[Federal Register Volume 78, Number 117 (Tuesday, June 18, 2013)]
[Notices]
[Page 36591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14453]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


David M. Lewis, D.M.D., Dismissal of Proceeding

    On December 5, 2012, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to David M. Lewis, D.M.D. (Registrant), of 
Sacramento, California. The Show Cause Order proposed the revocation of 
Registrant's DEA Certificate of Registration BL7253115, and the denial 
of any pending application to renew or modify his registration, on the 
ground that he lacks authority to handle controlled substances in 
California, the State in which he is registered with DEA. Show Cause 
Order at 1 (citing 21 U.S.C. 823(f) & 824(a)(3)). Show Cause Order at 
1. The Order also alleged that Registrant's registration ``will expire 
by its terms on March 31, 2013.'' Id.
    Specifically, the Show Cause Order alleged that on February 24, 
2012, the Dental Board of California suspended Registrant's dental 
license, based ``on multiple findings'' that he performed ``unnecessary 
dental work'' and filed ``fraudulent insurance claims.'' Id. The Order 
further alleged that as a result of the suspension, Registrant is 
without authority to handle controlled substances in California, the 
State in which he is registered, and therefore, his registration is 
subject to revocation. Id. at 1-2 (citations omitted). 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).
    According to the declaration of an Agency Diversion Investigator 
(DI), on December 18, 2012, he ``traveled to the office of Robert Zaro, 
Esq., who is the attorney for [Registrant].'' GX 3, at 1-2. The DI 
further stated that ``[a]fter [he] spoke about the nature of the [Show 
Cause Order], Robert Zaro requested to take possession of the [Order] 
for his client.'' Id. at 2.
    Thereafter, on February 8, 2013, the Government submitted a Request 
for Final Agency Action to my Office. Therein, the Government maintains 
that more than thirty days have passed since the Order ``was served on 
Respondent and no request for [a] hearing has been received.'' Gov. 
Req. for Final Agency Action, at 1. The Government therefore seeks a 
final order revoking Respondent's registration. Id.
    I reject the Government's request for two reasons. First, contrary 
to the Government's understanding, it has not properly served 
Respondent. Second, even had I concluded that service was proper, I 
would hold that the case is now moot.
    As for whether service was proper, 21 U.S.C. 824(c) provides that 
``[b]efore taking action pursuant to this section . . . the Attorney 
General shall serve upon the . . . registrant an order to show cause 
why registration should not be . . . revoked[] or suspended.'' 
(emphasis added). As the DI's affidavit makes clear, the Government did 
not serve the Show Cause Order ``upon the . . . [R]egistrant,'' id., 
but on an attorney who, according to the DI, is the Registrant's 
attorney.
    However, ``[n]umerous Federal Courts have held that `[t]he mere 
relationship between a defendant and his attorney does not, in itself, 
convey authority to accept service.''' Harbinson v. Commonwealth of 
Virginia, 2010 WL 3655980, at *9 (E.D. Va. Aug. 11, 2010) (quoting 
Davies v. Jobs & Adverts Online, Gmbh, 94 F.Supp.2d 719, 722 (E.D. Va. 
2000)). See also United States v. Ziegler Bolt & Parts Co., 111 F.3d 
878, 881 (Fed. Cir. 1997); Grandbouche v. Lovell, 913 F.2d 835, 837 
(10th Cir. 1990); Ransom v. Brennan, 437 F.2d 5134, 518-19 (5th Cir. 
1971). ```Rather, the party seeking to establish the agency 
relationship must show ``that the attorney exercised authority beyond 
the attorney-client relationship, including the power to accept 
service.''''' Harbinson, 2010 WL 3655980, at * 9 (quoting Davies, 94 
F.Supp.2d at 722 (quoting Ziegler, 111F.3d at 881)).
    While an attorney's authority to act as an agent for the acceptance 
of process ``may be implied from surrounding circumstances indicating 
the intent of'' his client, In re Focus Media Inc., 387 F.3d 1077, 1082 
(9th Cir. 2004) (other citation and internal quotations omitted), ``an 
agent's authority to act cannot be established solely from the agent's 
actions.'' Id. at 1084. ``Rather, the authority must be established by 
an act of the principal.'' Id. (citing FDIC v. Oaklawn Apartments, 959 
F.2d 170, 175 (10th Cir. 1992)).
    Here, the only evidence submitted by the Government as to whether 
Registrant's attorney was authorized to accept the Show Cause Order on 
his behalf was the DI's statement that the attorney requested to take 
possession of the Order. In short, the Government offered no evidence 
of an act of the Registrant establishing that he had granted authority 
to the attorney to accept process on his behalf. Focus Media, 387 F.3d 
at 1084. Accordingly, I hold that the Government has not properly 
served Registrant. I therefore reject its request for a final order.\1\
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    \1\ Even had I found that the Government properly served 
Registrant, I would dismiss this matter as moot. As noted above, 
Respondent's registration was due to expire on March 31, 2013. 
Accordingly, I have taken official notice of the registration 
records of this Agency. See 5 U.S.C. 556(e). Those records show that 
Registrant's registration expired on March 31, 2013, that he did not 
file a renewal application (whether timely or not), and that his 
registration was retired on May 1, 2013.
     It is well settled that ``[i]f a registrant has not submitted a 
timely renewal application prior to the expiration date, then the 
registration expires and there is nothing to revoke.'' Ronald J. 
Riegel, 63 FR 67132, 67133 (1998); see also William W. Nucklos, 73 
FR 34330 (2008). So too, because Registrant did not file a renewal 
application, there is no application to act upon. See Nucklos, 73 FR 
at 34330. Accordingly, there is neither a registration, nor an 
application, to act upon, and had the Government properly served 
Registrant, I would nonetheless hold that the case is moot.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b) and 0.104, I order that the Order to Show Cause 
issued to David M. Lewis, D.M.D., be, and it hereby is, dismissed.

    Dated: June 11, 2013.
Thomas M. Harrigan,
Deputy Administrator.
[FR Doc. 2013-14453 Filed 6-17-13; 8:45 am]
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