Irwin August, D.O.; Decision and Order, 3158-3159 [2016-00895]

Download as PDF tkelley on DSK4VPTVN1PROD with NOTICES 3158 Federal Register / Vol. 81, No. 12 / Wednesday, January 20, 2016 / Notices representative consumer organizations have the right to appear as parties in Commission antidumping duty and countervailing duty investigations. The Secretary will prepare a public service list containing the names and addresses of all persons, or their representatives, who are parties to these investigations upon the expiration of the period for filing entries of appearance. Limited disclosure of business proprietary information (BPI) under an administrative protective order (APO) and BPI service list.—Pursuant to section 207.7(a) of the Commission’s rules, the Secretary will make BPI gathered in these investigations available to authorized applicants representing interested parties (as defined in 19 U.S.C. 1677(9)) who are parties to the investigations under the APO issued in the investigations, provided that the application is made not later than seven days after the publication of this notice in the Federal Register. A separate service list will be maintained by the Secretary for those parties authorized to receive BPI under the APO. Conference.—The Commission’s Director of Investigations has scheduled a conference in connection with these investigations for 9:30 a.m. on February 3, 2016, at the U.S. International Trade Commission Building, 500 E Street SW., Washington, DC. Requests to appear at the conference should be emailed to William.bishop@usitc.gov and Sharon.bellamy@usitc.gov (DO NOT FILE ON EDIS) on or before February 1, 2016. Parties in support of the imposition of countervailing and antidumping duties in these investigations and parties in opposition to the imposition of such duties will each be collectively allocated one hour within which to make an oral presentation at the conference. A nonparty who has testimony that may aid the Commission’s deliberations may request permission to present a short statement at the conference. Written submissions.—As provided in sections 201.8 and 207.15 of the Commission’s rules, any person may submit to the Commission on or before February 8, 2016, a written brief containing information and arguments pertinent to the subject matter of the investigations. Parties may file written testimony in connection with their presentation at the conference. If briefs or written testimony contain BPI, they must conform with the requirements of sections 201.6, 207.3, and 207.7 of the Commission’s rules. Please consult the Commission’s rules, as amended, 76 FR 61937 (Oct. 6, 2011) and the Commission’s Handbook on Filing VerDate Sep<11>2014 18:12 Jan 19, 2016 Jkt 238001 Procedures, 76 FR 62092 (Oct. 6, 2011), available on the Commission’s Web site at https://edis.usitc.gov. In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service. Authority: These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission’s rules. By order of the Commission. Issued: January 13, 2016. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2016–00931 Filed 1–19–16; 8:45 am] BILLING CODE 7020–02–P Drug Enforcement Administration [Docket No. 16–4] Irwin August, D.O.; Decision and Order On November 6, 2015, Administrative Law Judge Charles Wm. Dorman (ALJ) issued the attached Recommended Decision (R.D.).1 Therein, the ALJ found that it is undisputed that Respondent’s Connecticut Controlled Substance Registration is suspended, thus rendering him without authority to dispense controlled substances in Connecticut, the State in which he holds DEA Registration FA3033002. R.D. at 4. The ALJ also found that, by virtue of the Voluntary Agreement Not to Practice Medicine which Respondent entered into with the Massachusetts Board of Registration in Medicine, he is also currently without authority to dispense controlled substances in that State, where he holds DEA Registration BA4089721. Id. The ALJ thus granted the Government’s Motion for Summary Disposition and recommended that I revoke both of Respondent’s registrations and deny any pending applications. Neither party filed exceptions to the Recommended Decision. Having reviewed the record, I adopt the ALJ’s factual findings that Respondent’s Connecticut Controlled Substance Registration has been suspended and that he has entered into the Voluntary 1 All citations to the Recommended Decision are to the slip opinion issued by the ALJ. Frm 00065 Fmt 4703 Sfmt 4703 Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificates of Registration BA4089721 and FA3033002 issued to Irwin August, D.O., be, and they hereby are, revoked. I further order that any pending application of Irwin August, D.O., to renew or modify either of the above registrations, be, and it hereby is, denied. This Order is effective February 19, 2016. Dated: January 8, 2016. Chuck Rosenberg, Acting Administrator. DEPARTMENT OF JUSTICE PO 00000 Agreement with the Massachusetts Board. I also adopt the ALJ’s legal conclusions that Respondent currently lacks authority to dispense controlled substances in each State.2 Accordingly, I will also adopt the ALJ’s recommendation that I revoke both registrations and deny any pending applications to renew or modify each registration. W. Brian Bayly, Esq., for the Government. John J. Tierney, Esq., for the Respondent. Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision Charles Wm. Dorman, Administrative Law Judge. The Deputy Assistant Administrator, Drug Enforcement Administration (‘‘DEA’’ or ‘‘Government’’), issued an Order to Show Cause (‘‘OSC’’), seeking to revoke the DEA Certificates of Registration (‘‘CORs’’) of Irwin August, D.O. (‘‘Respondent’’), pursuant to 21 U.S.C. 824(a)(3), and deny any pending applications for renewal or modification of the CORs, pursuant to 21 U.S.C. 823(f). The Government alleged that the Respondent lacks state authority to handle controlled substances in Massachusetts and Connecticut, where DEA CORs Numbers BA4089721 and FA3033002, respectively, are registered. OSC at 2. The Respondent filed a timely Request for Hearing. Therein, the Respondent did not discuss the voluntary suspension of his Massachusetts license. However, he did allege that his Connecticut license may be restored because the Connecticut Commissioner of Consumer Affairs currently is reviewing the suspension of his license. Req. for Hr’g at 1. 2 Respondent does not dispute the allegations that his DEA registration for his Massachusetts office does not expire until June 30, 2018 and that his DEA registration for his Connecticut office does not expire until June 30, 2017. Resp.’s Affirmation in Opp., at 1. Accordingly, I find that there is a live controversy with respect to both registrations. E:\FR\FM\20JAN1.SGM 20JAN1 Federal Register / Vol. 81, No. 12 / Wednesday, January 20, 2016 / Notices tkelley on DSK4VPTVN1PROD with NOTICES On October 27, 2015, the Government filed a Motion for Summary Disposition Based on Respondent’s Lack of State Authorization to Handle Controlled Substances and Submission of Evidence in Support of Such Motion (‘‘Motion for Summary Disposition’’). Therein, the Government argued that the Respondent currently lacks state authority in Massachusetts and Connecticut to handle controlled substances. Mot. for Summ. Disp. at 3. First, the Government argued that the Respondent voluntarily agreed with the Massachusetts Board of Registration in Medicine (‘‘Massachusetts Board’’) to refrain from practicing medicine. Mot. for Summ. Disp. at 2. Attached to the Government’s Motion is a copy of the Voluntary Agreement Not to Practice Medicine, entered into by the Respondent and the Massachusetts Board. Mot. for Summ. Disp. Ex. C, at 3–4. Second, the Government argued that the Respondent’s Connecticut controlled substance registration was suspended because the Respondent made false statements in his renewal application. Mot. for Summ. Disp. at 2. Attached to the Government’s Motion is the Connecticut Department of Consumer Protection’s (‘‘CDCP’’) Order of Immediate Suspension of Controlled Substance Registration No. 22241. Mot. for Summ. Disp. Ex. D, at 1–2. On November 4, 2015, the Respondent’s counsel filed an Affirmation in Opposition (‘‘Respondent’s Reply’’). In his Reply, the Respondent’s counsel asserted that, although the Respondent’s Connecticut controlled substance registration currently is suspended, the CDCP conducted a hearing on September 17, 2015, regarding the suspension. Resp’t Reply at 1–2. The Respondent’s counsel asserted that the CDCP’s final decision may change his registration status. Resp’t Reply at 1–2, 7–8. The Respondent’s counsel also asserted that, although the Respondent signed an agreement not to practice in Massachusetts, that agreement was predicated on the suspension of the Respondent’s Rhode Island license, and that his Rhode Island license may be restored.3 Resp’t Reply at 4–5, 7. 3 The Respondent asserts that he entered a voluntary agreement suspending his Massachusetts license because his Rhode Island license was suspended. Resp’t Reply at 4–6. The Respondent also asserts that he requested a hearing on the suspension of his Rhode Island license, but has not challenged his Massachusetts license’s suspension. Req. for Hr’g at 1; Resp’t Reply at 7. This case, however, do not address any DEA registration to dispense controlled substances in Rhode Island. Thus, the status of the Respondent’s Rhode Island license is not considered here. See Brian Earl Cressman, M.D., 78 FR 12091, 12092 n.2 (2013) VerDate Sep<11>2014 18:12 Jan 19, 2016 Jkt 238001 In revocation cases, the Government has the burden of proving that the requirements for revocation are satisfied. 21 CFR 1301.44(e) (2015). The Government also bears the initial burden of production. If the Government makes a prima facie case for revocation, the burden of production shifts to the registrant to show that revocation is inappropriate. Morall v. DEA, 412 F.3d 165, 174 (D.C. Cir. 2005). To maintain a DEA registration, a practitioner must be currently authorized to handle controlled substances in the jurisdiction where he practices. See 21 U.S.C. 802(21), 823(f) (2012). A registrant must possess state authority to dispense controlled substances in order to obtain and maintain DEA registration. E.g., Serenity ´ Cafe, 77 FR 35027, 35028 (2012). Accordingly, the Controlled Substances Act ‘‘requires the revocation of a registration issued to a practitioner whose State license has been suspended or revoked.’’ Scott Sandarg, D.M.D., 74 FR 17528, 17529 (2009). The Respondent argues that his COR should not be revoked because the CDCP may restore his Connecticut registration. However, ‘‘it does not matter whether the suspension . . . [is] pending the outcome of a state proceeding. Rather, what matters—as DEA has repeatedly held—is whether Respondent is without authority under [state] law to dispense a controlled substance.’’ Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007); see also Grider Drug #1 & Grider Drug #2, 77 FR 44069, 44104 n.97 (2012). The Respondent requested a stay of these proceedings until the CDCP reaches a final decision regarding his Connecticut registration. Req. for Hr’g at 2; Resp’t Reply at 8. This Agency routinely denies ‘‘requests to stay the issuance of a final order of revocation . . . [because] a practitioner must be currently authorized to handle controlled substances . . . to maintain [his] DEA registration.’’ Gregory F. Saric, M.D., 76 FR 16821 (2011) (emphasis added) (internal quotations and citations omitted). Because evaluating ‘‘whether Respondent’s state license will be re-instated is entirely speculative,’’ id., ‘‘[i]t is not DEA’s policy to stay proceedings . . . while registrants litigate in other forums.’’ Newcare Home Health Servs., 72 FR 42126, 42127 n.2 (2007) (citing Bourne Pharmacy, 72 FR at 18273; Oakland Med. Pharmacy, 71 FR 50100 (2006); (noting that ‘‘a registrant’s controlled substance privileges in a state outside the state of his DEA registration [are] irrelevant’’) (citing Shahid Musud Siddiqui, M.D., 61 FR 14818 (1996)). PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 3159 Kennard Kobrin, M.D., 70 FR 33199 (2005)). Therefore, the Respondent’s request to stay the proceedings pending the CDCP’s final decision is denied. The disposition of the Government’s Motion depends on whether the Respondent possesses state authority to handle controlled substances. The administrative record establishes that he does not. The CDCP’s Order of Immediate Suspension of Controlled Substance Registration No. 22241 establishes that his Connecticut controlled substances registration currently is suspended. Accordingly, the Respondent lacks authorization to handle controlled substances in Connecticut, where DEA COR Number FA3033002 is registered. Additionally, the Massachusetts Voluntary Agreement Not to Practice Medicine establishes that the Respondent currently lacks authorization to handle controlled substances in Massachusetts, where DEA COR Number BA4089721 is registered. Where there is no genuine question of fact, or there is agreement upon the material facts, a plenary, adversarial hearing is not required. See, e.g., Jesus R. Juarez, M.D., 62 FR 14945 (1997). Thus, summary disposition is warranted here because ‘‘there is no factual dispute of substance.’’ See Veg-Mix, Inc., 832 F.2d 601, 607 (D.C. Cir. 1987). As of the date of this Recommended Decision, the Respondent currently lacks state authority to handle controlled substances in both Connecticut and Massachusetts; therefore, he cannot maintain his DEA registrations. The Government’s Motion for Summary Disposition is granted, and it is recommended that the Respondent’s DEA registrations be revoked and any pending applications for renewal be denied. Dated: November 6, 2015 Charles Wm. Dorman, Administrative Law Judge. [FR Doc. 2016–00895 Filed 1–19–16; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE [OMB Number 1110–0011] Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Previously Approved Collection Federal Bureau of Investigation, Department of Justice Violent Criminal Apprehension Program (ViCAP). ACTION: 60-day notice. AGENCY: E:\FR\FM\20JAN1.SGM 20JAN1

Agencies

[Federal Register Volume 81, Number 12 (Wednesday, January 20, 2016)]
[Notices]
[Pages 3158-3159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00895]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 16-4]


Irwin August, D.O.; Decision and Order

    On November 6, 2015, Administrative Law Judge Charles Wm. Dorman 
(ALJ) issued the attached Recommended Decision (R.D.).\1\ Therein, the 
ALJ found that it is undisputed that Respondent's Connecticut 
Controlled Substance Registration is suspended, thus rendering him 
without authority to dispense controlled substances in Connecticut, the 
State in which he holds DEA Registration FA3033002. R.D. at 4. The ALJ 
also found that, by virtue of the Voluntary Agreement Not to Practice 
Medicine which Respondent entered into with the Massachusetts Board of 
Registration in Medicine, he is also currently without authority to 
dispense controlled substances in that State, where he holds DEA 
Registration BA4089721. Id. The ALJ thus granted the Government's 
Motion for Summary Disposition and recommended that I revoke both of 
Respondent's registrations and deny any pending applications.
---------------------------------------------------------------------------

    \1\ All citations to the Recommended Decision are to the slip 
opinion issued by the ALJ.
---------------------------------------------------------------------------

    Neither party filed exceptions to the Recommended Decision. Having 
reviewed the record, I adopt the ALJ's factual findings that 
Respondent's Connecticut Controlled Substance Registration has been 
suspended and that he has entered into the Voluntary Agreement with the 
Massachusetts Board. I also adopt the ALJ's legal conclusions that 
Respondent currently lacks authority to dispense controlled substances 
in each State.\2\ Accordingly, I will also adopt the ALJ's 
recommendation that I revoke both registrations and deny any pending 
applications to renew or modify each registration.
---------------------------------------------------------------------------

    \2\ Respondent does not dispute the allegations that his DEA 
registration for his Massachusetts office does not expire until June 
30, 2018 and that his DEA registration for his Connecticut office 
does not expire until June 30, 2017. Resp.'s Affirmation in Opp., at 
1. Accordingly, I find that there is a live controversy with respect 
to both registrations.
---------------------------------------------------------------------------

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificates of 
Registration BA4089721 and FA3033002 issued to Irwin August, D.O., be, 
and they hereby are, revoked. I further order that any pending 
application of Irwin August, D.O., to renew or modify either of the 
above registrations, be, and it hereby is, denied. This Order is 
effective February 19, 2016.

    Dated: January 8, 2016.
Chuck Rosenberg,
Acting Administrator.

    W. Brian Bayly, Esq., for the Government.
    John J. Tierney, Esq., for the Respondent.

Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision

    Charles Wm. Dorman, Administrative Law Judge. The Deputy Assistant 
Administrator, Drug Enforcement Administration (``DEA'' or 
``Government''), issued an Order to Show Cause (``OSC''), seeking to 
revoke the DEA Certificates of Registration (``CORs'') of Irwin August, 
D.O. (``Respondent''), pursuant to 21 U.S.C. 824(a)(3), and deny any 
pending applications for renewal or modification of the CORs, pursuant 
to 21 U.S.C. 823(f). The Government alleged that the Respondent lacks 
state authority to handle controlled substances in Massachusetts and 
Connecticut, where DEA CORs Numbers BA4089721 and FA3033002, 
respectively, are registered. OSC at 2.
    The Respondent filed a timely Request for Hearing. Therein, the 
Respondent did not discuss the voluntary suspension of his 
Massachusetts license. However, he did allege that his Connecticut 
license may be restored because the Connecticut Commissioner of 
Consumer Affairs currently is reviewing the suspension of his license. 
Req. for Hr'g at 1.

[[Page 3159]]

    On October 27, 2015, the Government filed a Motion for Summary 
Disposition Based on Respondent's Lack of State Authorization to Handle 
Controlled Substances and Submission of Evidence in Support of Such 
Motion (``Motion for Summary Disposition''). Therein, the Government 
argued that the Respondent currently lacks state authority in 
Massachusetts and Connecticut to handle controlled substances. Mot. for 
Summ. Disp. at 3. First, the Government argued that the Respondent 
voluntarily agreed with the Massachusetts Board of Registration in 
Medicine (``Massachusetts Board'') to refrain from practicing medicine. 
Mot. for Summ. Disp. at 2. Attached to the Government's Motion is a 
copy of the Voluntary Agreement Not to Practice Medicine, entered into 
by the Respondent and the Massachusetts Board. Mot. for Summ. Disp. Ex. 
C, at 3-4. Second, the Government argued that the Respondent's 
Connecticut controlled substance registration was suspended because the 
Respondent made false statements in his renewal application. Mot. for 
Summ. Disp. at 2. Attached to the Government's Motion is the 
Connecticut Department of Consumer Protection's (``CDCP'') Order of 
Immediate Suspension of Controlled Substance Registration No. 22241. 
Mot. for Summ. Disp. Ex. D, at 1-2.
    On November 4, 2015, the Respondent's counsel filed an Affirmation 
in Opposition (``Respondent's Reply''). In his Reply, the Respondent's 
counsel asserted that, although the Respondent's Connecticut controlled 
substance registration currently is suspended, the CDCP conducted a 
hearing on September 17, 2015, regarding the suspension. Resp't Reply 
at 1-2. The Respondent's counsel asserted that the CDCP's final 
decision may change his registration status. Resp't Reply at 1-2, 7-8. 
The Respondent's counsel also asserted that, although the Respondent 
signed an agreement not to practice in Massachusetts, that agreement 
was predicated on the suspension of the Respondent's Rhode Island 
license, and that his Rhode Island license may be restored.\3\ Resp't 
Reply at 4-5, 7.
---------------------------------------------------------------------------

    \3\ The Respondent asserts that he entered a voluntary agreement 
suspending his Massachusetts license because his Rhode Island 
license was suspended. Resp't Reply at 4-6. The Respondent also 
asserts that he requested a hearing on the suspension of his Rhode 
Island license, but has not challenged his Massachusetts license's 
suspension. Req. for Hr'g at 1; Resp't Reply at 7. This case, 
however, do not address any DEA registration to dispense controlled 
substances in Rhode Island. Thus, the status of the Respondent's 
Rhode Island license is not considered here. See Brian Earl 
Cressman, M.D., 78 FR 12091, 12092 n.2 (2013) (noting that ``a 
registrant's controlled substance privileges in a state outside the 
state of his DEA registration [are] irrelevant'') (citing Shahid 
Musud Siddiqui, M.D., 61 FR 14818 (1996)).
---------------------------------------------------------------------------

    In revocation cases, the Government has the burden of proving that 
the requirements for revocation are satisfied. 21 CFR 1301.44(e) 
(2015). The Government also bears the initial burden of production. If 
the Government makes a prima facie case for revocation, the burden of 
production shifts to the registrant to show that revocation is 
inappropriate. Morall v. DEA, 412 F.3d 165, 174 (D.C. Cir. 2005).
    To maintain a DEA registration, a practitioner must be currently 
authorized to handle controlled substances in the jurisdiction where he 
practices. See 21 U.S.C. 802(21), 823(f) (2012). A registrant must 
possess state authority to dispense controlled substances in order to 
obtain and maintain DEA registration. E.g., Serenity Caf[eacute], 77 FR 
35027, 35028 (2012). Accordingly, the Controlled Substances Act 
``requires the revocation of a registration issued to a practitioner 
whose State license has been suspended or revoked.'' Scott Sandarg, 
D.M.D., 74 FR 17528, 17529 (2009).
    The Respondent argues that his COR should not be revoked because 
the CDCP may restore his Connecticut registration. However, ``it does 
not matter whether the suspension . . . [is] pending the outcome of a 
state proceeding. Rather, what matters--as DEA has repeatedly held--is 
whether Respondent is without authority under [state] law to dispense a 
controlled substance.'' Bourne Pharmacy, Inc., 72 FR 18273, 18274 
(2007); see also Grider Drug #1 & Grider Drug #2, 77 FR 44069, 44104 
n.97 (2012).
    The Respondent requested a stay of these proceedings until the CDCP 
reaches a final decision regarding his Connecticut registration. Req. 
for Hr'g at 2; Resp't Reply at 8. This Agency routinely denies 
``requests to stay the issuance of a final order of revocation . . . 
[because] a practitioner must be currently authorized to handle 
controlled substances . . . to maintain [his] DEA registration.'' 
Gregory F. Saric, M.D., 76 FR 16821 (2011) (emphasis added) (internal 
quotations and citations omitted). Because evaluating ``whether 
Respondent's state license will be re-instated is entirely 
speculative,'' id., ``[i]t is not DEA's policy to stay proceedings . . 
. while registrants litigate in other forums.'' Newcare Home Health 
Servs., 72 FR 42126, 42127 n.2 (2007) (citing Bourne Pharmacy, 72 FR at 
18273; Oakland Med. Pharmacy, 71 FR 50100 (2006); Kennard Kobrin, M.D., 
70 FR 33199 (2005)). Therefore, the Respondent's request to stay the 
proceedings pending the CDCP's final decision is denied.
    The disposition of the Government's Motion depends on whether the 
Respondent possesses state authority to handle controlled substances. 
The administrative record establishes that he does not. The CDCP's 
Order of Immediate Suspension of Controlled Substance Registration No. 
22241 establishes that his Connecticut controlled substances 
registration currently is suspended. Accordingly, the Respondent lacks 
authorization to handle controlled substances in Connecticut, where DEA 
COR Number FA3033002 is registered. Additionally, the Massachusetts 
Voluntary Agreement Not to Practice Medicine establishes that the 
Respondent currently lacks authorization to handle controlled 
substances in Massachusetts, where DEA COR Number BA4089721 is 
registered.
    Where there is no genuine question of fact, or there is agreement 
upon the material facts, a plenary, adversarial hearing is not 
required. See, e.g., Jesus R. Juarez, M.D., 62 FR 14945 (1997). Thus, 
summary disposition is warranted here because ``there is no factual 
dispute of substance.'' See Veg-Mix, Inc., 832 F.2d 601, 607 (D.C. Cir. 
1987). As of the date of this Recommended Decision, the Respondent 
currently lacks state authority to handle controlled substances in both 
Connecticut and Massachusetts; therefore, he cannot maintain his DEA 
registrations. The Government's Motion for Summary Disposition is 
granted, and it is recommended that the Respondent's DEA registrations 
be revoked and any pending applications for renewal be denied.

    Dated: November 6, 2015
Charles Wm. Dorman,
Administrative Law Judge.
[FR Doc. 2016-00895 Filed 1-19-16; 8:45 am]
BILLING CODE 4410-09-P

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