OpenJurist

43 F3d 1471 Cranston v. United States Drug Enforcement Administration

43 F.3d 1471

Jay Wheeler CRANSTON, M.D., Petitioner,
v.
UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Respondent.

No. 94-3933.

United States Court of Appeals, Sixth Circuit.

Nov. 10, 1994.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before: NORRIS and SUHRHEINRICH, Circuit Judges; and MILES, District Judge.*

ORDER

2

Petitioner seeks review of the decision of the United States Drug Enforcement Administration (the "DEA") revoking his certification to prescribe or dispense controlled substances. He moves for a stay of the implementation of the decision pending appeal. The DEA opposes the motion for a stay and moves to dismiss the appeal for lack of jurisdiction. Petitioner responds in opposition to the motion to dismiss.

3

On July 19, 1994, the DEA published in the Federal Register the decision revoking petitioner's certification of registration. The decision was made effective August 18, 1994. Petitioner filed his petition for review in this court on September 8, 1994. The time for filing a petition for review of an agency decision is governed by Rule 15(a), Fed.R.App.P., which provides that such petitions must be filed "within the time prescribed by law." Pursuant to 21 U.S.C. Sec. 877, the petition for review of the DEA decision was required to be filed with the court "within thirty days after notice of the decision." The publication of the DEA decision in the Federal Register constituted notice of the decision within the meaning of 21 U.S.C. Sec. 877. Nutt v. Drug Enforcement Administration, 916 F.2d 202, 203 (5th Cir.1990). The petition for review was not filed within thirty days of the July 19, 1994, publication and, consequently, the court lacks jurisdiction.

4

Petitioner's argument that the decision of the DEA cannot be considered a final decision until such time as it is effective is in error. See Nutt v. Drug Enforcement Administration, 916 F.2d at 205. Likewise, his assertion that the time for seeking review of an agency decision is governed by 28 U.S.C. Sec. 2107 and Rule 4(a), Fed.R.App.P., is erroneous. Section 2107 and Rule 4(a) apply to appeals from decision of the district courts. Moreover, Rule 20, Fed.R.App.P., provides that Rule 4 is not applicable to review or enforcement of agency decisions. Having determined that the court lacks jurisdiction, we do not address petitioner's motion for a stay.

5

It therefore is ORDERED that the motion to dismiss for lack of jurisdiction is granted and the motion for a stay is denied as moot.

*

The Honorable Wendell A. Miles, United States District Judge for the Western District of Michigan, sitting by designation