Posted by Eugene Volokh:
Interesting Opinion About DEA's Revoking License to Distribute Sudafed-Like
Products:
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247180005
The [1]opinion in Novelty, Inc. v. DEA is dated June 22, but it seems
to have been released just a couple of days ago. There's a
particularly interesting dissent by Judge Janice Rogers Brown, which
begins:
Tellingly called poor man�s crack (especially telling, as crack is
already poor man�s cocaine), methamphetamine -- meth -- is a
national scourge....
But we don�t toss the law aside in our zeal to eradicate even an
obvious menace. The Deputy Administrator (DA) here has done just
that,[fn1] in the process crippling a successful enterprise and
costing many employees their jobs. In rejecting the ALJ�s
recommendation that Novelty be allowed to retain its registration,
the DA transforms a trivial violation of Novelty�s own rules into
an imminent danger to the public health and shifts the burden to
Novelty to explain why some of the thousands of convenience stores
it services are busier than others. Subject to this perverse
alchemy, ordinary business practices somehow provide proof of
rampant lawlessness. Thus, the DA (1) misreads a statute so any
place used for distribution is a �principal place of business,�
even a padlocked storage shed; (2) uses the average sales of every
convenience store serviced by Novelty as a proxy for legitimate
demand at each location without regard to any individual
characteristics; and (3) finds Novelty�s efforts to stay in
business after its registration was suspended to be proof of
villainy. Because �[t]he war on drugs is not an excuse to violate
the norms of fair play and evenhandedness,� United States v.
Cuellar, 478 F.3d 282, 307 (5th Cir. 2007) (en banc) (Smith, J.,
dissenting), rev�d 128 S. Ct. 1994 (2008), I respectfully
dissent....
[Footnote 1:] As the Administrative Law Judge (ALJ) perceptively
observed, no party �dispute[s] that illegal methamphetamine is a
major drug problem in the United States,� but the agency �seems to
be trying to remedy this problem by restricting or eliminating the
availability of such over-the-counter products by removing the
distributors of [these] products to convenience stores from the
market place� altogether, despite lacking sufficient record
evidence. In re Novelty Distrib., No. 08-33, slip op. at 93 (May
21, 2008) (Recommended Ruling of the Administrative Law Judge)
(�ALJ Ruling�).
An interesting issue that the court didn't squarely deal with (Judge
Henderson rejects it out of hand, but Judge Tatel simply concludes
that it's irrelevant to the license revocation dispute, and Judge
Brown doesn't address it) is whether the DEA investigators violated
the First Amendment by restraining "Novelty�s video and audio
recording of DEA investigators while they conducted their
investigation."
References
1. http://caselaw.findlaw.com/data2/circs/dc/081296p.pdf
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