As I Sat in Court Watching the DEA

Gemi Spaulding v. Merrick Garland:  Reflections on Our Morning in The United States Court of Appeals for the DC Circuit

John Flannery’s opening statement to the court:

May it please the court, my name is John Flannery and it’s my privilege to represent these chronic pain patients.

The standard by which we measure a civilization is how we treat our own and by that standard we have done a miserable job, not just in this case, but in pain cases generally.

We don’t do anything to deal with the incalculable suffering that is foisted upon people, indeed by the careless act such as this one with Dr. Bockoff by which they suspended his license. They did it based on what a doctor, a hired gun, had said who had been found not to be credible in an Ohio Federal case. They did it based on extrapolating from five patients who basically didn’t have any serious charge about their treatment until the government was involved.

The DEA, by the administrator, suspended the license of Dr. Bockoff, a ban forcing him to abandon his patients on the spot even though abandonment is sanctioned in every state. The DEA did this. There was nothing the doctor could do about it. There was no notice or opportunity to be heard by the patients and as a result they were cast off to deal with things as they may.

My name is Kristen Ogden and I advocate for chronic pain patients.  My husband, Louis Ogden, is one of them; he has suffered from pain since he was a child.  Dr. Bockoff’s chronic pain patients have waited a long time for their day in court.

Oral Arguments for the Court of Appeals for the D.C. Circuit were scheduled to begin at 9:30 a.m. on the morning of Tuesday, January 23, 2024.  Louis and I drove to D.C. the evening before and checked into a hotel.  Our friend Anne Fuqua, chronic pain patient and long-time advocate, had let us know she had arrived in D.C. earlier in the afternoon on January 22.  No way any of us were going to be late for this!

Our Uber driver dropped me and Louis off at the E. Barrett Prettyman Federal Courthouse on Constitution Avenue at 8:44 a.m.  We got through security screening quickly and headed to the cafeteria for coffee and yogurt.  Anne came in a few minutes later and joined us at our table.  I think we all felt pretty excited to be there.

People use the word “awesome” to describe all kinds of things, some of which don’t really deserve that adjective.  To me, walking the halls and approaching Courtroom 31 where we were about to hear John Flannery, representing the Patient Intervenors, and Anita Gay, Dept. of Justice attorney representing DEA, was pretty awesome.  After all, this Court of Appeals is said by many to be the second most influential court in the United States … second only to the Supreme Court.

The gentleman guarding the door into the courtroom seemed a bit surprised to see us.  I think everyone else in attendance was an attorney or a law clerk.  I guess they don’t get many spectators at these events.  We were all dressed appropriately but we probably didn’t look like attorneys.  The gentleman at the door asked us to turn off our phones and show him that they were turned off (airplane mode was not acceptable) and told us where not to sit.  We complied with his instructions and told him we were Mr. Flannery’s clients and that he told us we should sit behind him.  Now satisfied, the gentleman motioned for us to enter.

The courtroom was surprisingly small, but again I guess not many spectators.  The picture that was posted on the Court’s website along with the live audio feed of the session, and later the recording, looked exactly like the room we were in so I’m guessing it was the one in the picture.

Exactly why had we come to Court on Tuesday, January 23, 2024?  The purpose of this Appeals Court session was for a 3-judge panel to hear oral arguments from our attorney, John P. Flannery, and the Dept. of Justice attorney, Anita Gay. Mr. Flannery had told us to expect the session to be very short, and that there would be no witnesses, just the 2 attorneys giving short statements and responding to any questions the judges may have had.  We were told it was unlikely that the Court would issue a decision on the spot, so we were not expecting to learn the outcome during the session.

After Louis’ pain specialist, David Bockoff, had his DEA registration suspended on the spot with no notice on Oct 25, 2022, we – a group of Dr. Bockoff’s patients and their spouses/families – decided we had had enough of being yanked around by DEA.  For many of us, this was not the first time we had lost our doctor due to DEA actions.  We hired John Flannery and he recommended that we file a Motion to Intervene in the case of DEA vs. David Bockoff.  We did so, and, as expected, the DEA Administrative Law Judge (ALJ) denied our motion. The next step available to us was to appeal the ALJ’s decision, so we did, and that’s what this session was about. There is legal precedent for “interested persons” to make a Motion to Intervene in a case in which they otherwise can’t participate.  Many have said it’s probably the first time a group of patients have gotten together and tried to fight back against DEA.

Some have asked how they can join our lawsuit.  It’s not exactly a lawsuit … it’s an effort by a group of people to intervene in a DEA case against Dr. Bockoff. All of the involved patients were Dr. Bockoff’s patients and were affected when his DEA registration was suddenly suspended with no warning. We’re trying to make the case that we have a substantial interest in the outcome of DEA vs. David Bockoff and should therefore be able to have our attorney speak for us in the matter.

Our goal here is to persuade the Court of Appeals to approve our Motion to Intervene and give us the opportunity for our attorney to speak on our behalf and participate fully in any further hearings involving DEA vs Dr. Bockoff. The way DEA runs the Administrative Law Court leaves patients with no voice in the situation, when their doctor is cut off without warning. The specific relief sought by Mr. Flannery on our behalf is that the Appeals Court throw out the DEA ALJ’s decision denying our Motion to Intervene, approve our Motion, and tell DEA to hold their hearing about Dr. Bockoff’s situation all over again with Mr. Flannery having full participation to represent our interests in what happens to Dr. Bockoff.

We hope the Appeals Court will decide in our favor.  If they don’t, we intend to continue our pursuit of justice and we hope that others will try this or other legal efforts.  It has become obvious to us that patients and families need to stand up and get involved to try to help their doctors who are being unfairly charged. If successful, this could help the doctor and his or her patients. Our effort to intervene started out as Rebecca Snyder vs. Merrick Garland.  Sadly, in June 2023, Rebecca Snyder passed away while we were waiting for our day in court.  This case is now referred to as Case#: 23-1007 Gemi Spaulding vs. Merrick Garland.  Rebecca Snyder and Gemi Spaulding were both patients of Dr. Bockoff, as were Louis Ogden, Anne Fuqua, and the 5 other Patient Intervenors actively seeking justice.

So what did the judges and the attorneys talk about?  Who are the judges anyway?  I’ll start by clarifying the composition of the panel. Some who listened to the live feed or recording mistakenly thought they were hearing one female voice from the bench and concluded that there was just one judge.  The first judge to speak was Judge Karen Henderson who called on John Flannery at the beginning.  She presided but didn’t say much at all, leaving the questioning to Judge Neomi Rao and Judge Cornelia Pillard.  If you are interested, you can find information about all the Appeals Court Judges on the Court website at cadc.uscourts.gov.

John Flannery kindly provided us a summary about the session, so here’s the bottom line up front: “We argued to a 3-judge panel of the DC Court of Appeals that chronic pain patients have a right to intervene in a closed DEA proceeding that cut off their pain medications; DEA argued we didn’t have that right.”  That’s it in a nutshell.

The substance of the conversation that took place among Judge Rao, Judge Pillard, and the attorneys touched on a number of key legal concepts.  Judge Rao asked the first question a couple of minutes into Mr. Flannery’s presentation.

As the informal spokesperson for the Intervenors, I have worked most closely with Mr. Flannery and have provided occasional updates to the group.  However, I have done so and share my comments here with the following disclaimer:  I am not an attorney and have no legal background.  I have done my best to provide accurate updates to Dr. Bockoff’s patients and I do the same now for others who may read this article.  I know there are many patients and advocates out there who are very interested in what’s happening with this case.  If you don’t understand all this legal terminology, join the club, but be advised that you can learn a fair amount by spending 15 minutes googling on your phone.

I thank you for your interest in our case and for having the patience to read this.  I will close by telling you a couple of things we’ve observed along the way and by sharing John Flannery’s closing statement.

Louis and I have observed that the DEA administrative law process seems very biased against doctors and pain patients.  Law-abiding citizens who have done nothing wrong, both doctors and patients, are treated by the process as though they are without a doubt drug-trafficking criminals.  How can it be other than biased when the investigators, the prosecutors, and the judge are all part of the same closed process?  Unless you find a way to take your concerns outside DEA to another element of our government with some kind of authority to make impartial decisions, for example, the Federal Appeals Courts, or the ability to act to improve our situation in some way, for example, the US Congress or the President of the United States, things are not likely to change for the better … at least not anytime soon.

Some have asked why we traveled to D.C. for a 30-minute meeting in which no decision was likely to be made.  My answer:  because in my experience as an advocate, sometimes you just need to show up … show up and keep showing up.  It was our way of making a silent statement.  It’s a small thing that can have an impact.  Some have said to me that the audio of the meeting left them feeling pessimistic about the pending decision.  I don’t feel that way.  It’s my view that it could go either way.  The judges asked several questions that pointed to the possibility of a favorable decision.  No matter how things turn out at this step, we don’t plan to give up.  I do believe we have made several small gains.  The Appeals Court accepted our appeal.  The Appeals Court ordered oral arguments so they could ask questions and hear more from the attorneys.  We were able to go to this high court and hear our issues being discussed.  These are small gains, but positive steps in the right direction.  Patients, spouses, family members, advocates, doctors, pharmacists:  All need to engage now in our common defense.  If we can find a way to try to make a difference, so can you.

John Flannery’s closing thoughts:

The final thing I would say your honor is that Dr. Bockoff is a doctor who heals. He does not deal. And that we are, by upholding the practice of this ALJ, we are sanctioning the disregard of patients who suffer, I mean really physically suffer, because of these proceedings that hide in the shadows and do what they may. Thank you for your time. I appreciate it and my clients do too.