[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Notices]
[Pages 48898-48900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20053]


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 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.

    Dated: July 27, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-20053 Filed 8-8-11; 8:45 am]
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