Before: MARTIN and JONES, Circuit Judges; BELL, District Judge. *fn*
Pursuant to Sixth Circuit Rule 24
ELECTRONIC CITATION: 1996 FED App. 0059P (6th Cir.)
On Petition to Review a Decision of the Drug Enforcement Administration
Decided and Filed February 22, 1996
Before this panel of the court is petitioners' appeal from the United States Drug Enforcement Administration's (DEA) denial of a request for an employment waiver for a pharmacist previously convicted of a controlled substance-related felony. For the reasons that follow, we affirm.
Henry Bzdzuich (Bzdzuich) was licensed as a pharmacist in the State of Michigan in 1964. He worked at a pharmacy in Detroit owned by Jacob Schiff and his son Richard (Schiff) for 15 years. In 1982, he left Schiff to be the manager and 20 percent owner of a "Unarex" pharmacy. In 1987, pharmacists from 30 "Unarex" pharmacies were indicted for conspiracy to defraud insurance companies and divert controlled substances for profit. In 1988, Bzdzuich pled guilty to one count of racketeering activity (specifically, two instances of distribution of Preludin, a Schedule II controlled substance, outside the course of legitimate medical practice). Pursuant to this plea, he agreed to relinquish his pharmacy license. Bzdzuich received a four year prison sentence.
In 1993, the Michigan State Board of Pharmacy reinstated Bzdzuich's pharmacy license on the condition that he practice pharmacy under the personal supervision of a licensed pharmacist for 6 months, followed with one year of general supervision by a licensed pharmacist. Richard Schiff (Schiff), a licensed pharmacist for whom Bzdzuich had previously been employed, offered Bzdzuich employment. Pursuant to 21 C.F.R. 1301.76(a), however, he could not employ Bzdzuich because of his controlled substance-related felonies.
On April 28, 1993, Schiff made an application for a waiver of the foregoing regulation. The DEA denied the application on October 25, 1993. Schiff filed for reconsideration on November 4, 1993, which was, again, denied on February 3, 1994. Before the foregoing denial, on January 17, 1994, Schiff sent in another application for a waiver. On October 11, 1994, the DEA sent a letter to Schiff denying the request for a waiver on the basis that insufficient time had elapsed since the conviction. Schiff and Bzdzuich filed this petition for review on November 10, 1994.
Petitioners raise three issues for our review: whether (1) the DEA's denial of Schiff's application for an employment waiver was supported by substantial evidence; (2) the DEA deprived Bzdzuich of liberty or property without due process of law; and (3) the regulations relied on by the DEA in denying petitioners' application for a waiver provided adequate warning of the standards to be used for such evaluations.
Under 21 U.S.C. Section(s) 823(b), distributors of controlled substances must be registered by the Attorney General. The regulations for registration are contained in 21 C.F.R. Part 1300. These regulations provide that a registrant shall not employ any person who has been convicted of a felony relating to controlled substances. 21 C.F.R. 1301.76(a). The DEA, however, has a practice of waiving this ...