Miami-Luken, Inc. v. Drug Enforcement Agency

Filing 33

REPORT AND RECOMMENDATIONS re 27 MOTION to Set Aside Judgment filed by Drug Enforcement Agency. IT IS RECOMMENDED THAT Defendant DEA's Rule 60(b) motion seeking relief from this Court's 4/21/2017 final Order and to set aside the Court 's judgment 27 should be DENIED, without prejudice to renew (if appropriate) following the conclusion of the related case in the Sixth Circuit. Objections to R&R due by 8/15/2017. Signed by Magistrate Judge Stephanie K. Bowman on 8/1/2017. (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.
REPORT AND RECOMMENDATION

Pursuant to custom and practice, this miscellaneous action was referred to the
undersigned magistrate judge. Currently pending is the DEA’s Rule 60(b)(5) motion to
set aside the prior decision of this Court. I now recommend that the DEA’s motion be
DENIED.
I.

Background

The underlying action was initiated in this Court on May 18, 2016, when Plaintiff
Miami-Luken, Inc. (“Miami-Luken”) filed an “emergency motion” seeking to compel the
Drug Enforcement Administration (“DEA”) to comply with an administrative subpoena 1
issued by Chief Administrative Law Judge (“CALJ”) John J. Mulrooney. 2 However, the
administrative proceedings that led to this federal litigation began much earlier.

1

Virtually all administrative subpoena disputes that percolate up to the federal court level involve
investigatory subpoenas, not adjudicatory subpoenas like the one at issue in this case. The differences
between the two types were discussed in the prior Order of this Court. Thus, at the outset, the
undersigned acknowledges (as do the parties) that there is little if any case law precisely on point. (See
Doc. 23 at 11).
2
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). He currently presides as the DEA CALJ, but his public service 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 service as a judge

1

Plaintiff Miami-Luken is a Dayton Ohio pharmaceutical wholesaler with a DEA
registration that permits it to operate its business. For nearly a decade, 3 Plaintiff has
been under DEA scrutiny for “facilitat[ing] the diversion of significant quantities of the
highly addictive pain killers, oxycodone and hydrocodone.” (Doc. 11 at 2.) The Court
takes judicial notice of the fact that the referenced prescription drugs are among a class
of opioids that have been commonly recognized as contributing to an ongoing opioid
crisis in the United States. Over the course of its investigation, the DEA has issued
numerous investigatory subpoenas to Miami-Luken, requiring the production of
documents to DEA investigators, primarily in the Cincinnati, Ohio office.
The DEA conducts administrative, civil, and criminal proceedings. Among the
administrative tools that the DEA has employed to combat the opioid crisis are
immediate suspension orders and revocation orders. Although an immediate
suspension order may be entered without a hearing, revocation orders involve a
different administrative process. Compare 21 U.S.C. § 824(c) and (d). 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 a provision of the Controlled Substances Act, as “inconsistent with the public
interest.” (Doc. 1-2.); see 21 U.S.C. § 824(a)(4). As part of the revocation process, an
evidentiary hearing (at which the DEA bears the burden of proof) was scheduled by
CALJ Mulrooney to take place on May 10, 2016. See 21 C.F.R. §1301.44(e).

on the Navy-Marine Corps Court of Criminal Appeals and as an administrative law judge at the Social
Security Administration. Id. at n.a1.
3
Although precise dates are not clear from the record of this Court, the investigation appears to have
begun in 2007 or 2008. 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 at 9, additional citation omitted).

2

Prior to that revocation hearing, Miami-Luken filed a Request for Issuance of a
Subpoena (Doc. 1-3) that sought a large number of DEA records that Plaintiff asserted
were necessary to adequately defend itself. An ALJ has the power to receive evidence
and to issue subpoenas to compel the attendance of witnesses and the production of
materials “necessary” for the hearing. See 21 C.F.R. §1316.52(d). However,
administrative revocation hearings do not include the type of discovery process that is
available to civil litigants in this Court. Citing that principle, the DEA objected to the
issuance of an adjudicatory subpoena that would require the DEA to produce any
records, other than those that the DEA itself planned to use at the hearing. In an April
12 omnibus order denying Miami-Luken’s request, CALJ Mulrooney agreed that the
subpoena was “simply too broad,” with portions amounting to an impermissible “fishing
expedition” (Doc. 1-4 at 14).

Nevertheless, the CALJ denied the request without

prejudice to Miami-Luken to amend its request by April 18, 2016. (Doc. 1-4 at 16, n.24).
On April 18, 2016, Miami-Luken timely submitted a Supplemental Request for
Issuance of a Subpoena, requesting four specific categories of documents. (Doc. 1-5).
The same day, without awaiting any additional response from the DEA, the CALJ
granted the amended request and issued the subpoena, directing DEA to produce three
of the four categories of documents prior to the administrative hearing. (Doc. 1-6). On
May 3, the DEA filed a motion for reconsideration or, in the alternative, for leave to file
an interlocutory appeal to the DEA Administrator. (Doc. 1-8). In part, the DEA argued
that to comply with the subpoena would cause the DEA “irreparable harm.” (Id.)
On May 4, the CALJ denied the DEA’s motion, refusing either to reconsider the
issuance of the subpoena or to allow an interlocutory appeal. (Doc. 1-9). Instead, the
CALJ held that to the extent that the DEA wished to further contest the subpoena,
3

further arguments “are properly made only before a ‘court of the United States.’” (Id. at
7). The Office of Chief Counsel for the DEA filed a “Government Notice” in response to
the CALJ’s May 4 order on the same day, which “respectfully decline[d] to comply” with
the subpoena. (Doc. 1-10).
In response to the DEA’s refusal to comply with the subpoena issued by CALJ
Mulrooney, Miami-Luken requested a stay of the scheduled hearing, and the CALJ
granted that request. (Doc. 1-11). To date, the stay of the revocation proceeding at the
administrative level remains in effect, pending the outcome of this federal litigation.
As stated, after the DEA refused to comply with the subpoena, Miami-Luken filed
an “emergency motion” in this Court seeking to enforce the subpoena as necessary to
the hearing in part on due process grounds. The DEA vigorously defended its refusal to
comply with the subpoena, arguing that its issuance contravenes “decades of practice
and precedent regarding the scope of disclosures that are required or appropriate in
DEA administrative proceedings.” (Doc. 11 at 10). On July 15, 2016, the undersigned
filed a Memorandum Order that granted in part Plaintiff’s motion to enforce the
administrative subpoena.

The undersigned directed the DEA to comply with the

subpoena within 21 days, but narrowed its scope. (Doc. 15). Thus, the undersigned
directed production of only two categories of materials out of the three categories
authorized by the CALJ. The Order further stated that the DEA would be permitted to
respond to the remaining two categories by disclosing “reasonably redacted” documents
that protected “sensitive information in …investigative reports not relevant to the [DEA’s]
findings as they relate to Miami-Luken – for example, investigatory techniques.“ (Doc.
15 at 18).

4

On July 29, 2016, U.S. District Judge Dlott granted the DEA’s unopposed motion
to stay the Order pending the Court’s ruling on Objections. Following full briefing by the
parties, Judge Dlott granted the DEA’s request for oral argument on its Objections,
setting a hearing for February 17, 2017. (Doc. 23). On April 21, 2017, after considering
“de novo all the filings in this matter,” Judge Dlott overruled the DEA’s Objections and
adopted the undersigned’s Memorandum Order. 4 Judge Dlott’s Order also terminated
the case. (Doc. 24).
The entry of the April 21, 2017 Order enforcing the subpoena reinstated the 21
day clock for the DEA to comply with that subpoena, as modified by this Court.
However, on the last date for compliance, the DEA filed an “Emergency Motion to Stay”
dismissal of this case and to excuse any further compliance with the Court’s Order. The
DEA’s motion stated that the DEA Acting Administrator had issued a May 12, 2017
Order that quashed the subpoena issued by CALJ Mulrooney. Because this Court’s
Order directs the DEA to comply with a subpoena that (purportedly) has been quashed,
the DEA stated its intention to move for relief from this Court’s judgment. On May 16,
2017, Judge Dlott granted the DEA’s motion for a temporary emergency stay “pending
the later of (i) the resolution of the DEA’s forthcoming motion for relief from judgment or
(ii) any appeal of the Court’s judgment has been resolved.” (Doc. 26).
The DEA did not appeal this Court’s final order of enforcement of the subpoena
to the Sixth Circuit, but instead, filed a motion seeking relief from this Court under Rule
60(b)(5) of the Federal Rules of Civil Procedure. Miami-Luken has filed a response, to
4

The Memorandum Order filed by the undersigned on July 15, 2016 determined that the enforcement of
an administrative subpoena was a non-dispositive matter that did not require a Report and
Recommendation. In adopting the Memorandum Order over the DEA’s objections, Judge Dlott appears
to have concurred with that analysis. In light of the issues of law presented and Judge Dlott’s express
statement that she conducted a “de novo” review of the same, however, any distinction between the
original filing of an Order or R&R was rendered moot. An R&R is filed to address the DEA’s current
motion, because 28 U.S.C. § 636(b) authorizes disposition by order only of pretrial matters. A Rule
60(b)(5) motion is not a “pretrial matter.”

5

which the DEA has filed a reply. On June 14, 2017, Judge Dlott referred the Rule
60(b)(5) motion to the undersigned.
On June 15, 2017, the parties filed a Joint Notice of Related Case, attesting to
the fact that Miami-Luken independently has appealed the DEA Administrator’s May 12,
2017 Order to the Sixth Circuit Court of Appeals. See Miami-Luken, Inc. v. DEA, Case
No. 17-3614 (6th Circuit). The pendency of that appeal impacts this case, but does not
stay proceedings in this Court.
II.

Analysis

The issues presented form a procedural maze (or perhaps quagmire), with
sufficient interplay between the Administrative Procedures Act and the Controlled
Substances Act, that proverbial rabbit holes abound at every twist and turn. However,
keeping the Court’s focus on the standards of Rule 60(b)(5), and for the reasons that
follow, the undersigned recommends the denial of Defendant’s motion for relief of
judgment, without prejudice to renew such motion following disposition of the related
appeal in the Sixth Circuit Court of Appeals.
Rule 60(b), Fed. R. Civ. P., provides that “[o]n motion and just terms, the court
may relieve a party or its legal representative from a final judgment, order or
proceeding” based on a list of specified reasons. Rule 60(b)(5), the provision under
which the DEA proceeds, offers relief if “the judgment has been satisfied, released or
discharged, it is based on an earlier judgment that has been reversed or vacated, or
applying it prospectively is no longer equitable.” The DEA readily admits it has not
complied with this Court’s April 21, 2017 Order directing it to immediately comply with
the adjudicatory subpoena, with a corresponding production of materials to Miami-

6

Luken. However, the DEA argues that the Order requiring the DEA to comply with the
administrative subpoena “is no longer equitable.” (Doc. 27).
The DEA represents that “[i]n the course of reviewing DEA’s compliance
obligations under the April 21 Order, specifically with respect to the assertion of
privileges, the DEA Administrator had his first occasion to review the underlying
administrative subpoena,…” (Doc. 27 at 3). The DEA maintains that the Administrator
“had not previously reviewed the issuance of the administrative subpoena because the
CALJ had denied a request for interlocutory appeal on that issue.” (Id.) The DEA goes
on to reason that because the CALJ issued the subpoena under power delegated to
ALJs by the Administrator, the Administrator (implicitly) was permitted to review the
underlying administrative subpoena when directed to comply with that subpoena by this
Court.

The DEA contends that once the Administrator identified “multiple errors

committed by the CALJ” in his issuance of the subpoena that this Court enforced, the
Administrator determined that letting the subpoena remain in effect would “adversely
affect the Agency’s administrative adjudication process.” (Doc. 27 at 2-3, citing Doc. 251, May 12, 2017 DEA Administrator Order at 11).
Contrary to this Court’s determination, the Administrator concluded that the CALJ
exceeded the CALJ’s authority in issuing the subpoena, that the documents are “neither
relevant nor material,” and therefore are not necessary for the CALJ to proceed with the
administrative revocation hearing. The DEA Administrator quashed the subpoena that
this Court previously had upheld as valid and enforceable.

The DEA asserts that

“changed conditions” (its own quashing of the subpoena that this Court enforced against
the agency) warrant relief under Rule 60(b)(5) or alternatively under the Court’s

7

“inherent powers.” See generally United States v. Swift & Co., 286 U.S. 106, 114
(1932).
The undersigned recognizes, as she did in her Memorandum Order of July 15,
2016, that important issues of policy loom large in this case. The issues are of first
impression in the Sixth Circuit (if not nationally), and both parties stress the far-reaching
impact of their dispute in the broader context of DEA’s continuing efforts to curb the
opioid epidemic. (See, e.g., Doc. 18 at 3: “[T]he stakes are high; on the line is not
merely DEA’s one-time compliance with an adjudicatory subpoena, but rather the
effective functionality of the administrative process for revoking and suspending the
registrations of entities that illegally import, manufacture, distribute, or dispense
controlled substances.” and Doc. 23 at 15, noting issues are “very rare” and “of first
impression”).

It is entirely possible that an appellate court would view the issues

differently than previously determined by this Court. However, the key here is that
review of this Court’s Orders is appropriate only by an appellate court. An agency that
has been directed to comply with a district court’s order has no authority to simply
disregard it through use of a procedural end-run. The DEA’s Rule 60(b)(5) motion in
this case must be denied because it is based upon a fundamentally untenable
procedure, whereby the DEA Administrator created its own “changed circumstance” by
“quashing” an Order that already had been determined by this Court to be valid and
enforceable, rather than either choosing to comply with this Court’s Order or to file a
further appeal.
The DEA’s statement that its Administrator embarked on this unique course of
action because he was unable to review the subpoena prior to this Court’s order of
enforcement is disingenuous. The Commissioner is the head of the DEA, and the
8

lawyers who represent the DEA are assumed to represent the agency not only in the
agency’s prosecutorial role but insofar as the DEA is led by the Commissioner. When
the DEA previously appeared before this Court, it not only had ample opportunity to
present its arguments relating to the CALJ’s authority (or lack thereof) to issue the
subpoena, the scope of the subpoena, the relevancy of the materials, and issues of
privilege, but it availed itself of that opportunity. Indeed, the DEA argued quite forcefully
that the subpoena is unenforceable because it is not “in accordance with law.” (See
Doc. 11 at 3, 10, 17-21, Gov’t Notice at 1-10 (May 18, 2016)). 5
Of course, before presenting those arguments to this Court, the DEA made the
same arguments to the CALJ. (See generally, Doc. 11 and Doc. 11-3, Gov’t Resp. To
Resp’t’s Req. for Issuance of a Subpoena (April 7, 2016) and Decl. of Anthony D.
Williams, Doc. 1-8 (May 18, 2016)).

The Administrator’s May 12, 2017 Order

acknowledges that the DEA previously argued before the CALJ, in a motion to
reconsider, that the CALJ exceeded his authority in issuing the subpoena, and that
interlocutory appeal to the Administrator was appropriate. (Doc. 32-1 at 7 and n.3; see
also Doc. 11-3 at 4, arguing that the subpoena request “exceeds the hearing subpoena
authority conferred both by the Administrative Procedure Act and applicable DEA
regulations.”).

After the CALJ rejected those arguments and Maimi-Luken initiated

litigation in this Court, the DEA continued to press the same arguments. Moreover, as
the CALJ pointed out in his May 15, 2017 Order continuing the stay of the underlying
administrative revocation hearing pending this Court’s decision on the DEA’s Rule
60(b)(5) motion, the CALJ sent the DEA Administrator a Subpoena Transmittal Request
on May 26, 2016 that sought enforcement of CALJ’s Order/Subpoena
5

The DEA also argued that this Court lacked jurisdiction to enforce the subpoena under the Administrative
Procedures Act, and/or that Miami-Luken’s motion to enforce the subpoena should be denied under the
prudential ripeness doctrine.

9

by requesting that the DEA Administrator “forward the Agency Subpoena
to the Department of Justice to ‘invoke the aide of [a] court of the United
States… to compel compliance’ 21 U.S.C. § 876(c).” …By the Subpoena
Transmittal Request (filed nearly a year ago), this tribunal [the CALJ]
petitioned the DEA Administrator to act, not in his prosecutorial capacity,
but in his capacity as a neutral adjudicator, in seeking enforcement of the
subpoena validly issued under APA…. Although this tribunal’s request
was neither granted nor denied, on June 3, 2016, the DEA Administrator
issued a notification that he was transmitting the Subpoena Transmittal
Request, not to the Department of Justice to pursue an enforcement
action, but to the “Federal Programs Branch of the Civil Division of the
Department of Justice, to take whatever action it deems appropriate.”
Admin. Transmittal Notice at 1. Thus, not only did the Administrator not
seek enforcement of the subpoena issued by the tribunal [the CALJ] in the
courts, but he forwarded the Subpoena Transmittal Request to the same
branch of the Department of Justice that was already charged with
defending against compliance with the subpoena in the District Court.
(Doc. 28-1 at n.1, emphasis added). The CALJ’s May 15, 2017 Stay Order continues
on at some length to describe a number of “challenging” (i.e., logically inconsistent)
positions taken by the DEA Administrator to explain “why a compliance review of the
District Court’s Order would provide the DEA Administrator with a legal procedural
opportunity to review” the “propriety and legality” of the subpoena. (Id. at 4, n.1).
Irrespective of the DEA Administrator’s alleged inability of an opportunity to
review the subpoena at the administrative level, the DEA clearly made the
Administrator’s position known to this Court. In its response in opposition to the original
motion to compel compliance with the subpoena, the DEA attached the affidavit of Louis
J. Milione, the Deputy Assistant Administrator and head of the Office of Diversion
Control for the DEA, as well as the affidavit of Anthony Williams, the Assistant
Administrator and COO of the DEA. 6

(Docs. 11-1, 11-2). Consistent with the Acting

Administrator’s May 12, 2017 Order, Assistant Administrator Williams’ affidavit focused
on the DEA’s position that the issuance of the subpoena was contrary to regulatory
6

At oral argument the DEA emphasized that the affidavit was from “the chief of DEA’s worldwide
operations.” (Doc. 23 at 62).

10

authority as well contrary to the policies, custom and practice of the DEA. 7 Although the
DEA generally argued against consideration of the entire dispute under the prudential
ripeness doctrine, this Court rejected that argument and proceeded to the merits of the
scope of the subpoena. In the Objections filed before U.S. District Judge Dlott, and at
oral argument held on February 17, 2017, the DEA reiterated its positions that the
subpoena exceeded the scope of the CALJ’s authority to issue an adjudicatory
subpoena, that the DEA Administrator should have been permitted to further review the
subpoena, and that none of the documents referenced in the subpoena (even as
modified by the Memorandum Order) were “necessary” to the hearing. (See generally
Docs. 18, 23). In adopting the undersigned’s Memorandum Order as the final Order of
this Court, Judge Dlott rejected the DEA’s challenges to judicial enforcement, including
its argument that the CALJ “is not the final arbiter of the legality of the subpoena or
DEA’s compliance with it,” but instead that the DEA Administrator “has final authority
over the subpoena.” (Doc. 18 at 4).
In sum, this Court previously determined that it had jurisdiction to compel
enforcement of the subpoena issued by the CALJ, and that the doctrine of prudential
ripeness did not apply, rejecting further review by the Administrator. After reviewing the
legality of the CALJ’s Order issuing the subpoena on the merits and the scope of that
subpoena, this Court issued its final order compelling the DEA to comply. A district
court ruling that enforces an administrative subpoena is considered to be an appealable
final order. See generally United States v. Van, 931 F.2d 384, 386 (6th Cir. 1991); see
also McLane Company, Inc. v. EEOC, 137 S. Ct. 1159 (2017)(holding that a district
court’s decision to enforce or quash an administrative subpoena should be reviewed by
7

The DEA Administrator’s May 12, 2017 Order “quashed” the subpoena on grounds that the CALJ’s Order
issuing it was an “abuse of discretion,” but articulated reasons that mirrored the arguments previously
presented to and rejected by this Court. (See Doc 25-1).

11

appellate courts under abuse of discretion standard). 8 To the extent that the DEA
Administrator continued to object to complying with the Court’s Order, his recourse was
to file an appeal with the Sixth Circuit Court of Appeals.

After this Court entered its

Order, the DEA had no authority to re-determine issues previously reviewed and
determined by this Court. The only discretion expressly given to the DEA by this Court
was to implement “reasonabl[e]” redactions of “sensitive information in …investigative
reports not relevant to the [DEA’s] findings as they relate to Miami-Luken – for example,
investigatory techniques.“ (Doc. 15 at 18). Nothing in this Court’s Order permitted the
DEA Administrator to set aside the subpoena, as if this Court’s rulings were of no effect.
Thus, the DEA Administrator’s position that because he has final authority over privilege
assertions, he could review the entire validity of the subpoena, is contrary to the
express directives of this Court’s Order.
In support of its assertion of changed circumstances that require relief under
Rule 60(b)(5), the DEA relies upon cases holding that where the entity issuing the
subpoena retracts the subpoena, a later court proceeding regarding the retracted
subpoena becomes moot. See, e.g., In re Grand Jury Proceedings, 574 F.2d 445, 446
(8th Cir. 1989), Hulec v. J.H. Bennet & Co., 2014 WL 2918542 at *1 (N.D. Ohio June
26, 2014). However, the referenced cases involve situations in which a motion to quash
a subpoena is rendered moot by the opposing party’s decision to withdraw that
subpoena. The cases might apply if Miami-Luken withdrew its request for enforcement
of the subpoena, but clearly that is not the case.
The Administrator may not agree with this Court’s decision to enforce the
subpoena issued by the CALJ, but he cites no authority to overturn it at this late
8

Cf id. at 1170 (Ginsburg, J., concurring in part and dissenting in part on grounds that a lower court’s
resolution of a question of law is ordinarily reviewable de novo on appeal).

12

juncture. After this Court reviewed and issued a final order of enforcement, the DEA
Administrator could not “quash” the same subpoena on grounds that this Court had
already rejected. “Rule 60(b)(5) may not be used to challenge the legal conclusions on
which a prior judgment or order rests, but the Rule provides a means by which a party
can ask a court to modify or vacate a judgment or order ‘if a significant change either in
factual conditions or in law renders enforcement detrimental to the public interest.’”
Horne v. Flores, 557 U.S. 433, 447 (2009) (quoting Rufo v. Inmates of Suffolk County
Jail, 502 U.S. 367, 384 (1992)).
The DEA has failed to carry its heavy burden of showing a significant change in
law or fact. The undersigned does not agree that the DEA Administrator’s attempt to
effectively overturn this Court’s decision by quashing the subpoena on grounds
previously rejected by the Court can constitute a significant change in law or fact. See
Northridge Church v. Charter Twp. Of Plymouth, 647 F.3d 606, 618 (6th Cir. 2011)
(denying Rule 60(b)(5) motion based on party seeking to escape judgment based on its
own voluntary actions). The DEA attempts to distinguish Northridge on grounds that it
involved the application of Rule 60(b)(5) to a consent judgment, which implicates
principles of contract law. However, the Northridge court expressly rejected the notion
that the application of Rule 60(b)(5) differs in that context. Id., 647 F.3d at 613.
The DEA further argues that enforcement of this Court’s Order is not equitable
because the “documents are no longer needed for the administrative adjudicatory
hearing.” (Doc. 27 at 5). Again, the cited authority, involving cases in which a motion to
enforce a subpoena is mooted by the subsequent cancellation of the hearing, is
inapposite. See e.g., Penn, LLC v. Prosper Bus. Devel. Corp., 2011 WL 3204723 at *4
(S.D. Ohio July 27, 2011). In contrast to those cases, it is abundantly clear that the
13

CALJ and the DEA fully intend to proceed with the scheduled revocation hearing for
which the subpoena was issued.
Finally, the DEA contends that the DEA Administrator has the authority to
overrule his subordinate’s decision to issue the subpoena independent of any
interlocutory appeal.

The DEA reasons that an ALJ’s authority flows from the

Administrator, and it is the Administrator who ultimately decides whether to adopt or
reject the ALJ’s proposed revocation decision.

However, the regulatory structure

ensures a measure of decisional independence by the ALJ. See 21 C.F.R. § 1316.52
(providing that ALJ has the duty to conduct a “fair hearing” with “all powers necessary”
including subpoena power); see also Harlene v. Drug Enforcement Admin., 148 F.3d
1199 (10th Cir. 1998) (discussing due process requirements and judicial independence
under the APA). In addition, the regulations prohibit interlocutory review by the DEA
Administrator absent the ALJ’s consent, which was denied here. Rulings of the ALJ
“may not be appealed to the Administrator prior to his consideration of the entire
hearing, except with the consent of the [ALJ] and where he certifies on the record or in
writing that the allowance of an interlocutory appeal is clearly necessary to prevent
exceptional delay, expense, or prejudice to any party or substantial detriment to the
public interest.” 21 C.F.R. § 1316.62. Regardless of how much the DEA Administrator
rails against the wisdom of the CALJ in denying interlocutory appeal of the issues
presented, the DEA cannot contest the CALJ’s authority to make that decision.
Still, the DEA insists that Miami-Luken’s position (that the Administrator lacked
authority to set aside the CALJ’s order/subpoena after this Court’s Order of
enforcement) “would elevate a DEA ALJ, who is a subordinate official to the DEA
Administrator, and who erred in refusing to certify this matter for interlocutory appeal,
14

above the head of the agency.” (Doc. 30 at 5). It is unnecessary to wade too deeply
into the scope of the DEA Administrator’s authority over an ALJ who has declined
interlocutory review prior to a judicial appeal, because that is not the issue before this
Court. To the extent that the DEA Administrator possesses authority to overturn the
CALJ’s denial of interlocutory appeal or to independently quash an adjudicatory
subpoena issued by the CALJ, any such authority did not survive issuance of this
Court’s Order. To paraphrase the DEA’s own argument, to allow the DEA Administrator
to take such an approach would elevate the DEA Administrator over this Court. In the
orderly administration of justice, appeals from agency decisions under the APA flow in
one direction – from the agencies to the federal courts – not the other way around. See
generally Mefford v. Garner, 383 F.2d 748, 758 (6th Cir. 1967) (holding that it is the duty
of an agency to comply with the mandate of the court without variation and without
departing from such directions, and that if a cause is remanded for a specified purpose,
any inconsistent proceeding is error).
After this Court’s contrary ruling, the DEA lacked authority to overrule this Court
and conclude that the documents are not relevant, material, or necessary for the
revocation hearing. The DEA’s stance amounts to an attempt to relitigate the issues.
“Rule 60(b) does not allow a defeated litigant a second chance to convince the court to
rule in his or her favor by presenting new explanations, legal theories, or proof.” Jinks v.
Allied Signal Inc., 250 F.3d 381, 385 (6th Cir. 2001); accord Casasanta v. Federal Nat.
Mortg. Ass’n, 2014 WL 1977038 at *3 (E.D. Mich. May 15, 2014)(Rule 60(b)(5) motion
denied because plaintiff was not entitled to a “do-over”).

15

III.

Conclusion and Recommendation

While the undersigned has explained the basis for recommending denial of the
Defendant’s Rule 60(b)(5) motion at this point in time, the undersigned is well aware of
the Plaintiff’s independent challenge to the DEA Administrator’s May 12, 2017 Order
that remains pending in the Sixth Circuit Court of Appeals. In the event that the Sixth
Circuit affirms the DEA Administrator’s Order quashing the subpoena that underlies this
Court’s Order, then the DEA will be able to carry its burden under Rule 60(b) to show
that enforcement of the April 21, 2017 Order is no longer equitable. However, as the
matter currently stands, the DEA has fallen short of that burden.
Accordingly, Defendant DEA’s Rule 60(b)(6) motion seeking relief from this
Court’s April 21, 2017 final Order and to set aside the Court’s judgment (Doc. 27)
should be DENIED, without prejudice to renew (if appropriate) following the conclusion
of the related case in the Sixth Circuit.

/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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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.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on
timely motion by either side for an extension of time.

All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in
support of the objections.

A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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