Jennifer L. St. Croix, M.D.; Order Denying Motion To Stay
| Published date | 08 June 2021 |
| Citation | 86 FR 30494 |
| Record Number | 2021-11982 |
| Section | Notices |
| Court | Drug Enforcement Administration |
30494
Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices
Washington, DC 20530, 202–307–6607,
jill.ptacek@usdoj.gov.
[FR Doc. 2021–11916 Filed 6–7–21; 8:45 am]
BILLING CODE 4410–11–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 17–31]
Jennifer L. St. Croix, M.D.; Order
Denying Motion To Stay
I. Introduction
On April 12, 2021, I issued a Decision
and Order revoking, effective May 12,
2021, Certificate of Registration No.
FS2669868 issued to Jennifer L. St.
Croix, M.D. (hereinafter, Petitioner) at a
registered address in Tennessee.
Jennifer L. St. Croix, M.D., 86 FR 19010
(April 12, 2021) (hereinafter, April 12,
2021 Decision/Order). On May 6, 2021,
Petitioner’s Counsel filed by email with
the Drug Enforcement Administration
Office of the Administrative Law Judges
(hereinafter, OALJ) a Motion to Stay
Enforcement Pending Appeal
(hereinafter, Motion to Stay) and served
by email the Drug Enforcement
Administration Office of Chief Counsel
(hereinafter, DEA or Government). The
OALJ forwarded the Motion to Stay to
my office. On May 7, 2021, I ordered the
Government to respond to Petitioner’s
Motion to Stay no later than 5:00 p.m.
on Monday, May 10, 2021. The
Government filed a timely response
(hereinafter, Govt Opposition), arguing
that the Motion to Stay should be
denied.
Later in the day of May 7, 2021, the
United States Department of Justice
alerted my office that Petitioner had
filed a pro se petition with the District
of Columbia Circuit Court of Appeals for
review of my April 12, 2021 Decision/
Order. Petition for Review of Agency
Decision, St. Croix v. United States Drug
Enforcement Administration, 21–1116
(dated May 5, 2021) (hereinafter, Review
Petition). Petitioner identified her
address on her Review Petition to be in
Las Vegas, Nevada. Review Petition, at
1. Having considered the merits of
Petitioner’s Motion to Stay and of the
Government’s Response in conjunction
with the record evidence, I deny
Petitioner’s Motion to Stay.
II. The April 12, 2021 Decision/Order
Petitioner requested a hearing on the
allegations that the Order to Show
Cause (hereinafter, OSC) made against
her. 86 FR at 19011. She attended the
hearing with her attorney. Id. at 19018.
After the Government rested,
Petitioner’s counsel made a motion for
summary disposition. Id. at 19017–18.
After the Chief Administrative Law
Judge (hereinafter, ALJ) heard from both
the Petitioner’s and the Government’s
counsels on the motion, he ruled on the
motion from the bench, denying it in
part and reserving it in part. Id.
Petitioner then advised the Chief ALJ
that she chose not to present a case. Id.
at 19018. Following discussion about
that decision, Petitioner sought and
obtained from the Chief ALJ time to
consult with her attorney. Id. After the
opportunity to consult, Petitioner re-
stated her decision not to put on a case.
Id. Accordingly, Petitioner knowingly
declined the opportunity to offer
documentary evidence and oral
testimony for the record.
In my April 12, 2021 Decision/Order,
I found that Petitioner ‘‘had committed
such acts as would render . . . [her]
registration inconsistent with the public
interest.’’ 21 U.S.C. 824(a)(4). The acts
alleged in the OSC for which I found the
Government had submitted substantial
evidentiary support for the record and
had proven were legal violations were
(1) that Petitioner issued controlled
substance prescriptions for no legitimate
purpose and outside the usual course of
professional practice, (2) that Petitioner
failed to maintain medical records
pertaining to her prescribing of
controlled substances, (3) that Petitioner
provided misleading information to
investigating DEA agents, (4) that
Petitioner failed to provide fully-
compliant controlled substance
prescription drug logs to DEA for
periods during which she issued
controlled substance prescriptions, (5)
that Petitioner stored controlled
substances at an unregistered location,
and (6) that Petitioner failed to provide
effective controls or procedures to guard
against the theft or diversion of
controlled substances. 86 FR at 19019–
21, 19023–25. I did not find substantial
evidence and/or a legal basis to support
the OSC’s allegations (1) that Petitioner
had continued to issue controlled
substance prescriptions to individuals
who are intimate or close acquaintances,
and to an individual with whom she
had a ‘‘romantic interaction,’’ (2) that
Petitioner violated 21 U.S.C.
843(a)(4)(A) by failing to comply with
the terms of her June 2011
Memorandum of Agreement
(hereinafter, MOA) with DEA, (3) that
Petitioner did not maintain records of
the controlled substances she
dispensed, and (4) that Petitioner did
not conduct an initial inventory of the
controlled substances she received. Id.
at 19019–20, 19022–25.
In adjudicating the OSC issued to
Petitioner, I found that Petitioner made
legal arguments that conflict with a core
principle of the Controlled Substances
Act (hereinafter, CSA)—the
establishment of a closed regulatory
system devised to ‘‘prevent the
diversion of drugs from legitimate to
illicit channels.’’ Gonzales v. Raich, 545
U.S. 1, 13–14, 27 (2005). I found that
Petitioner proposed a course of action
regarding the storage of controlled
substances that would be a danger to
public health and safety as it would
allow the storage of controlled
substances anywhere, as long as no
dispensing took place at the location. 86
FR at 19024. I declined to accept
Petitioner’s arguments, concluding that
to do so would conflict with my
authority under the CSA and would
establish a dangerous policy. Id.
In my adjudication of the OSC issued
to Petitioner, I also determined that
Petitioner urged me to accept positions
that minimize statutory and regulatory
inventory requirements. Id. I rejected
those positions as well.
III. Petitioner’s Motion To Stay
Petitioner argues that there are
multiple reasons why her Motion to
Stay satisfies the applicable legal
standard and why I should grant her
requested relief. First, she argues that
there is a substantial likelihood that her
review petition will prevail because she
has had ‘‘no further issues regarding her
prescribing and management of
controlled substances . . . over the past
seven years.’’ Motion to Stay, at 3.
Petitioner also argues that the reviewing
Circuit Court will find in her favor
because the penalty I assessed in my
April 12, 2021 Decision/Order ‘‘is
excessive, unjust, and disproportionate
to her actions’’ based on her ‘‘review of
other administrative actions against
physicians.’’ Id. at 4.
Second, Petitioner posits that she will
suffer irreparable injury if enforcement
of my April 12, 2021 Decision/Order is
not stayed. ‘‘It would be difficult,’’ the
Motion to Stay argues, ‘‘to overstate the
impact that the loss of her [DEA
registration] would have on . . . [her]
ability to earn a living.’’ Id. She states
that enforcement of my April 12, 2021
Decision/Order ‘‘will result in the
immediate loss of her current position
and essentially make her unemployable
as a physician.’’ Id. She also states that
she ‘‘will not be able to recover her lost
income that will result from her sudden
unemployment’’ and that a stay of
enforcement ‘‘would allow . . . [her] to
continue to support herself while she
explores other employment
opportunities.’’ Id. at 5.
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1
According to the Motion to Stay, Petitioner is
‘‘actively engaged in the care and treatment of
individuals in desperate need of medical care, and
. . . does not pose any immediate danger to the
community.’’ Motion to Stay, at 6.
2
Petitioner likely referenced ‘‘seven’’ years
because the record evidence includes a three-year
MOA between Petitioner and DEA dated June 2011.
DEA issued her the Tennessee-based registration,
whose revocation is effective tomorrow, because
she agreed to the MOA’s terms.
Third, Petitioner argues that no party
‘‘will be harmed if the enforcement of
the . . . [April 12, 2021 Decision/Order]
is stayed.’’ Id. In support of this
argument, Petitioner states that the
enforcement proceeding never ‘‘alleged
that any action or omission by . . . [her]
resulted in harm to any person,’’ and
that DEA ‘‘did not apparently see . . .
[her] as posing any kind of imminent
threat or danger to her . . . patients, as
it never sought any sort of injunction or
immediate suspension of her
certificate.’’ Id. She also argues that ‘‘no
parties have been harmed in the past
and there is no likelihood that any
parties would be harmed if a stay of
enforcement is granted.’’ Id. at 6.
Fourth, Petitioner states in her Motion
to Stay that the ‘‘public interest is in
allowing an experienced practitioner to
keep practicing in a medical specialty
that is urgently needed during a global
pandemic.’’
1
Id. at 6. Petitioner indicates
that she would like ‘‘to at least give
proper notice to her employer and allow
sufficient time to try and find a suitable
employment.’’ Id. Petitioner’s definition
of ‘‘proper notice’’ appears to be
connected to ‘‘at least until this action
has been finally concluded.’’ Id. at 7.
Petitioner also claims that, ‘‘as she is a
woman of Asian descent, . . . [she] is
particularly suited to provide
compassionate and understanding
treatment to patients who have been the
victim of ongoing racial/ethnic
prejudices, as she herself has
experienced these prejudices herself.’’
Id. at 6.
IV. The Government’s Opposition to the
Motion to Stay
As already discussed, the Government
opposes Petitioner’s Motion to Stay.
Supra section I. Regarding whether
Petitioner is likely to prevail on appeal,
the Government states that the Motion
to Stay ‘‘assigns no legal or factual
errors to the Acting Administrator’s
decision.’’ Govt Opposition, at 3. It
argues that Petitioner’s Motion to Stay
‘‘points (without analysis or
comparison) to a single court of appeals
decision finding that the Agency’s
decision to revoke a practitioner’s
registration was ‘arbitrary.’ ’’ Id. (citing
Morall v. Drug Enf’t Admin., 412 F.3d
165, 181 (D.C. Cir. 2005)). According to
the Government, ‘‘Morall offers . . .
[Petitioner] here no relief’’ because, ‘‘as
the D.C. Circuit has since reiterated,
‘under the Administrative Procedure
Act, the [Agency’s] choice of sanction is
entitled to substantial deference.’ ’’ Govt
Opposition, at 3 (citing Chien v. Drug
Enf’t Admin., 533 F.3d 828, 835 (D.C.
Cir. 2008) (quoting Morall, 412 F.3d at
177)). The Government’s Opposition
states that an ‘‘Agency’s sanction
decision is ‘arbitrary’ only if it is a
‘flagrant departure from DEA policy and
practice . . . and if the departure is not
only unexplained, but entirely
unrecognized in the [Agency’s]
decision.’ ’’ Govt Opposition, at 3–4
(citing Chien, 533 F.3d at 836 (quoting
Morall, 412 F.3d at 183) (emphasis
added by the Government)). The
Government concludes that Petitioner
has not shown that the April 12, 2021
Decision/Order was ‘‘arbitrary’’ and that
she ‘‘‘ has not established a serious
question going to the merits of [her]
appeal, much less a substantial
likelihood of success on the merits of
[her] petition for review to warrant the
issuance of a stay.’ ’’ Govt Opposition, at
3, 5 (quoting Medicine Shoppe-
Jonesborough, Motion to Stay Denial, 73
FR 3997, 3998 (2008)).
Regarding whether Petitioner’s
Motion to Stay demonstrates irreparable
harm, the Government argues that it
does not, because it ‘‘offers no evidence
in support’’ of its claims that revocation
‘‘would ‘result in the immediate loss of
her current position and essentially
make her unemployable as a
physician.’ ’’ Govt Opposition, at 5
(citing Medicine Shoppe-Jonesborough,
73 FR at 3998). The Government
concludes that Petitioner’s allegations of
harm are ‘‘entirely speculative and, as
importantly, unsubstantiated.’’ Govt
Opposition, at 6.
V. The Applicable Legal Standard
The Supreme Court has addressed the
purpose of stays and the legal standard
for the evaluation of motions to stay. In
Scripps-Howard Radio, Inc. v. Fed.
Communications Comm’n, the Supreme
Court ruled that ‘‘it is reasonable that an
appellate court should be able to
prevent irreparable injury to the parties
or to the public resulting from the
premature enforcement of a
determination which may later be found
to have been wrong . . . [and it] has
always been held, therefore, that, as part
of its traditional equipment for the
administration of justice, a federal court
can stay the enforcement of a judgment
pending the outcome of an appeal.’’ 316
U.S. 4, 9–10 (1942).
In 2009, the Supreme Court provided
the legal standard applicable to
Petitioner’s Motion to Stay. Nken v.
Holder, 556 U.S. 418 (2009). According
to Nken, four factors guide a court’s
exercise of discretion to stay
enforcement of an order pending
review, and the party requesting the stay
‘‘bears the burden of showing that the
circumstances justify an exercise of that
discretion.’’ 556 U.S. at 433–34. The
four factors are ‘‘(1) whether the stay
applicant has made a strong showing
that he is likely to succeed on the
merits; (2) whether the applicant will be
irreparably injured absent a stay; (3)
whether issuance of the stay will
substantially injure the other parties
interested in the proceeding; and (4)
where the public interest lies.’’ Id. at
434. According to the Court, the ‘‘first
two factors of the traditional standard
are the most critical.’’ Id. If the
applicant satisfies the first two factors,
‘‘the traditional stay inquiry calls for
assessing the harm to the opposing party
and weighing the public interest.’’ Id. at
435. When the Government is the
opposing party, these two factors merge.
Id.
VI. Application of the Legal Standard to
Petitioner’s Motion to Stay
Having analyzed the Motion to Stay,
the Government’s Opposition, and the
entire record in this matter, I find that
Petitioner has not met her burden of
showing that the circumstances justify
an exercise of my discretion to stay,
pending appellate review, enforcement
of the sanction I ordered on April 12,
2021. Id. at 433–34.
Regarding whether there is a
substantial likelihood that Petitioner
will prevail on the merits, even if
Petitioner had substantiated her
argument, which she did not, that she
has had ‘‘no further issues regarding her
prescribing and management of
controlled substances’’ for the last seven
years, her argument is irrelevant to my
adjudication of the OSC and to the
Circuit Court’s review of my Decision/
Order.
2
The OSC at issue, dated April
12, 2017, and the adjudication of that
OSC concern Petitioner’s unlawful and
allegedly unlawful acts during a
specified period before April 12, 2017.
As such, Petitioner’s argument that she
has had ‘‘no further issues regarding her
prescribing and management of
controlled substances’’ since the date of
the OSC is of no relevance.
For the portion of the alleged seven-
year period that is before the date of the
OSC, I note that neither this Agency nor
any other federal law enforcement
agency is required to bring all possible
charges against any subject at one time.
See, e.g., Heckler v. Chaney, 470 U.S.
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821, 831 (1985) (‘‘This Court has
recognized on several occasions over
many years that an agency’s decision
not to prosecute or enforce, whether
through civil or criminal process, is a
decision generally committed to an
agency’s absolute discretion.’’). Instead,
agencies exercise their investigative and
prosecutorial discretion based on
matters such as enforcement priorities
and the availability of resources. See,
e.g., id. at 831–32.
Further, Petitioner has had, and
continues to have, the option of
submitting an application for a new
DEA registration. The Agency’s
decisions make clear that an applicant’s
past actions that violate the law need
not result in her being denied a DEA
registration indefinitely. See, e.g.,
Michele L. Martinho, M.D., 86 FR 24012
(2021).
Regarding her allegation that the
sanction I assessed in my April 12, 2021
Decision/Order is ‘‘excessive, unjust,
and disproportionate to her actions,’’
Petitioner neither submitted evidence
for the record during the hearing on the
OSC nor now submits evidence that
substantiates it. My April 21, 2021
Decision/Order, however, explains how
violations that I found Petitioner had
committed go to the heart of the CSA
and its implementing regulations, and
rejects her arguments that minimize
applicable legal requirements. See, e.g.,
86 FR at 19024. Accordingly, I do not
find persuasive Petitioner’s arguments
that there is a substantial likelihood that
she will prevail on the merits upon
appellate review, and I reject them.
Petitioner’s irreparable injury
arguments are predictions that she does
not tether to existing or new record
evidence. For example, as already
discussed, Petitioner provides an
address for herself in Las Vegas, Nevada
in the pro se review petition she
recently filed in the District of Columbia
Circuit. Supra n.1. There is no record
evidence, and she submitted no new
evidence along with this or her Review
Petition filing, that Petitioner is
registered in Nevada or even that she is
licensed to practice medicine in
Nevada. Petitioner’s irreparable injury
arguments related to any future loss by
her of earned income, therefore, are
without a sufficient basis in record
evidence. Accordingly, I reject them.
Further, Petitioner’s loss of earned
income claims are of a generic nature
that any practitioner whose registration
had been revoked or suspended could
make. Even if Petitioner had submitted
record evidence substantiating these
predictions, the CSA does not direct me
to consider her loss of earned income or
potential loss of earned income.
Accordingly, I do not accept Petitioner’s
irreparable injury arguments.
Nken makes clear that the ‘‘first two
factors of the traditional standard are
the most critical.’’ 556 U.S. at 434. It
also explains that, if the applicant
satisfies the first two factors, ‘‘the
traditional stay inquiry calls for
assessing the harm to the opposing party
and weighing the public interest.’’ Id. at
435. Here, Petitioner has not satisfied
either of the first two factors. Supreme
Court case law makes clear that I need
not address Petitioner’s arguments
regarding the third and fourth stay
factors. Id. For the sake of having a
complete record, however, I shall do so.
Assuming, arguendo, the accuracy of
Petitioner’s arguments that she has
never been accused of harming a person,
and of her suggestion that the third
factor addresses such harm, I find that
the legal violations I sustained in my
April 12, 2021 Decision/Order do not
include harm to a person among their
elements. Accordingly, I find
Petitioner’s third factor arguments to be
irrelevant, and I reject them.
Fourth, even if the record evidence
substantiates Petitioner’s public interest
claims, which it does not, the Agency
has rejected community impact
arguments. See, e.g., Perry County Food
& Drug, 80 FR 70084 (2015).
Accordingly, I reject Petitioner’s public
interest arguments.
Having determined that Petitioner has
not met her burden of showing that the
circumstances justify an exercise of my
discretion to stay enforcement of the
sanction I ordered on April 12, 2021,
pending appellate review, I deny her
Motion to Stay.
It is so ordered.
Dated: May 11, 2021.
D. Christopher Evans,
Acting Administrator.
[FR Doc. 2021–11982 Filed 6–7–21; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
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Agency Information Collection
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