Fitzhugh v. Drug Enforcement Admin., 86-1012
| Citation | 813 F.2d 1248 |
| Decision Date | 24 March 1987 |
| Docket Number | No. 86-1012,86-1012 |
| Parties | John W. FITZHUGH, M.D., Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
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.
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was afforded a full and fair hearing before a certificate authorizing him to distribute certain controlled substances was revoked by the administrator of the Drug Enforcement Administration; and whether the administrator abused his discretion in revoking the certificate.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.
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 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 administrative proceeding was convened at the scheduled time. Present was the DEA attorney Ms. Charlotte A. Johnson, with her witness, prepared to proceed; Dr. Fitzhugh and Mr Gavin were absent. Judge Richey did not issue any order staying the administrative proceeding. He did, however, request of the government lawyer that he obtain a delay of the proceedings before Judge Young to permit briefing of the issue raised in the criminal case concerning the plea agreement. This request was not granted by Judge Young. At the insistence of the DEA attorney, the hearing proceeded. The only witness called was the officer who had investigated Dr. Fitzhugh and had given testimony in the criminal case. He testified before Judge Young about the events that led to Dr. Fitzhugh's prosecution and conviction. Exhibits were offered and received in evidence, all showing the charges against Dr. Fitzhugh, his plea agreement, the surrender of his schedule II certificate of registration, and the judgment of conviction against him. At about 12:00 noon, after the DEA witness had testified a little more than a half hour, and gave testimony that consisted of 14 pages in the report of proceedings, Dr. Fitzhugh and Mr. Gavin appeared at the hearing.
Mr. Gavin objected to evidence being heard in Dr. Fitzhugh's absence and he requested a postponement of the hearing until the following day at 10:00 a.m. so he could present documents to Judge Richey, motion papers asking for a stay of the administrative proceeding. Mr. Gavin's objections and his request for postponement were denied by Judge Young. The DEA witness continued his testimony, over Mr. Gavin's objections; and when he concluded, Mr. Gavin refused to cross-examine him, although urged to do so by Judge Young who summarized the witness' prior testimony.
Mr. Gavin then called Dr. Fitzhugh as the respondent's only witness. He testified and was cross-examined. This concluded the presentation of evidence; Judge Young then scheduled the time for the parties to suggest corrections of the record and submit their proposed findings of fact and conclusions of law. On September 3, 1985, after considering the written submissions of the parties, Judge Young issued his opinion and recommended ruling, findings of fact, conclusions of law, and decision. He found that Dr. Fitzhugh had been convicted of a controlled substances-related felony; that there was no indication that Dr. Fitzhugh realized his actions were wrong or regretted them; and that the evidence did not show Dr. Fitzhugh would refrain from such illegal actions in the future. Judge Young recommended to the administrator that he revoke Dr. Fitzhugh's DEA certificate of registration authorizing him to dispense controlled substances in schedules III through V. The administrator adopted Judge Young's recommendations. He examined the factual basis of Judge Young's findings and conclusions, including the issue concerning the plea agreement in the criminal case. He concluded that the plea agreement did not bar revocation of the registration; and that continued registration of Dr. Fitzhugh posed a serious risk to the safety of the public, its health and welfare. The administrator revoked Dr. Fitzhugh's certificate of registration, effective January 6, 1986.
Dr. Fitzhugh, still...
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