In Search Of (ISO) Court in Which to Challenge DEA ISO? The D.C. Circuit May Have an Answer for You

By JP Ellison –

Traditionally, challenges to a Drug Enforcement Administration (“DEA”) immediate suspension order (“ISO”) have been litigated, in the first instance, in federal district courts.  This is true even when the physician, pharmacy, distributor, wholesaler or other DEA registrant has taken a “belt and suspenders” approach and filed challenges in both the district court and court of appeals.  In those “dual filing” scenarios, the district court has generally scheduled a temporary restraining order and/or preliminary injunction hearing and addressed the merits before a court of appeals waded into the issue.  The parties, once engaged at the district court level have litigated the issues there, and have sought meaningful relief from a court of appeals—if at all—only on appeal of the district court’s decision.

On August 31, 2012, the D.C. Circuit asked for supplemental briefing on the question of whether Controlled Substance Act permitted the traditional practice of judicial review of ISOs in the district court.  Specifically, the court pointed to its prior decision in Doe v. DEA, 484 F.3d 561 (D.C. Cir. 2007).  While the Doe case did not involve an ISO, the court’s reasoning in that case suggested that the court might have difficulty with an argument that an ISO was “final” for purposes of review under the Administrative Procedure Act (“APA”), but not final under the CSA, which vests jurisdiction for all “final determinations” solely in the courts of appeal.  See 21 U.S.C. § 877.

The parties’ September 7th supplemental briefs took diverging views on the question.  The government took the position (see here) that review of an ISO in the district court was proper.  At oral argument, the government further refined its argument, noting that under the APA, judicial review is available for both “[a]gency action made reviewable by statute and final agency action.”  5 U.S.C. §704.  The government noted that section 824(d) plainly authorized judicial review of the ISO and suggested that review in the district court could lie under the “reviewable by statute” prong of section 704 of the APA.  The appellants argued (see here) that the CSA dictated that the courts of appeals have exclusive jurisdiction.  

At oral argument on September 12th (before Judges Tatel, Henderson and Williams), the comments of Judge Williams, who seemed the most interested in the jurisdictional issue, suggested that he saw practical advantages to jurisdiction lying in the district court, but viewed the statutory language as potentially constraining the courts ability to conclude that the district courts had jurisdiction.

We will continue to follow this issue to see whether the circuit court’s decision—which we would expect later this year—provides litigants with guidance on whether a party facing an ISO should file in the district court or the court of appeals.  In the interim, as DEA continues to issue ISOs, those served with an ISO will remain in search of  (“ISO”) the right court in which to bring a challenge.