Fitzhugh v. Drug Enforcement Admin., No. 86-1012

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtLEIGHTON
Citation813 F.2d 1248
PartiesJohn W. FITZHUGH, M.D., Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent.
Docket NumberNo. 86-1012
Decision Date24 March 1987

Page 1248

813 F.2d 1248
259 U.S.App.D.C. 127
John W. FITZHUGH, M.D., Petitioner,
v.
DRUG ENFORCEMENT ADMINISTRATION, Respondent.
No. 86-1012.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 8, 1986.
Decided March 24, 1987.

Page 1249

Petition for Review of an Order of the Drug Enforcement administration.

P. David Gavin, Rockville, Md., for petitioner.

Catherine M. Volz, Atty., Dept. of Justice, of the Bar of the Supreme Court of Iowa, pro hac vice by special leave of Court, with whom Stephen E. Stone, Associate Chief Counsel, Drug Enforcement Administration, Washington, D.C., was on the brief for respondent. Michael Zelden, Atty., Drug Enforcement Administration, Washington, D.C., also entered an appearance, for respondent.

Before WALD, Chief Judge; MIKVA, Circuit Judge, and LEIGHTON, * Senior District Judge.

Opinion for the Court filed by Senior District Judge LEIGHTON.

LEIGHTON, Senior District Judge:

This petition to review an administrative order requires us to decide whether petitioner was afforded a full and fair hearing before a certificate authorizing him to distribute certain controlled substances was revoked by the administrator of the Drug Enforcement Administration; and whether the administrator abused his discretion in revoking the certificate. Petitioner, to use his words, contends that "[t]he result [of the administrative proceeding] adds a new definition to the term 'railroaded'." We conclude, however, that the result did not add such a new definition; that petitioner received a full and fair hearing in the administrative proceedings; and that the administrator did not abuse his discretion in revoking petitioner's certificate of registration when uncontested facts showed he had been convicted of a felony in violation of the Federal Controlled Substances Act. Therefore, we affirm the order of the administrator.

I

Petitioner John W. Fitzhugh, is a medical practitioner licensed in the District of Columbia. He received medical degrees from Howard University in 1954 and 1958, respectively. On October 4, 1983, after being charged in an information filed in the United States District Court for the District of Columbia, Dr. Fitzhugh pleaded guilty to one count of illegal distribution of a schedule II (narcotic) controlled substance. This crime involved his misuse of authority as a physician to prescribe Dilaudid, a controlled substance. His written plea agreement, among other provisions, required him to

Page 1250

voluntarily surrender his DEA registration to dispense schedule II controlled substances. No reference was made in the agreement to Dr. Fitzhugh's authority to dispense other controlled substances; nor, in their negotiations, did the parties discuss his DEA registration to dispense other drugs. The registration as to schedule II controlled substances was surrendered and Dr. Fitzhugh was sentenced.

This fact came to the attention of the DEA; and pursuant to the authority delegated to the administrator, the agency under the provisions of 21 U.S.C. Sec. 823 et seq., ordered him to show cause why his DEA certificate of registration under which he had the authority to distribute controlled substances in schedules III, IV, and V should not be revoked. The basis for the order was Dr. Fitzhugh's conviction of a controlled substance-related felony. He responded with a letter requesting a hearing. On September 4, 1984, Administrative Law Judge Francis L. Young, to whom the cause had been assigned, issued an order for prehearing statements.

The parties complied. In October 1984, they listed witnesses, the substance of proposed testimony, and the documentary evidence to be introduced. Dr. Fitzhugh, by his lawyer, P. David Gavin, Esq., raised the issue whether the plea agreement into which he had entered with the government in the criminal case barred revocation of his DEA certificate of registration to distribute controlled substances in schedules III through V. Apparently, Dr. Fitzhugh and his lawyer were arguing that because his plea agreement only required him to surrender his certificate as to schedule II substances, the government was implicitly limited in its power to administratively revoke his registration as to other schedules. Judge Young set the issue on briefing, giving the parties time to file briefs stating their respective positions. The ruling date was extended and the scheduled hearing of the cause was continued at the parties' request.

Under the briefing schedule, Dr. Fitzhugh was given until February 18, 1985 to support his argument with a memorandum; he did not do so. As a result, Judge Young ruled that Dr. Fitzhugh and his lawyer had abandoned their contention that the plea agreement in the criminal case barred revocation of the DEA registration which authorized Dr. Fitzhugh to distribute controlled substances in schedules III, IV, and V. He also granted a DEA request for a continuance and set the cause for hearing on May 7, 1985. On April 1, 1985, the hearing clerk notified counsel for the parties of the location of the May 7, 1985 hearing. The notice was published in the Federal Register on April 19, 1985.

On April 26, Dr. Fitzhugh, by his lawyer, Mr. Gavin, made a motion in the criminal case asking U.S. District Judge Charles R. Richey to enforce the plea agreement. It was their contention that because surrender of Dr. Fitzhugh's DEA registration was limited to schedule II substances, the government was barred from seeking, through the DEA, any revocation of other certificates registered to him. This was the same contention which Judge Young ruled was abandoned by Dr. Fitzhugh and his lawyer when, before him, they did not support their position with a memorandum, although they had been given the opportunity to do so. The government, on May 6, 1985, represented by the Assistant United States Attorney in the criminal case, answered the motion stating its grounds in opposition. Judge Richey called a status conference on the matter at 9:30 a.m., May 7, the same morning that Judge Young had set the administrative proceedings for hearing at 10:00 a.m. Mr. Gavin called the DEA attorney in the administrative proceeding and told her that instead of appearing before Judge Young, he was going before Judge Richey to seek an order that would either postpone or delay the administrative case. Mr. Gavin also called Judge Young; but from these conversations, Mr. Gavin knew that the administrative proceeding was going to be called for hearing at 10:00 a.m., as scheduled.

This is what occurred. The...

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7 practice notes
  • Stark v. Washington Star Co., No. 86-1615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 20 Noviembre 1987
    ...showing of abuse; factors include length of delay, prejudice, and importance of evidence); Fitzhugh v. Drug Enforcement Administration, 813 F.2d 1248, 1252-53 (D.C.Cir.1987) (same); see also 20 C.F.R. Sec. 702.341 (1987) (providing that "depositions or interrogatories must be completed with......
  • Pearson v. United States Dep't Of Agriculture, No. 09-4114
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 17 Febrero 2011
    ...establish prejudice. See, e.g., United States v. Lewis, 605 F.3d 395, 401 (6th Cir.Page 9 2010); Fitzhugh v. Drug Enforcement Admin., 813 F.2d 1248, 1252 (D.C. Cir. 1987); NLRB v. Hackenberger, 531 F.2d 364, 365 (6th Cir. 1976). In the instant case, Petitioner's challenge to the Secretary's......
  • Pearce v. U.S. Dept. of Justice, Drug Enforcement Admin., No. 87-4117
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 5 Diciembre 1988
    ...the Attorney General (through the DEA Administrator) to revoke or suspend a DEA registration. See Fitzhugh v. Drug Enforcement Admin., 813 F.2d 1248, 1251 Courts equate a nolo contendere plea with an actual conviction in the context of Sec. 824 and other administrative proceedings. They are......
  • Fourth Street Pharmacy v. U.S. Dept. of Justice, Drug Enforcement Admin., No. 87-2226
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 14 Enero 1988
    ...Street's registration on account of the state felony conviction alone. See 21 U.S.C. Sec. 824(a)(2); Fitzhugh v. Drug Enforcement Admin., 813 F.2d 1248, 1252, 1253 (D.C. Cir.1987). Further, in light of the findings of other wrongful acts committed by Fourth Street, the facts in this case be......
  • Request a trial to view additional results
7 cases
  • Stark v. Washington Star Co., No. 86-1615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 20 Noviembre 1987
    ...showing of abuse; factors include length of delay, prejudice, and importance of evidence); Fitzhugh v. Drug Enforcement Administration, 813 F.2d 1248, 1252-53 (D.C.Cir.1987) (same); see also 20 C.F.R. Sec. 702.341 (1987) (providing that "depositions or interrogatories must be completed......
  • Pearce v. U.S. Dept. of Justice, Drug Enforcement Admin., No. 87-4117
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 5 Diciembre 1988
    ...the Attorney General (through the DEA Administrator) to revoke or suspend a DEA registration. See Fitzhugh v. Drug Enforcement Admin., 813 F.2d 1248, 1251 Courts equate a nolo contendere plea with an actual conviction in the context of Sec. 824 and other administrative proceedings. They are......
  • Pearson v. United States Dep't Of Agriculture, No. 09-4114
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 17 Febrero 2011
    ...establish prejudice. See, e.g., United States v. Lewis, 605 F.3d 395, 401 (6th Cir.Page 9 2010); Fitzhugh v. Drug Enforcement Admin., 813 F.2d 1248, 1252 (D.C. Cir. 1987); NLRB v. Hackenberger, 531 F.2d 364, 365 (6th Cir. 1976). In the instant case, Petitioner's challenge to the Secretary's......
  • Fourth Street Pharmacy v. U.S. Dept. of Justice, Drug Enforcement Admin., No. 87-2226
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 14 Enero 1988
    ...Street's registration on account of the state felony conviction alone. See 21 U.S.C. Sec. 824(a)(2); Fitzhugh v. Drug Enforcement Admin., 813 F.2d 1248, 1252, 1253 (D.C. Cir.1987). Further, in light of the findings of other wrongful acts committed by Fourth Street, the facts in this case be......
  • Request a trial to view additional results

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