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Oak Hill Hometown Pharmacy v. Dhillon

United States District Court, S.D. West Virginia, Charleston Division

December 23, 2019

OAK HILL HOMETOWN PHARMACY Petitioner,
v.
UTTAM DHILLON, et al., Respondents.

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         On October 30, 2019, this court DISSOLVED the Order of Immediate Suspension of Registration (“ISO”) issued by the United States Drug Enforcement Administration (“DEA”) pursuant to 21 U.S.C. § 824(d)(1) of Oak Hill Hometown Pharmacy's (“the Pharmacy”) registration to dispense controlled substances. [ECF No. 17]. On November 27, 2019, the respondents, Uttam Dhillon and the DEA, filed a Motion to Alter or Amend that October 30, 2019 Order pursuant to Federal Rule of Civil Procedure 59(e) [ECF No. 20]. The petitioner, the Pharmacy, has responded [ECF No. 25] and the matter if ripe for adjudication. The court DENIES the respondents' Motion to Alter or Amend the Judgment.

         I. Introduction

         On October 21, 2019, the Pharmacy filed what was styled as a motion for Temporary Restraining Order (“TRO”) against the ISO. [ECF No. 4]. This court held a hearing on the motion on October 23, 2019 and October 24, 2019. [ECF Nos. 9, 10]. On October 30, 2019, this court issued an order dissolving the ISO, finding that the DEA had not demonstrated that the immediate suspension of the Pharmacy's registration was necessary to prevent an “imminent danger to public health and safety.” [ECF No. 17]. In that order, the court found, based on the enabling statute, that it was more appropriate to dissolve the ISO rather than grant temporary relief. The enabling statute states, “a suspension under this subsection shall continue in effect until the conclusion of such proceedings, including judicial review thereof, unless sooner withdrawn by the Attorney General or dissolved by a court of competent jurisdiction.” 21 U.S.C. § 824(d). The United States District Courts are the courts of “competent jurisdiction.” See Barry M. Schultz, M.D.; Decision and Order, 76 Fed. Reg. 78, 695 (Dec. 19, 2011) (finding that an ISO is not reviewable by an administrative law judge); Novelty Distributors, Inc. v. Leonhart, 562 F.Supp.2d 20, 27 (D.D.C. 2008); Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 824 (5th Cir. 1976). Therefore, the plain language of the statute vests the United States District Courts with the power to dissolve, meaning terminate, an ISO. The October 30, 2019 Order was thus a final judgment.

         On November 27, 2019, the respondents filed a Motion to Amend or Alter the October 30, 2019 Order. [ECF No. 20]. The respondents base this motion on a newly certified administrative record, which they contend constitutes evidence unavailable at the time of the dissolution hearing. The respondents ask this court to “reconsider the judgment entered on October 30, 2019, pursuant to Rule 59(e), deny OHHP's [the Pharmacy] Motion for “TRO, ” and schedule further proceedings regarding OHHP's Petition for Injunction to Dissolve Immediate Suspension Order.” Resp'ts Mem. in Supp. of Mot. to Alter or Am., 3 [ECF No. 23].

         II. Legal Standard

         Federal Rule of Civil Procedure 59(e) allows for a party to motion to alter or amend a final judgment. Granting a Rule 59 motion is an extraordinary remedy that should be used sparingly. Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). Although the Rule itself does not provide a standard under which a district court may grant such a motion, the Fourth Circuit recognizes three grounds for amending or altering a final judgment: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Id. at 403; Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.1993). “Rule 59(e) motions may not be used, however, to raise arguments which could have been raised prior to the issuance of the judgment, ” nor may they be used to relitigate the merits of the case. Pac. Ins. Co., 148 F.3d at 403; see also Wright et al., 11 Fed. Prac. & Proc. § 2810.1 Grounds for Amendment or Alteration of Judgment (3d ed. 2019).

         A party who brings a Rule 59(e) motion based on newly discovered evidence “must produce a legitimate justification for not presenting the evidence during the earlier proceeding.” Pac. Ins. Co., 148 F.3d at 403 (quoting Small v. Hunt, 98 F.3d 789, 798 (4th Cir.1996)). And must show that the new “evidence is such that is likely to produce a new outcome if the case were retried, or is such that would require the judgment to be amended.” Boryan v. United States, 884 F.2d 767, 771 (4th Cir. 1989).

         III. Discussion

         The respondents' Motion to Alter or Amend turns on two primary questions: (1) whether the newly certified administrative record constitutes new evidence not available at the time of the dissolution proceeding, and (2) if it does, is the administrative record likely to produce a new outcome or require the judgment be amended. See id. For the following reasons, I find that the administrative record does constitute new evidence but that it would not produce a different judgment. Thus, the respondents' motion is DENIED.

         a. New Evidence

         During the expediently scheduled dissolution proceeding it was unclear to me as to what was contained in the administrative record. At that hearing, it was argued that the administrative record definitely contained: (1) “the immediate suspension order itself;” (2) “the West Virginia Board of Pharmacy and prescription drug monitoring program (‘PDMP') data;” and (3) the DEA expert's report. TRO Hr'g Tr. 46:7-8, Oct. 23, 2019 [ECF No. 15]. The Government argued that the court's review should be restricted to those three items. Id. At the same time, the Government admitted that the administrative record before the DEA administrator was not necessarily limited to these three sources and could include other material. See TRO Hr'g Tr. 5:25; 6:1-5, Oct. 24, 2019 [ECF No. 16].

         It is apparent from the filing accompanying the Rule 59(e) motion the DEA considered more material than it previously represented to the court. For example, the Government strongly objected to-among other material-the inclusion in the record of the West Virginia Board of Pharmacy Letter; West Virginia Board of Pharmacy Inspector's Report, and the March 2017 West Virginia Board of Pharmacy Minutes. Relying on the Government's representation that there was no evidence that the DEA had the information from the West Virginia Board of Pharmacy when it issued the ISO, this court granted the respondents' objection and excluded that evidence. [ECF No. 17]. Yet the Declaration of Assistant Administrator of the DEA's Diversion Control Division, William McDermott, explicitly states that “prior to issuing the ISO, DEA was aware of material from the West Virginia Board of Pharmacy.” Decl. of William McDermott, 16 [ECF No. 30-1].

         This court will not discuss here all forty-two exhibits that now make up the certified administrative record. Suffice to say, I have carefully reviewed all the exhibits. Most repackage information the that I considered in the order to dissolve the ISO-such as maps outlining distances patients traveled to fill prescriptions and specific patient prescriptions records that were reflected in the PDMP data. I will, however, outline new evidence that contains information not previously presented to the court: an excel spreadsheet of all DATA waived practitioners in West Virginia (Admin. Record Ex. 27); four published DEA administrative decisions and orders (Admin. Record Ex. 33-36); a list of top controlled substances filled by the Pharmacy from 2015 to 2018 (Admin. Record Ex. 39); the West Virginia DHHR, Office of Policy Services, Policy for the Coverage of Suboxone (Admin. Record Ex. 40); and a January 30, 2018 letter from the West Virginia DHHR re: Opioid Response Plan for the State of West Virginia (Admin. Record Ex. 41). Although not part of the official administrative record, the respondents also include the Declaration of the Assistant Administrator of DEA's Diversion Control Division, William T. McDermott, as ...


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