Scott W. Houghton, M.D.; Decision and Order, 7182-7183 [2012-3057]

Download as PDF 7182 Federal Register / Vol. 77, No. 28 / Friday, February 10, 2012 / Notices INTERNATIONAL TRADE COMMISSION [USITC SE–12–004] Sunshine Act Meeting Notice United States International Trade Commission. TIME AND DATE: February 14, 2012 at 11:00 a.m. PLACE: Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205–2000. STATUS: Open to the public. AGENCY HOLDING THE MEETING: Matters To Be Considered 1. Agendas for future meetings: none. 2. Minutes. 3. Ratification List. 4. Vote in Inv. No. 731–TA–539–C (Third Review) (Uranium from Russia). The Commission is currently scheduled to transmit its determination and Commissioners’ opinions to the Secretary of Commerce on or before February 24, 2012. 5. Outstanding action jackets: None. In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting. By order of the Commission: Issued: February 7, 2012. James R. Holbein, Secretary to the Commission. [FR Doc. 2012–3238 Filed 2–8–12; 4:15 pm] BILLING CODE 7020–02–P DEPARTMENT OF JUSTICE srobinson on DSK4SPTVN1PROD with NOTICES Notice of Lodging of Consent Decree Under the Clean Water Act (‘‘CWA’’) Notice is hereby given that on February 6, 2012 a proposed Consent Decree (‘‘Decree’’) in United States v. Union Pacific Railroad Company (‘‘UP’’), Civil Action No. 1:12–cv– 00284–REB was lodged with the United States District Court for the District of Colorado. In this action the United States on behalf of the Environmental Protection Agency (‘‘EPA’’) filed a complaint against Union Pacific Railroad Company seeking permanent injunctive relief and civil penalties under the Clean Water Act (‘‘CWA’’), 33 U.S.C. 1251–1387, resulting from unauthorized discharge of oil and coal from railcars and locomotives it owned and operated in Colorado, Utah, and Wyoming into the waters of the United States or adjoining shorelines, the failure to comply with Spill Prevention, Control and Countermeasure (‘‘SPCC’’) and Facility VerDate Mar<15>2010 21:29 Feb 09, 2012 Jkt 226001 Response Plan (‘‘FRP’’) regulations issued under Section 311(j) of the CWA, 33 U.S.C. 1321(j), at railyards it owns and operates in the Colorado, Utah and Wyoming, and the failure to comply with CWA storm water discharge permits for railyards it owns and operates in Utah. The Decree requires that within sixty (60) days upon the Effective Date, the Defendant shall provide documentation to EPA demonstrating that the SPCC Plan deficiencies alleged in the Complaint have been corrected. It also requires Defendant to perform various compliance projects related to its SPCC violations at railyards in Colorado, Utah and Wyoming pursuant to an expeditious schedule. Defendant must also correct deficiencies in its FRP at the Rawlins, Wyoming railyard, and conduct monitoring at all railyards to ensure SPCC and FRP compliance. In addition, the Decree requires the Defendant to pay within thirty (30) days the sum of $1.5 million as a civil penalty, together with interest accruing from the date on which the Consent Decree is lodged with the court. The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044–7611, or emailed to pubcomment-ees.enrd@usdoj.gov. The comments should refer to United States v. Union Pacific Railroad Company, D.J. Ref. 90–5–1–1–09194. During the public comment period, the Decree may be examined on the following Department of Justice Web site: https://www.usdoj.gov/enrd/ Consent_Decree.html. A copy of the Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044–7611, or by faxing or emailing a request to ‘‘Consent Decree Copy’’ EESCDCopy.ENRD@USDOJ.gov, fax number 202–514–0097, phone confirmation number: 202–514–5271. If requesting a copy from the Consent Decree Library by mail, please enclose a check in the amount of $10.00 (.25 cents per page reproduction cost) payable to the U.S. Treasury or, if requesting by email or fax, please forward a check in that amount to the PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 Consent Decree Library at the address given above. Robert Brook, Assistant Section Chief, Environmental Enforcement Section, Environment and Natural Resources Division. [FR Doc. 2012–3092 Filed 2–9–12; 8:45 am] BILLING CODE 4410–15–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 12–09] Scott W. Houghton, M.D.; Decision and Order On November 4, 2011, Chief Administrative Law Judge (ALJ) John J. Mulrooney, II, issued the attached recommended decision. Neither party filed exceptions to the decision. Having reviewed the entire record, I have decided to adopt the ALJ’s rulings, findings of fact, conclusions of law, and recommended Order. 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 Certificate of Registration BH8796077, issued to Scott W. Houghton, M.D., be, and it hereby is, revoked. I further order that any pending application of Scott W. Houghton, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.1 Dated: February 1, 2012. Michele M. Leonhart, Administrator. Carrie Bland, Esq., for the Government. R. Cornelius Danaher, Jr., Esq., for the Respondent. Order Granting Summary Disposition and Recommended Decision Chief Administrative Law Judge John J. Mulrooney, II. The Deputy Assistant Administrator, Drug Enforcement Administration (DEA or Government), issued an Order to Show Cause (OSC), dated September 27, 2011, proposing to revoke the DEA Certificate of Registration (COR), Number BH8796077, Scott W. Houghton, M.D. (Respondent), pursuant to 21 U.S.C. § 824(a)(3) and (4) (2006). In the OSC, the Government alleges that Respondent is ‘‘currently without authority to handle controlled substances in the [s]tate of Connecticut,’’ and that, as such, Respondent’s continued registration is inconsistent with the public interest as that 1 Based on the State’s Immediate Suspension of Respondent’s Connecticut Controlled Substances Registration, I conclude that the public interest requires that this Order be effective immediately. 21 CFR 1316.67. E:\FR\FM\10FEN1.SGM 10FEN1 srobinson on DSK4SPTVN1PROD with NOTICES Federal Register / Vol. 77, No. 28 / Friday, February 10, 2012 / Notices term is used in 21 U.S.C. § 823(f) (2006 & Supp. III 2010).1 OSC at 1. On October 26, 2011, the Respondent, through counsel, timely filed a request for hearing coupled with a request for a continuance. An order issued that day which denied the Respondent’s continuance request and set a briefing schedule on the issue of whether he possessed state authority to possess controlled substances. The parties timely complied. On October 28, 2011, the Government filed a document styled ‘‘Government’s Motion for Summary Disposition’’ (Motion for Summary Disposition) and on November 4, 2011, the Respondent filed his reply (Respondent’s Reply). The Government’s Motion for Summary Disposition attached a copy of a February 3, 2010 Order of Immediate Suspension of Controlled Substance Registration (Suspension Order) issued by the Commissioner of the Connecticut Department of Consumer Protection, as well as an August 13, 2011 Interim Consent Order, executed by the Respondent and an official of the Connecticut Department of Health, which memorialized the former’s suspension and surrender of his state license to practice medicine. Both parties agree that the Respondent is currently without authorization to practice medicine and handle controlled substances in Connecticut, the jurisdiction where he holds the DEA COR that is the subject of this litigation. Although the Respondent does not contest the current status of his state license and lack of authorization to handle controlled substances, in his Reply, he has stresses his intention to contest these issues before the Connecticut authorities in the future. Reply at 2. The Controlled Substances Act (CSA) requires that a practitioner must be currently authorized to handle controlled substances in ‘‘the jurisdiction in which he practices’’ in order to maintain a DEA registration. See 21 U.S.C. § 802(21) (‘‘[t]he term ‘practitioner’ means a physician * * * licensed, registered, or otherwise permitted, by * * * the jurisdiction in which he practices * * * to distribute, dispense, [or] administer * * * a controlled substance in the course of professional practice’’); see also id. § 823(f) (‘‘The Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.’’). Therefore, because ‘‘possessing authority under state law to handle controlled substances is an essential condition for holding a DEA registration,’’ this Agency has consistently held that ‘‘the CSA requires the revocation of a registration issued to a practitioner who lacks [such authority].’’ Roy Chi Lung, 74 FR 20346, 20347 (2009); Scott Sandarg, D.M.D., 74 FR 17528, 174529 (2009); John B. Freitas, D.O., 74 FR 17524, 17525 (2009); Roger A. 1 Interestingly, lack of state authority is the only ground for which the Government’s charging document has supplied a factual basis. Beyond the issue of state authority, no factual basis has been included that would provide the Respondent with notice as to why his continued registration might be inconsistent with the public interest. VerDate Mar<15>2010 21:29 Feb 09, 2012 Jkt 226001 Rodriguez, M.D., 70 FR 33206, 33207 (2005); Stephen J. Graham, M.D., 69 FR 11661 (2004); Dominick A. Ricci, M.D., 58 FR 51104 (1993); Abraham A. Chaplan, M.D., 57 FR 55280 (1992); Bobby Watts, M.D., 53 FR 11919 (1988); see also Harrell E. Robinson, 74 FR 61370, 61375 (2009). In order to revoke a registrant’s DEA registration, the DEA has the burden of proving that the requirements for revocation are satisfied. 21 C.F.R. § 1301.44(e). Once DEA has made its prima facie case for revocation of the registrant’s DEA COR, the burden of production then shifts to the Respondent to show that, given the totality of the facts and circumstances in the record, revoking the registrant’s registration would not be appropriate. Morall v. DEA, 412 F.3d 165, 174 (DC Cir. 2005); Humphreys v. DEA, 96 F.3d 658, 661 (3d Cir. 1996); Shatz v. U.S. Dept. of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989); Thomas E. Johnston, 45 FR 72311 (1980). Regarding the Government’s motion, summary disposition of an administrative case is warranted where, as here, ‘‘there is no factual dispute of substance.’’ See Veg-Mix, Inc., 832 F.2d 601, 607 (DC Cir. 1987) (‘‘an agency may ordinarily dispense with a hearing when no genuine dispute exists’’). A summary disposition would likewise be warranted even if the period of suspension were temporary, or if there were (as he avers) the potential that Respondent’s state controlled substances privileges could be reinstated, because ‘‘revocation is also appropriate when a state license has been suspended, but with the possibility of future reinstatement,’’ Rodriguez, 70 FR at 33207 (citations omitted), and even where there is a judicial challenge to the state medical board action actively pending in the state courts. Michael G. Dolin, M.D., 65 FR 5661, 5662 (2000). It is well-settled that where no genuine question of fact is involved, or when the material facts are agreed upon, a plenary, adversarial administrative proceeding is not required, see Jesus R. Juarez, M.D., 62 FR 14945 (1997); Dominick A. Ricci, M.D., 58 FR 51104 (1993), under the rationale that Congress does not intend for administrative agencies to perform meaningless tasks. See Philip E. Kirk, M.D., 48 FR 32887 (1983), aff’d sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); see also Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994); NLRB v. Int’l Assoc. of Bridge, Structural & Ornamental Ironworkers, AFL– CIO, 549 F.2d 634 (9th Cir. 1977); United States v. Consol. Mines & Smelting Co., 455 F.2d 432, 453 (9th Cir. 1971). At this juncture, no genuine dispute exists over the established material fact that Respondent currently lacks state authority to handle controlled substances. Because the Respondent lacks such state authority, both the plain language of applicable federal statutory provisions and Agency interpretive precedent dictate that the Respondent is not entitled to maintain his DEA registration. Simply put, there is no contested factual matter adducible at a hearing that can provide me with authority to continue his entitlement to a COR under the circumstances. I therefore conclude that further delay in ruling on the Government’s PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 7183 motion for summary disposition is not warranted. See Gregory F. Saric, M.D., 76 FR 16821 (2011) (stay denied in the face of Respondent’s petition based on pending state administrative action wherein he was seeking reinstatement of state privileges). Accordingly, I hereby GRANT the Government’s Motion for Summary Disposition; DENY the Government’s Motion for Stay of Proceedings as moot; and further RECOMMEND that the Respondent’s DEA registration be REVOKED forthwith and any pending applications for renewal be DENIED. Dated: November 4, 2011. John J. Mulrooney, II, Chief Administrative Law Judge. [FR Doc. 2012–3057 Filed 2–9–12; 8:45 am] BILLING CODE 4410–09–P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Public Availability of the National Aeronautics and Space Administration FY 2011 Service Contract Inventory National Aeronautics and Space Administration. AGENCY: Notice of Public Availability of Analysis of the FY 2010 Service Contract Inventories and the FY 2011 Service Contract Inventories. ACTION: In accordance with Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111–117), National Aeronautics and Space Administration (NASA) is publishing this notice to advise the public of the availability of its analysis of FY 2010 Service Contract inventory and the FY 2011 Service Contract Inventory. This inventory provides information on service contract actions over $25,000 that were made in FY 2011. The information is organized by function to show how contracted resources are distributed throughout the agency. The inventory has been developed in accordance with guidance issued on December 19, 2011 by the Office of Management and Budget’s Office of Federal Procurement Policy (OFPP). NASA has posted its analysis of the FY 2010 inventory, the FY 2011 inventory and a summary of the FY 2011 inventory on the NASA Office of Procurement homepage at the following link: https://www.hq.nasa.gov/office/ procurement/scinventory/. SUMMARY: E:\FR\FM\10FEN1.SGM 10FEN1

Agencies

[Federal Register Volume 77, Number 28 (Friday, February 10, 2012)]
[Notices]
[Pages 7182-7183]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3057]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-09]


Scott W. Houghton, M.D.; Decision and Order

    On November 4, 2011, Chief Administrative Law Judge (ALJ) John J. 
Mulrooney, II, issued the attached recommended decision. Neither party 
filed exceptions to the decision. Having reviewed the entire record, I 
have decided to adopt the ALJ's rulings, findings of fact, conclusions 
of law, and recommended Order.

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 Certificate of 
Registration BH8796077, issued to Scott W. Houghton, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Scott W. Houghton, M.D., to renew or modify his registration, be, and 
it hereby is, denied. This Order is effective immediately.\1\
---------------------------------------------------------------------------

    \1\ Based on the State's Immediate Suspension of Respondent's 
Connecticut Controlled Substances Registration, I conclude that the 
public interest requires that this Order be effective immediately. 
21 CFR 1316.67.

    Dated: February 1, 2012.
Michele M. Leonhart,
Administrator.

Carrie Bland, Esq., for the Government.
R. Cornelius Danaher, Jr., Esq., for the Respondent.

Order Granting Summary Disposition and Recommended Decision

    Chief Administrative Law Judge John J. Mulrooney, II. The Deputy 
Assistant Administrator, Drug Enforcement Administration (DEA or 
Government), issued an Order to Show Cause (OSC), dated September 
27, 2011, proposing to revoke the DEA Certificate of Registration 
(COR), Number BH8796077, Scott W. Houghton, M.D. (Respondent), 
pursuant to 21 U.S.C. Sec.  824(a)(3) and (4) (2006). In the OSC, 
the Government alleges that Respondent is ``currently without 
authority to handle controlled substances in the [s]tate of 
Connecticut,'' and that, as such, Respondent's continued 
registration is inconsistent with the public interest as that

[[Page 7183]]

term is used in 21 U.S.C. Sec.  823(f) (2006 & Supp. III 2010).\1\ 
OSC at 1.
---------------------------------------------------------------------------

    \1\ Interestingly, lack of state authority is the only ground 
for which the Government's charging document has supplied a factual 
basis. Beyond the issue of state authority, no factual basis has 
been included that would provide the Respondent with notice as to 
why his continued registration might be inconsistent with the public 
interest.
---------------------------------------------------------------------------

    On October 26, 2011, the Respondent, through counsel, timely 
filed a request for hearing coupled with a request for a 
continuance. An order issued that day which denied the Respondent's 
continuance request and set a briefing schedule on the issue of 
whether he possessed state authority to possess controlled 
substances. The parties timely complied. On October 28, 2011, the 
Government filed a document styled ``Government's Motion for Summary 
Disposition'' (Motion for Summary Disposition) and on November 4, 
2011, the Respondent filed his reply (Respondent's Reply).
    The Government's Motion for Summary Disposition attached a copy 
of a February 3, 2010 Order of Immediate Suspension of Controlled 
Substance Registration (Suspension Order) issued by the Commissioner 
of the Connecticut Department of Consumer Protection, as well as an 
August 13, 2011 Interim Consent Order, executed by the Respondent 
and an official of the Connecticut Department of Health, which 
memorialized the former's suspension and surrender of his state 
license to practice medicine. Both parties agree that the Respondent 
is currently without authorization to practice medicine and handle 
controlled substances in Connecticut, the jurisdiction where he 
holds the DEA COR that is the subject of this litigation. Although 
the Respondent does not contest the current status of his state 
license and lack of authorization to handle controlled substances, 
in his Reply, he has stresses his intention to contest these issues 
before the Connecticut authorities in the future. Reply at 2.
    The Controlled Substances Act (CSA) requires that a practitioner 
must be currently authorized to handle controlled substances in 
``the jurisdiction in which he practices'' in order to maintain a 
DEA registration. See 21 U.S.C. Sec.  802(21) (``[t]he term 
`practitioner' means a physician * * * licensed, registered, or 
otherwise permitted, by * * * the jurisdiction in which he practices 
* * * to distribute, dispense, [or] administer * * * a controlled 
substance in the course of professional practice''); see also id. 
Sec.  823(f) (``The Attorney General shall register practitioners * 
* * if the applicant is authorized to dispense * * * controlled 
substances under the laws of the State in which he practices.''). 
Therefore, because ``possessing authority under state law to handle 
controlled substances is an essential condition for holding a DEA 
registration,'' this Agency has consistently held that ``the CSA 
requires the revocation of a registration issued to a practitioner 
who lacks [such authority].'' Roy Chi Lung, 74 FR 20346, 20347 
(2009); Scott Sandarg, D.M.D., 74 FR 17528, 174529 (2009); John B. 
Freitas, D.O., 74 FR 17524, 17525 (2009); Roger A. Rodriguez, M.D., 
70 FR 33206, 33207 (2005); Stephen J. Graham, M.D., 69 FR 11661 
(2004); Dominick A. Ricci, M.D., 58 FR 51104 (1993); Abraham A. 
Chaplan, M.D., 57 FR 55280 (1992); Bobby Watts, M.D., 53 FR 11919 
(1988); see also Harrell E. Robinson, 74 FR 61370, 61375 (2009).
    In order to revoke a registrant's DEA registration, the DEA has 
the burden of proving that the requirements for revocation are 
satisfied. 21 C.F.R. Sec.  1301.44(e). Once DEA has made its prima 
facie case for revocation of the registrant's DEA COR, the burden of 
production then shifts to the Respondent to show that, given the 
totality of the facts and circumstances in the record, revoking the 
registrant's registration would not be appropriate. Morall v. DEA, 
412 F.3d 165, 174 (DC Cir. 2005); Humphreys v. DEA, 96 F.3d 658, 661 
(3d Cir. 1996); Shatz v. U.S. Dept. of Justice, 873 F.2d 1089, 1091 
(8th Cir. 1989); Thomas E. Johnston, 45 FR 72311 (1980).
    Regarding the Government's motion, summary disposition of an 
administrative case is warranted where, as here, ``there is no 
factual dispute of substance.'' See Veg-Mix, Inc., 832 F.2d 601, 607 
(DC Cir. 1987) (``an agency may ordinarily dispense with a hearing 
when no genuine dispute exists''). A summary disposition would 
likewise be warranted even if the period of suspension were 
temporary, or if there were (as he avers) the potential that 
Respondent's state controlled substances privileges could be 
reinstated, because ``revocation is also appropriate when a state 
license has been suspended, but with the possibility of future 
reinstatement,'' Rodriguez, 70 FR at 33207 (citations omitted), and 
even where there is a judicial challenge to the state medical board 
action actively pending in the state courts. Michael G. Dolin, M.D., 
65 FR 5661, 5662 (2000). It is well-settled that where no genuine 
question of fact is involved, or when the material facts are agreed 
upon, a plenary, adversarial administrative proceeding is not 
required, see Jesus R. Juarez, M.D., 62 FR 14945 (1997); Dominick A. 
Ricci, M.D., 58 FR 51104 (1993), under the rationale that Congress 
does not intend for administrative agencies to perform meaningless 
tasks. See Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom. 
Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); see also Puerto Rico 
Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994); 
NLRB v. Int'l Assoc. of Bridge, Structural & Ornamental Ironworkers, 
AFL-CIO, 549 F.2d 634 (9th Cir. 1977); United States v. Consol. 
Mines & Smelting Co., 455 F.2d 432, 453 (9th Cir. 1971).
    At this juncture, no genuine dispute exists over the established 
material fact that Respondent currently lacks state authority to 
handle controlled substances. Because the Respondent lacks such 
state authority, both the plain language of applicable federal 
statutory provisions and Agency interpretive precedent dictate that 
the Respondent is not entitled to maintain his DEA registration. 
Simply put, there is no contested factual matter adducible at a 
hearing that can provide me with authority to continue his 
entitlement to a COR under the circumstances. I therefore conclude 
that further delay in ruling on the Government's motion for summary 
disposition is not warranted. See Gregory F. Saric, M.D., 76 FR 
16821 (2011) (stay denied in the face of Respondent's petition based 
on pending state administrative action wherein he was seeking 
reinstatement of state privileges).
    Accordingly, I hereby
    GRANT the Government's Motion for Summary Disposition;
    DENY the Government's Motion for Stay of Proceedings as moot;
    and further RECOMMEND that the Respondent's DEA registration be 
REVOKED forthwith and any pending applications for renewal be 
DENIED.

    Dated: November 4, 2011.

John J. Mulrooney, II,
Chief Administrative Law Judge.

[FR Doc. 2012-3057 Filed 2-9-12; 8:45 am]
BILLING CODE 4410-09-P

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