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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices
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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. Petitioners 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 Governments Opposition to the Motion to Stay As already discussed, the Government opposes Petitioners 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 Administrators decision. Govt Opposition, at 3. It argues that Petitioners Motion to Stay points without analysis or comparison to a single court of appeals decision finding that the Agencys decision to revoke a practitioners registration was arbitrary. Id. citing Morall v. Drug Enft 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 Agencys choice of sanction is 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.

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entitled to substantial deference. Govt Opposition, at 3 citing Chien v. Drug Enft Admin., 533 F.3d 828, 835 D.C.
Cir. 2008 quoting Morall, 412 F.3d at 177. The Governments Opposition states that an Agencys 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 Agencys decision. Govt Opposition, at 34
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 ShoppeJonesborough, Motion to Stay Denial, 73
FR 3997, 3998 2008.
Regarding whether Petitioners 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 Petitioners 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 Commn, 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, 910 1942.
In 2009, the Supreme Court provided the legal standard applicable to Petitioners Motion to Stay. Nken v.
Holder, 556 U.S. 418 2009. According to Nken, four factors guide a courts exercise of discretion to stay enforcement of an order pending
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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 43334. 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 Petitioners Motion to Stay Having analyzed the Motion to Stay, the Governments 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 43334.
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 Courts review of my Decision/
Order.2 The OSC at issue, dated April 12, 2017, and the adjudication of that OSC concern Petitioners unlawful and allegedly unlawful acts during a specified period before April 12, 2017.
As such, Petitioners 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 sevenyear 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.
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 MOAs terms.

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