                                                          [DO NOT PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                       MARCH 11, 2008
                                                     THOMAS K. KAHN
                               No. 07-13283
                                                          CLERK
                           Non-Argument Calendar
                         ________________________

                   D. C. Docket No. 06-02063-CV-T-17-TBM

IPHARMACY.MD,
TERRY L. BUTLER,


                                                     Plaintiffs-Appellants,

                                    versus

MICHAEL B. MUKASEY,
Attorney General of the United States, sued in his
official capacity,
KAREN P. TANDY,
Administrator, Drug Enforcement Administration,
sued in her official capacity,
MARK W. EVERSON,
Commissioner of the Internal Revenue Service, sued
in his official capacity,
ROBERT E. O’NEILL,
United States Attorney for the Middle
District of Florida, sued in his official
capacity,


                                                     Defendants-Appellees.
                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                 (March 11, 2008)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Terry Butler and Ipharmacy appeal the dismissal of their complaint for lack

of jurisdiction. The district court concluded that their complaint is not ripe. We

affirm.

                                I. BACKGROUND

      Butler is the owner of Ipharmacy, which sold products, including controlled

substances, on-line. In 2005, the United States Attorney for the Middle District of

Florida filed a complaint for civil forfeiture of property that Butler and Ipharmacy

owned. The property was seized. In March 2007, the civil forfeiture proceeding

was stayed pending the resolution of a criminal investigation.

      On October 27, 2006, Butler filed a complaint for a declaratory judgment, 28

U.S.C. § 2201(a), that the defendants cannot prohibit a legitimate doctor-patient

relationship without a face-to-face meeting and the defendants cannot interfere

with the “operation of legitimate electronic commerce in pharmaceuticals.” The



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complaint also sought an injunction to bar the defendants from interfering with

Ipharmacy and the return of the assets and documents seized in the civil forfeiture

proceeding.

      The complaint contends that the practices of Ipharmacy comply with the

federal law that regulates the prescription of controlled substances. “Congress

devised a closed regulatory system making it unlawful to . . . distribute, dispense,

or possess any controlled substance except in a manner authorized by the

[Controlled Substances Act].” Gonzales v. Raich, 545 U.S. 1, 13, 125 S. Ct. 2195,

2203 (2005) (citing 21 U.S.C. §§ 841(a)(1), 844(a)). “A prescription for a

controlled substance to be effective must be issued for a legitimate medical

purpose by an individual practitioner acting in the usual course of his professional

practice.” 21 C.F.R. § 1306.04(a).

      In 2001, the Drug Enforcement Administration issued written guidance that

“a bona fide doctor/patient relationship” is required to comply with the Act.

Dispensing and Purchasing Controlled Substances over the Internet, 66 Fed. Reg.

21,181, at 12,182 (Apr. 27, 2001). The guidance stated that, under the laws of

many states, the completion of a questionnaire reviewed by a doctor without face-

to-face contact with a patient is not sufficient to establish a doctor-patient

relationship. Id. at 12,183. The Administration has clarified that its guidance



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reflects its understanding of “state laws and existing professional standards,” which

govern doctor-patient relationships. Kamir Garces-Mejias, M.D., Revocation of

Registration, 72 Fed. Reg. 54,931, at 54,935 n.4 (Sept. 27, 2007).

      The district court dismissed the complaint for lack of jurisdiction. The

district court concluded that the dispute was not ripe and there was no final agency

action for review. The district court also concluded that Butler could not

collaterally challenge the civil forfeiture proceeding.

                           II. STANDARD OF REVIEW

      We review challenges to subject matter jurisdiction de novo. Elend v.

Basham, 471 F.3d 1199, 1204 (11th Cir. 2006).

                                 III. DISCUSSION

      The jurisdiction of federal courts is limited by the requirement of the

Constitution that federal courts consider only “cases” and “controversies.” U.S.

Const. Art. III, § 2. “The ripeness doctrine is ‘drawn both from Article III

limitations on judicial power and from prudential reasons for refusing to exercise

jurisdiction.’” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808,

123 S. Ct. 2026, 2030 (2003) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S.

43, 57 n.18, 113 S. Ct. 2485, 2495 n.18 (1993)). This doctrine allows us to avoid

“‘entangling ourselves in abstract disagreements,’ and also to shield agencies from



                                           4
judicial interaction ‘until an administrative decision has been formalized and its

effects felt in a concrete way by the challenging parties.’” Konikov v. Orange

County, Fla., 410 F.3d 1317, 1322 (2005) (quoting Abbot Labs. v. Gardner, 387

U.S. 136, 148–49, 87 S. Ct. 1507, 1515 (1967)).

      Whether a claim is ripe depends on “1) whether the issues are fit for judicial

decision and 2) the hardship to the parties of withholding court consideration.” Id.

One consideration for determining whether a challenge to an agency action is ripe

is whether that action is “final.” Atlanta Gas Light Co. v. Fed. Energy Regulatory

Comm’n, 140 F.3d 1392, 1404 (11th Cir. 1998). The district court concluded the

complaint of Butler and Ipharmacy was not ripe, because it did not concern a final

action of the Drug Enforcement Administration.

      We agree with the district court that the complaint does not concern a ripe

controversy. An agency action can be final only if it “affects the legal rights and

obligations of the parties.” Tenn. Valley Auth. v. Whitman, 336 F.3d 1236, 1248

(11th Cir. 2003). The guidance issued in 2001 by the Administration that clarified

its understanding of state law creates no legal obligation, and the decision of an

agency to investigate someone does not affect that person’s legal rights, see Sec.

Exch. Comm’n v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742, 104 S. Ct. 2720, 2725

(1984). Because the Administration has made no final decision regarding how it



                                           5
will interpret the Controlled Substances Act, we conclude that a challenge to a

possible future interpretation is not ripe. Any challenge to future investigations by

the Drug Enforcement Administration also is not ripe. Ipharmacy and Butler also

offer no authority for a collateral attack of a pending civil forfeiture action.

      The dismissal of the complaint is AFFIRMED.




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