended. While Respondent 

disagrees that the state suspension of 

her Florida medical license ‘‘should 

remain in full force and effect, thereby 

prohibiting [her] from practicing 

medicine and prescribing medication to 

patients,’’ (Resp’t Req. Hg. at 1 ¶ (B)(2) 

(emphasis supplied)), she does not deny 

that the state suspension presently 

removes the state authority upon which 

her DEA registration is premised. To the 

contrary, she admits ‘‘it is technically 

true Respondent lacks state 

authorization to practice medicine at 

this time * * * .’’ (Resp’t Opp’n Gov’t 

Mot. Sum. J. 1 ¶2.) 

I therefore find that there is no 

genuine dispute as to any material fact, 

and that substantial evidence shows that 

Respondent is presently without state 

authority to handle controlled 

substances in Florida. Because ‘‘DEA 

does not have statutory authority under 

the Controlled Substances Act to 

maintain a registration if the registrant 

is without state authority to handle 

controlled substances in the state in 

which he practices,’’ Sheran Arden 

Yeates, M.D., 71 FR 39,130, 39,131 (DEA 

2006), I do not reach Respondent’s other 

contentions. Under the circumstances 

discussed above, I conclude that further 

delay in ruling on the Government’s 

Motion for Summary Judgment is not 

warranted. 

Recommended Decision 

I grant the Government’s motion for 

summary judgment and recommend that 

Respondent’s DEA COR BL1667596 be 

revoked and any pending applications 

denied. 

Dated: October 28, 2010. 

Timothy D. Wing, 

Administrative Law Judge. 

[FR Doc. 2011–20068 Filed 8–8–11; 8:45 am] 

BILLING CODE 4410–09–P 

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. 


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Federal Register / Vol. 76, No. 153 / Tuesday, August 9, 2011 / Notices 48899 

1The 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. 

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). 

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 emailing 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). 


sroberts on DSK5SPTVN1PROD with NOTICES
48900 Federal Register / Vol. 76, No. 153 / Tuesday, August 9, 2011 / Notices 

2To 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. 

3Under Arkansas law, the ‘‘Board may revoke an 

existing license, impose penalties as listed in § 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. § 17–95– 

409(a)(1). The statute further provides that ‘‘[t]he 

words ‘unprofessional conduct’ as used in the 

Arkansas Medical Practices Act, § 17–95–201 et 

seq., § 17–95–301 et seq., and § 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. § 17–95–409(a)(2)(r). 

4For 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. 

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

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. § 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. 

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. § 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

Dated: July 27, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–20053 Filed 8–8–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Office of the Secretary 

Agency Information Collection 

Activities; Submission for OMB 

Review; Comment Request; Powered 

Industrial Trucks Standard 

ACTION: Notice. 


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