Norman Bridge Drug Co. v. Banner, s. 74--3877 and 75--1962

• Decision Date: 05 April 1976
• Docket Number: Nos. 74--3877 and 75--1962,s. 74--3877 and 75--1962
• Citation: 529 F.2d 822
• Parties: NORMAN BRIDGE DRUG COMPANY, Plaintiff-Appellee, v. Michael BANNER, John R. Bartels, Jr., Administrator, Drug Enforcement Administration, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 822

529 F.2d 822

NORMAN BRIDGE DRUG COMPANY, Plaintiff-Appellee, v. Michael BANNER, John R. Bartels, Jr., Administrator, Drug

Enforcement Administration, et al., Defendants-Appellants.

Nos. 74--3877 and 75--1962.

United States Court of Appeals, Fifth Circuit.

April 5, 1976.

Rehearing Denied May 24, 1976.

Ira DeMent, U.S. Atty., Kenneth E. Vines, Asst. U.S. Atty., Montgomery, Ala., Allan P. MacKinnon, Atty., Crim.Div., Dept. of Justice, Washington, D.C., for defendants-appellants.

Richard A. Ball, Jr., Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before WISDOM, COLEMAN and GEE, Circuit Judges.

COLEMAN, Circuit Judge.

These consolidated appeals present two facets of the same controversy, both engendered by the unsuccessful efforts of the Drug Enforcement Administration, by administrative order and without a breath of prior notice, to suspend instanter the registration of a corporately owned drug store to dispense controlled drugs. The suspension was attempted on November 11, 1974, on the ground, inter alia, that the president of the corporation, himself a registered pharmacist and in active charge of the store, had pleaded guilty six months previously (May 3, 1974) to one count of a federal indictment charging him with unlawfully dispensing controlled substances, for which he was fined and served a brief time in prison. He was back in the store before November 11.

In this connection it is to be remembered that under 21 U.S.C. 824(d) such a suspension (simultaneously with the institution of proceedings to revoke) may be had only when the Attorney General finds 'that there is an imminent danger to the public health or safety' and that a 'suspension under this subsection shall continue in effect until the conclusion of such proceedings (to revoke), including judicial review thereof, unless sooner withdrawn by the Attorney General or dissolved by a court of competent jurisdiction'.

The plain language of this section means that one faced with becoming the victim of the harsh expedient of suspension without prior notice may resort to The second facet of the case is concerned with the seizure of controlled drugs on hand when the drug enforcement agents made their unheralded entry into the drugstore on November 11, 1974, announcing the suspension and proceeding in the presence of the customers and store employees to box up all controlled substances. More especially, the case is concerned with the fact that these agents, charged with the enforcement of the law, for an entire week steadfastly declined to obey a temporary restraining order of the United States District Court, in which they were directed to return the drugs. Indeed, the return was not made until after a panel of this Court, on November 18, had declined to dissolve or stay the temporary restraining order. We are thus confronted with the odd spectacle of persons charged with the enforcement of the law refusing, themselves, to obey a specific court order.

the appropriate district court in search of appropriate relief.

Number 74--3877 is an appeal from a preliminary injunction against the revocation and seizure. This phase of the case has been mooted by appropriate post-injunction administrative proceedings. Number 75--1962 is an appeal from a judgment holding the appellants in civil contempt of court for failing to obey the temporary restraining order, for which appellants were assessed a civil fine of $500.

The judgment in 74--3877 will be vacated for mootness.

The judgment in 75--1962 is affirmed.

Facts

On November 11, 1974, the Drug Enforcement Administration ordered the Norman Bridge Drug Company to show good cause within thirty days why its application to renew its license to dispense controlled substances should not be denied and why its present license should not be revoked. Additionally, the DEA simultaneously suspended Norman Bridge's license pending the outcome of the show cause proceedings.

To support its finding of imminent public danger, the DEA cited the following:

(1) That Norman Bridge Drug Company's president, Roy Vann, had been convicted on May 3, 1974, of unlawfully dispensing controlled substances;

(2) That Norman Bridge Drug Company had failed to take an initial inventory of all controlled substances in its possession on May 1, 1971, in violation of 21 CFR 1304.12;

(3) That Norman Bridge Drug Company had failed to take a biennial inventory on May 1, 1973, as required by 21 CFR 1304.13;

(4) That Norman Bridge Drug Company had failed to maintain records of receipts and records of prescriptions of controlled substances in a readily retrievable manner, in violation of 21 CFR 1304.04(d)(1);

(5) That Norman Bridge Drug Company had filled prescriptions which had been issued in a manner violative of 21 CFR 1306.05(a);

(6) That Norman Bridge Drug Company had failed to keep complete and accurate records of receipts of controlled substances in Schedules III, IV and V in that it did not record the date of receipt on its invoices, in violation of 21 CFR 1304.21(a);

(7) That Norman Bridge Drug Company had refilled prescriptions for controlled substances in Schedules III and IV more than five times, in violation of 21 CFR 1306.22;

(8) That Norman Bridge Drug Company had failed, as purchaser of controlled substances in Schedule II, to record on DEA Order Forms the amounts of controlled substances received and the dates of receipt thereof, in violation of 21 CFR 1305.09(e);

(9) That an accountability audit of the controlled substances stock and the records of transactions involving controlled substances at Norman Bridge Drug Company revealed large and excessive Upon serving notice of these Administration decisions, DEA agent Michael Bannon (incorrectly cited in the case style as 'Banner') proceeded with the seizure of Norman Bridge's controlled substance inventory.

overages and shortages which were not adequately explained to the Drug Enforcement Administration.

At about 12:30 p.m. that same day, November 11, 1974, Norman Bridge's attorneys informed Bannon they intended to seek a temporary restraining order requiring him to relinquish possession of the drugs. About 2:30 p.m. a copy of Norman Bridge's complaint was served on Bannon; also on the United States Attorney, who represented the DEA throughout. The complaint named as defendants agent Bannon (Banner), DEA Administrator John R. Bartels, the DEA, and unknown parties.

At 5:30 p.m., District Judge Varner telephoned the U.S. Attorney to inform him that the complaint had been filed, and that the Judge was inclined to issue the requested temporary restraining order on the next day. That evening, the U.S. Attorney and counsel for the drug company had a further discussion of the matter, but agent Bannon transported the drugs from Montgomery, Alabama, to Birmingham, in another federal judicial district.

On November 12, 1974, at 10:30 a.m., the District Judge issued the temporary restraining order, as he had indicated he would do. He ordered a halt to enforcement of the suspension, an end to the inventory seizure, and the return of drugs already seized.

Acting on the advice of the U.S. Attorney and of Robert Hollinshead, Chief of Compliance of the Regional Drug Enforcement Administration, agent Bannon refused to return the drugs to Norman Bridge.

By its own terms, the temporary restraining order was to expire at 9:00 a.m., November 21, 1974, at which time a hearing was to be held to determine the propriety of a preliminary injunction.

On November 13 the DEA had not complied with the court order. Norman Bridge filed a motion to force the DEA to show cause why it should not be held in contempt of court. On the same day, acting in behalf of the defendants, the United States Attorney filed a motion in the District Court to stay or dissolve the temporary restraining order. The motion alleged that (1) the complaint failed to show irreparable injury in the absence of a temporary restraining order; (2) the complaint did not evince a substantial likelihood that the drug company would prevail on the merits; and (3) public health and safety would be jeopardized if the temporary restraining order were not dissolved.

The motion to dissolve was denied by the District Court. It was thereafter denied by a panel of this Court on November 18.

On November 18, 1974, the District Court ordered defendants to show cause why they should not be held in contempt. The contempt hearing was set for November 21, 1974, along with the hearing on the preliminary injunction.

In response to this show cause order, defendants stated that their motion for a stay had been denied by the Fifth Circuit and that they were returning the drugs to Norman Bridge. In view of this belated compliance, they asked that the contempt show cause order be dissolved.

Additionally, defendants said they had not complied immediately because they found irregularities in the issuance of the temporary restraining order. The complaint had failed to state a basis for a federal jurisdiction (but the basis appears on the face of the statute). Furthermore, the complaint had not complied with the requirements of Rule 65(b), Federal Rules of Civil Procedure, for issuance of temporary restraining orders without notice to the adverse party. (This objection was frivolous because the United States Attorney and the DEA had abundant actual notice). The complaint also had failed to enumerate facts showing irreparable injury would be incurred Nevertheless, on November 21, 1974, as provided in the temporary restraining order, a hearing was held to determine the propriety of both a preliminary injunction and of a contempt citation against the defendants. The District Court did not reach the contempt issue on that occasion; it was continued until February, 1975, but a preliminary injunction was issued.

in the absence of the temporary restraining order, nor had it...