Miami-Luken, Inc. v. Drug Enforcement Agency

Filing 15

MEMORANDUM ORDER granting in part and denying in part 1 Plaintiff's Motion Enforce Chief Administrative Law Judge John J. Mulrooney, II's Order for DEA to Produce Documents, Pursuant to Subpoena Duces-Tecum Issued April 18, 2016. IT IS ORDERED that the DEA abide by the subpoena as limited by this Order. Such response shall be produced within 21 days of this Order. Signed by Magistrate Judge Stephanie K. Bowman on 7/15/2016. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MIAMI-LUKEN, INC.,

Case No. 1:16-mc-012

Plaintiff,

Dlott, J.
Bowman, M.J.

v.
UNITED STATES
DEPARTMENT OF JUSTICE,
DRUG ENFORCEMENT ADMINISTRATION
Defendant.
MEMORANDUM ORDER

Pursuant to custom and practice, this miscellaneous action has been referred to
the undersigned magistrate judge. The matter was initiated by the Plaintiff in order to
seek this Court’s assistance in compelling the Defendant to comply with an
administrative subpoena.

Although the type of administrative subpoena involved is

relatively unusual, this Court grants in part the Plaintiff’s motion to enforce the subpoena
tor the reasons that follow. 1
I.

Background

Plaintiff, Miami-Luken, Inc., incorporated in Dayton, Ohio, is a pharmaceutical
wholesaler that has come under DEA scrutiny for allegedly “facilitat[ing] the diversion of
significant quantities of the highly addictive pain killers, oxycodone and hydrocodone.”
(Doc. 11, PageID 202.) The DEA’s investigation of Plaintiff has been ongoing since

1

The undersigned considers this miscellaneous matter to be non-dispositive, to the extent that it is
analogous to the enforcement of a civil subpoena issued by another court, or to the enforcement of an
investigatory subpoena such as those used by the IRS or other agencies. Therefore, the undersigned
has issued this ruling by Order rather than by Report and Recommendation. See, e.g., United States v.
Michgan Dep’t of Community Health, 2011 WL 2412602 (E.D. Mich. June 9, 2011) (an opinion delivered
by Magistrate Judge Brenneman granting a motion to enforce an administrative subpoena).

1

2008 or 2009. 2

Over the course of the investigation, approximately fourteen

investigatory records subpoenas issued by the DEA requested the production of
documents to one or more DEA investigators, primarily Diversion Investigator (“DI”)
Burkhart in the Cincinnati, Ohio office. (Doc. 1-1, PageID 6.)
On November 23, 2015, the DEA issued an Order to Show Cause (“OSC”)
against the Plaintiff to begin the process of revoking the Plaintiff’s registration to
distribute controlled substances under the Controlled Substances Act, as “inconsistent
with the public interest.” (Doc. 1-2, PageID 24.); see 21 U.S.C. § 824(a)(4). As part of
the administrative revocation process, an evidentiary hearing was set to take place on
May 10, 2016, before Chief Administrative Law Judge (“ALJ”) John J. Mulrooney. 3
On March 31, 2016, Miami-Luken filed a Request for Issuance of a Subpoena in
which Miami-Luken sought the production of a large number of records from the DEA
prior to the hearing. (Doc. 1-3.) Miami-Luken asserted that it required the records in
order to adequately defend itself at the hearing. (Id.)

The DEA objected to the

production of any records pursuant to the subpoena. In an April 12 omnibus order
denying Miami-Luken’s request, the ALJ found the subpoena “simply too broad,” with
portions amounting to an impermissible “fishing expedition.” (Doc. 1-4, PageID 75).
Nevertheless, the ALJ indicated a willingness to issue a more narrowly tailored

2

The DEA generally alleges that Miami-Luken illegally distributed hundreds of thousands, if not millions, of
dosage units of oxycodone and hydrocodone in the Appalachian region of Ohio, Kentucky, and West
Virginia, and that it will continue to do so until such time as its registration is revoked. (Doc. 11, PageID
209, citation omitted.)
3
Judge Mulrooney is the first author of Drug Diversion Administrative Revocation and Application
Hearings for Medical and Pharmacy Practitioners: A Primer for Navigating Murky, Drug-infested Waters,
78 Alb. L. Rev. 327 (2015). According to the biographical note in that article, he currently presides as the
Department of Justice, DEA Chief ALJ, but has had a long career in public service. That career includes
prior practice as an Assistant U.S. Attorney, a Department of Justice/INS trial attorney, an assistant
district attorney, a Navy judge advocate, and a judicial law clerk, as well as serving as a judge on the
Navy-Marine Corps Court of Criminal Appeals and as an administrative law judge at the Social Security
Administration. Id. at n. a1.

2

subpoena, and the denial was without prejudice to Miami-Luken to resubmit an
amended request by April 18, 2016. (Id., PageID 77, n. 24).
On April 18, 2016, Miami-Luken timely submitted a Supplemental Request for
Issuance of a Subpoena along with a revised draft subpoena, requesting the following:
(1) Records regarding personnel and employment information for all
Government witnesses that relate to: prior or pending disciplinary actions
relating to the employee’s investigation of Miami-Luken, Inc.; work history
and/or complaints against Government witnesses related to unfairly
targeting particular DEA registrants; all records relating to complaints,
investigations, and/or referrals to the Office of Professional Responsibility
regarding prior inconsistent statements made by the witness; evidence in
the form of opinion or reputation as to the witnesses’ character for
truthfulness; information to suggest that the witness is biased against
Miami-Luken and any other information contained in the witnesses’ Giglio
file maintained pursuant to USAM 9-5.001;
(2) All records, including investigative reports, regarding routine audits and/or
cyclic investigations conducted by the Government towards Respondent
from 2008 – present, along with Government comments, communications
(both oral and written), and all notifications of any kind directed at
Respondent, its agents, employees, and representatives in relation to
such reports, audits, and investigations.
(3) All records regarding briefings provided by DEA Headquarters and/or DEA
local office-personnel as part of the DEA’s Distributor Initiative; and
(4) All records, including investigative reports, from 2008-present,
documenting that Respondent violated the applicable controlled
substances laws and regulations, including but not limited to documents
related to suspicious orders and all records, including investigative
reports, to evidence that the Respondent’s conduct created the potential
for the diversion of controlled substances.
(Doc. 1-5, PageID 88.) Miami-Luken directed the subpoena to DI Burkhart, the same
DEA agent to whom Miami-Luken had been directed to deliver thousands of documents
over the years, in response to the DEA’s prior investigatory subpoenas. (Id., PageID 87.)
Two hours later on the same day, without awaiting any additional response from
the DEA, the ALJ granted Miami-Luken’s amended request. The ALJ directed the DEA
to comply with all but section one of the revised adjudicatory subpoena by May 2, 2016.
3

(Doc. 1-6, PageID 90.) On May 3, the DEA filed a motion for reconsideration or, in the
alternative, for leave to file an interlocutory appeal of the ALJ’s order to the DEA
Administrator. (Doc. 1-8.)

In part, the DEA argued that the ALJ did not have the

authority to compel the DEA to release investigative reports to a third party, and that to
comply with the subpoena would cause the DEA “irreparable harm.” (Id., PageID 108.)
On May 4, the ALJ denied the DEA’s motion, refusing either to reconsider the
issuance of the subpoena or to grant leave to the DEA to file an interlocutory appeal.
(Doc. 1-9.) Instead, the ALJ insisted that “the Government may seek to ‘contest’ the
subpoena, but that contest and its arguments in support are properly made only before
a ‘court of the United States.’” (Id., PageID 122.) The Office of Chief Counsel for the
DEA filed a “Government Notice” on the same day, which “respectfully decline[d] to
comply” with the ALJ’s order. (Doc. 1-10, PageID 125.)
In response to the DEA’s refusal to comply with the subpoena, Miami-Luken
requested a stay of the scheduled hearing. (Doc. 1-11). The DEA filed a response in
opposition to the stay on May 5, but the ALJ granted the requested stay the same
afternoon. The ALJ indicated that the stay would remain in place until May 31, 2016, or
until a court had resolved the issue regarding the disputed subpoena, “whichever comes
first.” (Doc. 1-12, PageID 140.) To date, that stay has twice been extended. Currently,
the underlying administrative proceedings have been stayed by ALJ Mulrooney until
July 28, 2016, on which date a status conference has been scheduled. (Doc. 14-1,
PageID 404.)
On May 18, 2016, Miami-Luken filed an “emergency motion” in this Court,
seeking an order to enforce the subpoena previously issued by the ALJ. On June 16,

4

the DEA filed a response, (Doc. 11), to which Plaintiff filed a reply on June 27. (Doc.
13).
II.

Threshold Issues

Two threshold issues first must be considered: 1) whether this Court has
jurisdiction and 2) whether the matter is ripe for judicial review.

For the reasons

explained below, this Court answers both questions in the affirmative.
A. District Court Jurisdiction to Enforce Administrative Subpoenas
The authority of an ALJ at administrative hearings held under the Controlled
Substances Act (“CSA”) is governed broadly by the Administrative Procedures Act
(“APA”). See 5 U.S.C. § 556(c); see also 21 U.S.C. § 875. Both parties discuss at
length whether this Court has jurisdiction over an administrative subpoena enforcement
action under the APA and/or the CSA.

The undersigned finds ample basis for

jurisdiction in this Court.
Pursuant to the APA, two types of agency actions are subject to court review: 1)
“[a]gency action made reviewable by statute” and 2) “final agency action for which there
is no other adequate remedy.” 5 U.S.C. § 704; Air Brake Systems, Inc. v. Mineta, 357
F.3d 632, 638 (6th Cir. 2004). Although both parties to this action focus their attention
on the second provision, arguing vigorously about whether the DEA’s refusal to comply
with the ALJ’s subpoena constitutes “final agency action,” the undersigned concludes
that the administrative subpoena at issue is fully reviewable as an “agency action made
reviewable by statute.” Because this Court’s jurisdiction lies under a provision of the
APA separate from 5 U.S.C. § 704, in combination with the authority granted to the ALJ
under the CSA, it is unnecessary to determine whether this Court has additional

5

jurisdiction to review the DEA’s refusal to comply with the subpoena as a final agency
action.
As stated, the disputed subpoena was issued by the ALJ under the express
authority of the Controlled Substances Act, pursuant to a revocation proceeding initiated
by the DEA. Upon completion of a lengthy investigation involving multiple investigatory
subpoenas, the DEA issued an OSC, providing Miami-Luken with a statement of the
legal and factual bases for the proposed revocation of its controlled substances
registration. See 21 U.S.C. § 824(c); 21 C.F.R. § 1301.37(c). In accord with the next
step in the agency’s administrative revocation process, an evidentiary hearing was set
before the ALJ. See 21 C.F.R. § 1301.44(e).
Prior to the evidentiary hearing originally scheduled for May 10, 2016, each party
was required to identify witnesses and submit “all documentary evidence and affidavits
to be marked for identification.” 21 C.F.R. § 1316.54(d) and (e). Unlike a civil suit in
this Court, there is “no general right to discovery…,but rather only a limited right to
receive in advance of the hearing the documentary evidence and summaries of the
testimony which the Government intends to rely upon.” Roy E. Berkowitz, 74 Fed. Reg.
36,758, 36,760 (DEA July 24, 2009).
As stated, the ALJ’s authority to hold the hearing (and to issue the subpoena in
advance of the hearing) arises from the CSA, which provides that the Attorney General
“may hold hearings, sign and issue subpenas, 4 administer oaths, examine witnesses,
and receive evidence at any place in the United States.” 21 U.S.C. § 875(a)(emphasis
added). The Attorney General has delegated this statutory authority to DEA ALJs,
including ALJ Mulrooney, so that they may issue subpoenas to compel the attendance

4

The statute uses the unusual spelling (or perhaps misspelling) of “subpena” rather than “subpoena.”

6

of witnesses and the production of materials “necessary to conduct administrative
proceedings pending before [them].”

21 C.F.R. § 1316.52(d); (see also Doc. 11.

PageID 208, DEA’s discussion of delegation of adjudicatory subpoena power to DEA
ALJs under the statutory authority of the CSA.)
The APA similarly authorizes all officials who preside over agency adjudications
to “issue subpoenas authorized by law.” 5 U.S.C. § 556(c)(2). Both parties agree that
any party (including Miami-Luken, as the party subject to the OSC), may request the
issuance of a subpoena from a presiding ALJ, based upon “a showing of general
relevance and reasonable scope of the evidence sought.” 5 U.S.C. § 555(d). In other
words, if a party can convince an ALJ that a subpoena is “necessary” for the ALJ to
adjudicate a proceeding, then the ALJ should order the subpoena to issue.
The undersigned concludes that the ALJ’s order, issuing the subpoena in the
underlying proceeding, constitutes “agency action reviewable by statute.”

Judicial

review of the subpoena is provided for in the CSA through explicit referral to Chapter 5
of the APA. Although the U.S. Supreme Court has made clear that neither 5 U.S.C. §
704 nor any other portion of Section 10 of the APA “afford[s] an implied grant of subject
matter jurisdiction permitting federal judicial review of agency action,” Califano v.
Sanders, 430 U.S. 99, 107 (1977) (emphasis added), Chapter 5 of the APA provides
both for the issuance of administrative subpoenas, and for judicial review of contested
administrative subpoenas. See 5 U.S.C. § 555(d).
Consistent with the same authority provided under the CSA, the referenced APA
provision generally sets forth that agency subpoenas are to be issued “on request and,
when required…, on a statement or showing of general relevance and reasonable
scope….” 5 U.S.C. § 555(d). Central to this Court’s exercise of jurisdiction, the statute
7

further states: “On contest, the court shall sustain the subpena or similar process or
demand to the extent that it is found to be in accordance with law. In a proceeding for
enforcement, the court shall issue an order requiring the appearance of the witness or
the production of the evidence or data.” Id.
Both parties cite to this statutory provision. (See, e.g., Plaintiff’s Memo, Doc. 1-1,
PageID 16; Defendant’s Memo, Doc. 11, PageID 208). The undersigned finds ample
case law to support the premise that the explicit provision for judicial review of
administrative subpoenas provided in 5 U.S.C. §555(d) falls within the more general
APA provision for court review of “agency action made reviewable by statute.” The
contested administrative subpoena was issued pursuant to the express statutory
authority delegated to the ALJ under the authority of the CSA in 21 U.S.C. § 875(a), and
is made reviewable by this Court under the express language of the APA itself.
The Sixth Circuit and other courts within this circuit have long relied upon this
same provision when reviewing the enforceability of administrative subpoenas in other
contexts. The Sixth Circuit also has confirmed that initial review of the enforceability of
administrative subpoenas generally lies in the district court. See e.g., Doe v. United
States, 253 F.3d 256 (6th Cir. 2001) (explaining jurisdictional basis and standards
applicable to judicial review). It is true that the DEA’s authority to issue an adjudicatory
subpoena and its authority to issue an investigatory subpoena under the CSA rely on
different statutory provisions. In truth, the statutory provision authorizing the issuance of
investigatory subpoenas is far more detailed than the provision that governs the
issuance of adjudicatory subpoenas. Compare 21 U.S.C. § 875(a) (power to issue
adjudicatory subpoena) with 21 U.S.C. § 876(a) and (b) (power to issue investigatory
subpoena). With respect to investigatory subpoenas, Congress has expressly spelled
8

out the authority of the Attorney General to “invoke the aid of any court” in enforcement
proceedings. See 21 U.S.C. § 876(c). Unsurprisingly, the overwhelming majority of
court cases involving the enforcement of administrative subpoenas, whether filed by the
DEA under the CSA, or by any other agency governed by the broader provisions of the
APA, involve investigatory subpoenas.
In contrast to the more detailed provision providing for judicial review of
investigatory subpoenas issued by the DEA under § 876(c), 21 U.S.C. §875(b) makes
clear that “[e]xcept as otherwise provided in this subchapter, …hearings shall be
conducted under appropriate procedures of subchapter II of chapter 5 of Title 5.” In
short, 21 U.S.C. § 875(b) makes abundantly clear that judicial review of subpoenas
issued under § 875(a) is through Chapter 5 of the APA. Notwithstanding the fact that
most litigated cases concern the enforcement of administrative subpoenas issued under
an agency’s investigatory authority, the APA provision providing for court review of
administrative subpoenas makes no distinction between investigatory subpoenas and
adjudicatory subpoenas. Therefore, jurisdiction exists under both 21 U.S.C. § 875(b)
and 5 U.S.C. § 555(d).
Relying on broad language that the APA does “not limit or repeal additional
requirements imposed by statute,” see 5 U.S.C. § 559, the DEA argues that under the
CSA, judicial review of DEA actions is permitted only for “final determinations, findings
and conclusions.” 21 U.S.C. § 877. Similarly, the DEA argues that the APA itself
permits review only of “final agency action,” by preventing challenges to “preliminary,
procedural, or intermediate agency action” before the agency has issued a final
determination. 5 U.S.C. § 704. Under the DEA’s construction, a court could never
review any administrative subpoenas issued by the DEA (including, at least arguably,
9

the enforcement of investigatory subpoenas), 5 or any other action connected with a
revocation proceeding until long after the ALJ issues his or her findings, because the
DEA contends there is no “final” agency action until such time as the DEA Administrator
acts on the ALJ’s preliminary decision and makes a final revocation determination.
Further, according to the DEA, any decision on the subpoena cannot be considered
“final” unless and until the ALJ’s decision on the subpoena has undergone further
review by the Administrator. Ordinarily, no review of an ALJ’s subpoena (or any other
procedural issue) would occur prior to review of the ALJ’s revocation decision after the
underlying hearing has concluded, unless an interlocutory appeal of the subpoena has
been expressly authorized by the ALJ. 6 Alternatively, the DEA posits that if any federal
court jurisdiction over the enforcement of the administrative subpoena exists, jurisdiction
would lie in the Sixth Circuit Court of Appeals and not this Court, since the appellate
courts have exclusive jurisdiction of final registration revocation determinations.

21

U.S.C. § 877.
This Court can agree with only a portion of the DEA’s argument: that judicial
review of any final registration revocation by the DEA Administrator is confined to the
federal appellate courts. See 21 U.S.C. § 877. Otherwise, the undersigned finds the
DEA’s position to be untenable, and a significant misreading of the statutory framework
of both the CSA and APA. The referenced statutory provision of the Controlled
Substances Act does not override all other provisions of that Act, including 21 U.S.C. §
875(b), which incorporates the APA provisions for the enforcement of all administrative

5

Although the CSA specifically provides for judicial enforcement of an investigatory subpoena issued by
the DEA in 21 U.S.C. § 876(c), the referenced provision does not specify the timing of judicial
enforcement.
6
The DEA admits that “generally, the DEA Administrator will not review any ALJ decision before the close
of the hearing.” (Doc. 11 at 4). In this case, the ALJ denied the DEA’s request to certify his subpoena
order for an interlocutory appeal to the Administrator.

10

subpoenas.

Since the same statute applies to both investigatory and adjudicatory

subpoenas, this Court has jurisdiction over Miami-Luken’s enforcement action.
B. Prudential Ripeness for Judicial Review
As a second threshold issue, the DEA argues that Miami-Luken’s motion should
be denied based upon the “prudential ripeness doctrine.” See generally Abbott Labs. v.
Gardner, 387 U.S. 136, 148-149 (1967), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977). As the DEA concedes, the continued vitality of that
doctrine is open to debate, following the Supreme Court’s decision in Susan B. Anthony
List v. Driehaus, 134 S. Ct. 2334, 2347 (2014); see also Kiser v. Reitz, 765 F.3d 601,
606-07 (6th Cir. 2014). However, there is no need to weigh in on that debate. To the
extent the doctrine retains any applicability, it does not favor this Court’s abstention from
review of the instant dispute.
For the reasons discussed above, both the CSA and the APA favor the exercise
of jurisdiction by this Court to rule on the enforceability of the ALJ’s adjudicatory
subpoena.

Although the DEA urges this Court to forego any review until after the

conclusion of the underlying evidentiary hearing, that course of action would frustrate
the entire purpose of the subpoena — which the ALJ issued as “necessary” to conduct
the same hearing. The ALJ already has stayed the evidentiary hearing until this Court
completes its review of the contested subpoena. And the parties have fully briefed the
underlying issues regarding whether the subpoena should be enforced. In other words,
interference with administrative proceedings is more likely to result if this Court foregoes
the judicial review process provided by statute, than if it engages in such review.

11

As the ALJ put it in explaining his decision not to certify an extraordinary
interlocutory appeal of his order to the Administrator, but instead to require the parties to
proceed to judicial review:
There is…no DEA agency decision that would in any way support the
incessant forwarding of routine hearing decisions such as the issuing of
subpoenas to the head of the Agency as a matter of course for no greater
reason than the Government disagrees with them. The next logical step
could be that the Government could seek appeal [to the Administrator] for
every hearsay or other evidentiary objection that is not to the
Government’s liking. Federal agency heads would need to virtually stand
at the [ALJ’s] courtroom door to ensure that the Government is afforded
an instantaneous endorsement or reversal of every adverse ruling during
the course of the [administrative] proceedings.
(Doc. 1-13, PageID 138, n.1).

III.

Enforceability of the Administrative Subpoena

Having determined both that this Court has jurisdiction to review the
enforceability of the contested subpoena, and that it should not abstain from exercising
that jurisdiction, the Court turns to the merits of the underlying dispute over the breadth
and scope of the subpoena.
The Sixth Circuit has acknowledged that the role of the district court in
enforcement proceedings is limited. United States v. Markwood, 48 F.3d 969, 976 (6th
Cir. 1995). In this case, the APA advises that the court should enforce an agency
subpoena “to the extent that it is found to be in accordance with law.” 5 U.S.C § 555(d).
In general, the court gives deference to agency subpoenas, and “request for documents
should be approved by the judiciary so long as it ‘is within the authority of the agency,
the demand is not too indefinite and the information sought is reasonably relevant.’” Doe
v. United States, 253 F.3d 256, 263 (6th Cir. 2001) (quoting United States v. Morton
Salt Co., 338 U.S. 632, 652-53 (1950)). Thus, in this enforcement proceeding there are
12

only two considerations before the Court, 1) whether the subpoena issued is authorized
by statute and 2) whether the demand is definite and reasonable.
A. Statutory Basis for Subpoena Power
As previously discussed, Congress granted the Attorney General subpoena
power. See 21 U.S.C. § 875(a). In turn, the Attorney General has delegated this
statutory authority to issue subpoenas to ALJs “to the extent necessary to conduct
administrative hearings pending before [them].” 21 C.F.R. § 1316.52(d). The DEA
makes much of the word “necessary,” arguing that Miami-Luken cannot show that the
documents requested are necessary because the “DEA cannot use any new documents
at the hearing, at least without first providing them to Miami-Luken.” (Doc. 11, PageID
219) (citing 21 C.F.R. § 1316.57). DEA also posits that if the requested documents are
not necessary, the subpoena is not “‘in accordance with law’ and cannot be judicially
enforced.” (Id. (quoting 5 U.S.C. § 555(d).)
According to the CSA, the purpose of the ALJ’s subpoena power is “to conduct a
fair hearing, to take all necessary action to avoid delay, and to maintain order.” 21 C.F.R
§ 1316.52. In its objections to the subpoena, DEA asserts that Miami-Luken should only
be allowed access to the documents the DEA plans to produce as exhibits in the
hearing. (See Doc. 11, PageID 219.) If that were the case, the ALJ’s subpoena power
would be rendered impotent. The DEA admits that private parties have access to the
subpoena power of the ALJ. (Doc. 11, PageID 207, “either the agency as regulator or
the regulated entity…may request that the ALJ issue a subpoena.”) However, as ALJ
Mulrooney noted, “[i]f a federal agency was empowered to capriciously limit the
Administrative Law Judge’s subpoena authority…it would hardly be ‘mak[ing] agency
subpoenas available to private parties to the same extent as agency representatives.’”
13

(Doc 1-9, PageID 120, quoting U.S. Dep’t of Justice Attorney General’s Manual on the
Administrative Procedure Act

§ 6(c), at 67.) Instead, the agency would only have to

release documents that it found “necessary” for the hearing, and the ALJ would have no
subpoena power to require otherwise. The undersigned rejects this theory and finds that
the plain meaning of the statute gives the ALJ discretionary authority to determine what
he needs to conduct a fair, expeditious, and orderly hearing, and therefore allows the
ALJ to issue subpoenas to that end.
B. Definiteness and Reasonableness of the Request
As the undersigned finds that the ALJ had the requisite statutory authority to
issue the subpoena, she must now consider whether Miami-Luken’s subpoena request
was definite and reasonable. The ALJ issued a subpoena that adopted Category (2)-(4)
of Miami-Luken’s drafted subpoena request. In order to determine whether the
subpoena is enforceable, the undersigned must consider each part of the subpoena
separately. Then, the undersigned will “‘weigh the likely relevance of the requested
material to the investigation against the burden...of producing the material.’” Doe v.
United States, 253 F.3d at 267 (quoting EEOC v. Ford Motor Credit Co., 26 F.3d 44, 47
(6th Cir. 1994.)
Category (2) of the contested subpoena seeks documents that relate to routine
audits or cyclic investigations of Miami-Luken that the DEA has conducted since 2008,
including “Government comments, communications (both oral and written), and all
notifications of any kind directed at Respondent, its agents, employees, and
representatives in relation to such reports, audits, and investigations.” (Doc. 1-5,
PageID 88; Doc. 1-6, PageID 91.) Miami-Luken explains that it seeks the information in
order to “reveal whether Miami-Luken was in compliance or violation of applicable DEA
14

regulations” throughout the relevant time period. (Doc. 1-5, PageID 82.) Miami-Luken
also asserts that this request is both definite and reasonable because it “focuses
narrowly on” and is “directly relevant to the DEA’s allegation.” (Doc. 1-1, PageID 19.)
Category (3) seeks “all records regarding briefings provided by DEA
Headquarters and/or DEA local office-personnel as part of the DEA’s Distributor
Initiative,” on grounds that the information “may reveal the basis of or updates to the
DEA’s treatment of compliance requirements under the applicable regulations over the
relevant time period,” and “may reveal any consistencies or inconsistencies regarding
DEA instructions to different registrants and/or the DEA’s definition of adequate
compliance between DEA Headquarters and local office personnel.” (Doc. 1-5, PageID
84.)
Category (4) seeks “[a]ll records, including investigative reports, from 2008present, documenting that Respondent violated the applicable controlled substances
laws and regulations…to evidence that Respondent’s conduct created the potential for
the diversion of controlled substances.” (Doc. 1-5, PageID 88; Doc. 1-6, PageID 91.)
Miami-Luken asserts that this request “goes to the heart” of the DEA’s case and “seeks
the very documentation that purportedly prompted the DEA to allege such violations.”
(Doc. 1-1, PageID 21.) Miami-Luken further contends that these records “are integral for
Miami-Luken to corroborate or disprove the allegations in the OSC.” (Id.)
The DEA rejects the subpoena as a whole and maintains that it would “require
several weeks, if not months, to search for, review, and produce responsive
documents.” However, the DEA’s primary objection is that the subpoena contravenes
“decades of practice and precedent regarding the scope of disclosures that are required
or appropriate in DEA administrative proceedings.” (Doc. 11, PageID 211.) In support
15

of this contention, the DEA supplied affidavits from a Deputy Assistant Administrator
and an Assistant Administrator and Chief of Operations of the DEA. (Docs. 11-1, 11-2.)
There was no case law precedent cited.
In his affidavit, Louis Milione states that “[f]or the purposes of an administrative
hearing, the parties to the adjudication may request adjudicatory subpoenas from the
presiding ALJ. The ALJ must grant a request for a subpoena for information that is
necessary for the hearing.” (Doc. 11-1, PageID 226 at ¶ 9.) In Milione’s opinion, this
means that the ALJ should grant a subpoena request if it “compels either a witness to
testify at the hearing or the production of evidence for use as an exhibit.” The DEA,
resting solely on Milione’s opinion, claims that this is the only circumstance under which
the ALJ can issue a subpoena. (Doc. 11, PageID 219.) The DEA believes that MiamiLuken’s request is a “classic fishing expedition” and not a legitimate request for relevant
evidence. (Id.)
The other DEA affiant, Anthony Williams, expressed concern about “any
expansion to the subpoena authority permitted in suspension or revocation
proceedings.” (Doc. 11-2, PageID 230 at ¶ 8.)

Williams primarily worries that the

efficiency and efficacy of the revocation process might be compromised if this Court
enforces “document subpoenas akin to civil discovery.” (Id.) Williams suggests that
“[t]here is minimal utility from such an enhanced burden because DEA already provides
a registrant all of the documents DEA will use as evidence against the respondent in
advance of the hearing.” (Id. at ¶ 9.) Further, he states that “if the administrative process
were prolonged to account for discovery, it would be less attractive to law enforcement
personnel.” (Id., PageID 231 at ¶ 10.) He also contends that expansive subpoena
requests would be burdensome to the agency, and “would detract from the amount of
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time that senior agency leadership has to perform a range of other responsibilities in
connection of with DEA’s misson.” (Id., PageID 232 at ¶ 12.) This Williams says “would
significantly compromise DEA’s efforts to combat diversion and ultimately pose an
enhanced public health and safety risk.” (Id., at ¶ 13.)
While these policy considerations are not lost on the undersigned, the DEA does
not illuminate how any of them speak to either the definiteness or reasonableness of the
specific request made by Miami-Luken in this case. The DEA makes clear that
discovery is not allowed and that exculpatory evidence need not be disclosed
throughout the evidentiary hearing process, but does not provide a sufficiently
compelling justification for denying Miami-Luken’s subpoena request in whole. For that
reason, the undersigned finds that the subpoena request should be enforced with
modification.
The undersigned finds that the subpoena as written creates an undue burden on
the DEA to produce documents that are likely to be irrelevant to the evidentiary hearing.
If the subpoena is enforced as written, the DEA would have to expend needless time
and resources to comply, with little benefit to Miami-Luken.
First, Miami-Luken’s Category (2) request for “Government comments,
communications (both oral and written), and all notifications of any kind directed at
Respondent, its agents, employees, and representatives” in relation to its Category (2)
request is unreasonable. The request for comments and communication is overbroad
and burdensome, and likely protected by a privilege. Furthermore, the Respondent
should already have access to most of this information because, by definition, it was
directed at them. Miami-Luken provides no justification for shifting the burden of
compiling this evidence to the DEA, given the fact that Miami-Luken could just as easily
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look at its own records to find the same information. Thus, this part of the request is
stricken.
Additionally, the DEA strongly objects to providing Miami-Luken with the
investigative reports requested in Category (2) and (4). The undersigned finds that
those documents are reasonably relevant to the hearing. However, recognizing that
there may be sensitive information in the investigative reports not relevant to the
findings as they relate to Miami-Luken,—for example, investigatory techniques—the
undersigned will allow for the DEA to provide Miami-Luken with reasonably redacted
versions. All remaining language in Category (2) shall be left intact.
Miami-Luken’s Category (3) request is premised on a tenuous theory that the
DEA may have inconsistencies in its instructions to different registrants. (See Doc. 1-1,
PageID 20-21.) The request is general and very broad and would likely require the DEA
to produce hundreds of documents that are not relevant to the issue before the ALJ,
which is limited to Miami-Luken. Miami-Luken has not established why it believes that
the DEA has been inconsistent, so there is no reason for the undersigned to find that
the documents requested are relevant enough to justify the burden of producing them.
Thus, this request shall be stricken in its entirety.
Finally, the Court finds Category (4) to be reasonable as limited above regarding
investigative reports.
IV.

Conclusion and Order

For the reasons stated herein, IT IS ORDERED that the DEA abide by the
subpoena as limited by this Order. Such response shall be produced within 21 days of
this Order.

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IT IS SO ORDERED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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