United States District Court, W.D. Tennessee, Eastern Division
JOHN B. WOODS, M.D., and TOM MCDONALD, M.D., Plaintiffs,
UNITED STATES DRUG ENFORCEMENT AGENCY, LORETTA E. LYNCH, United States Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, and CHUCK ROSENBERG, Acting Administrator of the Drug Enforcement Agency, Defendants.
REPORT AND RECOMMENDATION
G. BRYANT UNITED STATES MAGISTRATE JUDGE
the Magistrate Judge on referral for a report and
recommendation is the Temporary Restraining Order of John
Woods, M.D. (“Dr. Woods”) and Tom McDonald, M.D.
(“Dr. McDonald”) pursuant to Federal Rule of
Civil Procedure 65. Drs. Woods and McDonald petition this
Court for entry of a Temporary Restraining Order enjoining
Respondents from prohibiting Dr. Woods and Dr. McDonald from
working at Henderson County Community Hospital
(“HCCH”) in Lexington, Tennessee, as hospitalists
while an employment waiver requested pursuant to 21 C.F.R.
§ 1301.76(a) is applied for and processed. A hearing on
this matter was held ex parte on November 15, 2016.
parte temporary restraining order may be requested by the
filing of a motion or complaint seeking such relief. W.D.
Tenn. Loc. R. 65.1. Courts examine four factors in deciding
whether a temporary restraining order is appropriate:
“(1) whether the movant has a “strong”
likelihood of success on the merits; (2) whether the movant
would otherwise suffer irreparable injury; (3) whether
issuance of [a TRO] would cause substantial harm to others;
and (4) whether the public interest would be served by
issuance of [a temporary restraining order].’”
Kendall Holdings, Ltd. v. Eden Cryogenics, LLC, 630
F.Supp.2d 853, 860 (S.D. Ohio 2008) (quoting Leary v.
Daeschner, 228 F.3d 729, 736 (6th Cir. 2000)); see
also Fed. R. Civ. P. 65.
the Magistrate Judge recommends a finding that the movants
have met the four factors listed. First, Drs. Woods and
McDonald have demonstrated that they have a strong likelihood
of success on the merits. The DEA knew of the waiver
requirement and Dr. Woods’s work at HCCH before Dr.
Woods began working at HCCH. Dr. Woods’s Declaration,
at ¶¶ 8-10. Yet, the DEA did not mention or require
any waiver before Dr. Woods began working at HCCH. Dr.
Woods’s Declaration, at ¶¶ 11-12. Thus,
despite Dr. Woods’s efforts to keep the DEA apprised of
his employment, at no point until November 10, 2016, did the
DEA inform HCCH or Dr. Woods of the need for a waiver and his
inability to work while the waiver was processed. Dr.
McDonald had been working at HCCH for approximately twelve
(12) years before the DEA began its enforcement of the
waiver. Dr. McDonald’s Declaration, at ¶ 11. Dr.
McDonald has had not continuing obligations with the DEA
since 2002. Id. at ¶¶ 8-9. Dr. McDonald
has renewed his DEA license every three years since 2002
without any problems or mention of a waiver. Id. at
¶ 10. At no time before November 10, 2016 did the DEA
inform Dr. McDonald or HCCH of the need for a waiver and Dr.
McDonald’s inability to work while the waiver was
processed. Id. at ¶¶ 12-13. Given this
passage of time (nineteen months for Dr. Woods and fourteen
years for Dr. McDonald), movants have demonstrated a strong
likelihood of success on the merits in their arguments that
the laches doctrine prohibits the DEA’s unreasonably
delayed enforcement of the waiver regulation; the DEA is
improperly applying a new rule retroactively; and the
DEA’s actions are arbitrary and capricious.
the movants have demonstrated that they would suffer
irreparable injury. More than seventy-five percent (75%) of
Dr. Woods’s income and all of Dr. McDonald’s
income comes from their respective work at HCCH. Dr.
Woods’s Declaration, at ¶ 13; Dr. McDonald’s
Declaration, at ¶ 15. Dr. Woods and Dr. McDonald’s
loss of income here is irreparable harm because Dr. Woods and
Dr. McDonald cannot recover damages. Feinerman v.
Bernardi, 558 F.Supp.2d 36, 51 (D.C.D.C. 2008)
(“But where, as here, the plaintiff in question cannot
recover damages from the defendant due to the
defendant’s sovereign immunity, any loss of income
suffered by the plaintiff is irreparable per
se.”); Caspar v. Snyder, 77 F.Supp.3d
616, 641 (E.D. Mich. 2015) (“Where the availability of
a money damage remedy is significantly in doubt because of an
immunity defense, money damages are not deemed an adequate
remedy, rendering the harm irreparable.”).Thus, Dr.
Woods’s and Dr. McDonald’s livelihoods are
substantially and irreparably harmed by the DEA’s
enforcement of this waiver requirement. Moreover, given the
nature of the small community of Lexington, Tennessee,
reputation damage and loss of patients may occur if the
doctors are prohibited from working during the time it takes
for this waiver to be applied for and processed.
the Magistrate Judge analyzes whether issuance of the TRO
would cause substantial harm to others. Given the
movants’ cooperation and good standing with the DEA to
date, the fact that both doctors are licensed and practicing
with full prescribing authority, and the passage of time and
retroactive nature of this waiver, the Magistrate Judge
cannot find that issuance of the TRO would cause substantial
harm to others. Indeed, not issuing the TRO would cause harm
to many, as Dr. Woods and Dr. McDonald are the only two
hospitalists at HCCH. Dr. Woods’s Declaration, at
¶ 14; Dr. McDonald’s Declaration, at ¶ 16.
While the doctors are waiting for processing of these
waivers, HCCH and the community of Henderson County are being
harmed because HCCH unexpectedly has no hospitalist to admit
and serve the needs of its patients. Dr. Woods’s
Declaration, at ¶ 14; Dr. McDonald’s Declaration,
at ¶ 16.
movants have demonstrated that public interest would be
served by issuance of this TRO. As stated above, the
DEA’s actions have resulted in HCCH unexpectedly having
no hospitalist to admit and serve its patients. Dr.
Woods’s Declaration, at ¶ 14; Dr. McDonald’s
Declaration, at ¶ 16. Thus, HCCH and the community HCCH
serves are harmed. Further, HCCH patients who are currently
being treated by Dr. Woods or Dr. McDonald will suffer
substantial harm in losing their physician. Thus, public
interest is served by issuing a TRO to allow movants to
continue to work at HCCH while their waiver is processed.
these reasons, the Magistrate Judge recommends that this
Court grant a temporary restraining order to prohibit
Respondents from preventing Dr. Woods and Dr. McDonald from
working at HCCH while the DEA processes their forthcoming
OBJECTIONS OR EXCEPTIONS TO THIS REPORT AND RECOMMENDATION
MUST BE FILED WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED
WITH A COPY OF THE REPORT AND RECOMMENDATION. 28 U.S.C.
§ 636(b)(1). FAILURE TO FILE THEM WITHIN FOURTEEN (14)