Richard H. NG, D.O.; Decision and Order, 29694-29696 [2012-12121]

Download as PDF 29694 Federal Register / Vol. 77, No. 97 / Friday, May 18, 2012 / Notices laws of the state in which he does business. See Scott Sandarg, D.M.D., 74 Fed. Reg. 17,528 (DEA 2009); David W. Wang, M.D., 72 Fed. Reg. 54,297 (DEA 2007); Sheran Arden Yeates, M.D., 71 Fed. Reg. 39,130 (DEA 2006); Dominick A. Ricci, M.D., 58 Fed. Reg. 51,104 (DEA 1993); Bobby Watts M.D., 53 Fed. Reg. 11,919 (DEA 1988). Summary disposition in a DEA revocation case is warranted even if the period of suspension of a respondent’s state medical license is temporary, or even if there is the potential for reinstatement of state authority because ‘‘revocation is also appropriate when a state license had been suspended, but with the possibility of future reinstatement.’’ Stuart A. Bergman, M.D., 70 Fed. Reg. 33,193 (DEA 2005); Roger A. Rodriguez, M.D., 70 Fed. Reg. 33,206 (DEA 2005). It is well-settled that when no question of fact is involved, or when the material facts are agreed upon, a plenary, adversarial administrative proceeding is not required, under the rationale that Congress does not intend administrative agencies to perform meaningless tasks. See Layfe Robert Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael G. Dolin, M.D., 65 Fed. Reg. 5661 (DEA 2000); see also Philip E. Kirk, M.D., 48 Fed. Reg. 32,887 (DEA 1983), aff’d sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984). Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994). In the instant case, the Government asserts, and Respondent concedes, that Respondent’s Indiana controlled substance registration is suspended. This allegation is confirmed by the January 3, 2012 letter from the Board to Respondent. I therefore find there is no genuine dispute as to any material fact, and that substantial evidence shows that Respondent is presently without state authority to handle controlled substances in Illinois. mstockstill on DSK4VPTVN1PROD with NOTICES B. Respondent’s Right to Due Process ‘‘[W]here the state has revoked a registrant’s license to handle controlled substances, summary revocation of the registrant’s DEA registration is only appropriate if the registrant will be afforded a state hearing on the merits of the state revocation or suspension.’’ Schultz, 76 Fed. Reg. at 78,697; cf. Odette Louise Campbell, M.D., No. 09– 62 (DEA May 11, 2010) (order remanding for further proceedings where it did not appear that state law provided registrant with opportunity to challenge merits of state suspension based solely upon DEA immediate suspension). VerDate Mar<15>2010 18:21 May 17, 2012 Jkt 226001 In the present case, the Board suspended Respondent’s state controlled substance registration based upon Ind. Code § 35–48–3–5(e), which states: (e) If the Drug Enforcement Administration terminates, denies, suspends or revokes a federal registration for the manufacture, distribution, or dispensing of controlled substances, a registration issued by the board under this chapter is automatically suspended. Section 35–48–3–5(f) further provides, however, that ‘‘[t]he board may reinstate a registration that has been suspended under subsection (e), after a hearing, if the board is satisfied that the applicant is able to manufacture, distribute, or dispense controlled substances with reasonable skill and safety to the public * * *.’’ Thus, Respondent is entitled to a hearing to challenge the Board’s automatic suspension of his state controlled substance registration. Furthermore, not only has Respondent requested such a hearing, but he concedes that the Board has confirmed that he will be afforded such a hearing. Because Respondent is afforded adequate due process under state law, and because ‘‘DEA does not have statutory authority under the Controlled Substances Act to maintain a registration if the registrant is without state authority to handle controlled substances in the state in which he practices,’’ Sheran Arden Yeates, M.D., 71 Fed. Reg. 39,130, 39,131 (DEA 2006), I conclude that summary disposition is appropriate. See Kamal Tiwari, M.D., 76 Fed. Reg. 71,604 (DEA 2011) (summarily revoking the respondents’ DEA registrations for lack of state authority where the state summarily suspended the registrants’ state controlled substance registrations based upon DEA’s immediate suspension, noting that the registrants ‘‘are entitled to a hearing to challenge the underlying allegations before the State board’’). It is therefore ORDERED that the hearing in this case, scheduled to commence on February 21, 2012, is hereby CANCELLED; and it is further ORDERED that all proceedings before the undersigned are STAYED pending the Agency’s issuance of a final order. Recommended Decision I grant the Government’s Motion for Summary Disposition and recommend that Respondent’s DEA COR BR9738595 be revoked and any pending applications for renewal or modification be denied. PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 Dated: January 27, 2012 Timothy D. Wing, Administrative Law Judge. [FR Doc. 2012–12119 Filed 5–17–12; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 12–19] Richard H. NG, D.O.; Decision and Order On December 23, 2011, Administrative Law Judge (ALJ) Timothy D. Wing 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. To make clear, DEA’s longstanding rule that a practitioner may not hold a registration if he lacks authority under state law to dispense controlled substances and that the loss of such authority subjects a practitioner’s registration to revocation is not based solely on 21 U.S.C. 824(a)(3), which is a grant of authority to either suspend or revoke a registration ‘‘upon a finding’’ that a registrant ‘‘has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the * * * dispensing of controlled substances.’’ As explained in numerous cases, DEA’s rule derives primarily from two other provisions of the CSA, 21 U.S.C. 802(21), which defines the term ‘‘practitioner,’’ and 21 U.S.C. 823(f), which sets forth the requirements for obtaining a registration as a practitioner. More specifically, the CSA defines ‘‘the term ‘practitioner’ [to] mean [] a * * * physician * * * or other person 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.’’ 21 U.S.C. 802(21). Consistent with this definition, Congress, in setting the requirements for obtaining a practitioner’s registration, provided that ‘‘[t]he Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.’’ 21 U.S.C. 823(f). Accordingly, because one cannot obtain a practitioner’s registration unless one holds authority under state law to dispense controlled substances, and because where a E:\FR\FM\18MYN1.SGM 18MYN1 Federal Register / Vol. 77, No. 97 / Friday, May 18, 2012 / Notices registered practitioner’s state authority has been revoked or suspended, the practitioner no longer meets the statutory definition of a practitioner, DEA has repeatedly held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for both obtaining and maintaining a practitioner’s registration. See ALJ at 4 (citing cases).1 So too, ‘‘revocation is warranted even where a practitioner’s state authority has been summarily suspended and the State has yet to provide the practitioner with a hearing to challenge the State’s action at which he may ultimately prevail.’’ Kamal Tiwari, M.D., 76 FR 71604, 71606 (2011); see also Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne Lazar Thorn, 62 FR 12847 (1997). Accordingly, I adopt the ALJ’s 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 AN1255733, issued to Richard H. Ng, D.O., be, and it hereby is, revoked. I further order that any pending application of Richard H. Ng, D.O., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.2 Dated: May 4, 2012. Michele M. Leonhart, Administrator. Jonathan P. Novak, Esq., for the Government Glen D. Crick, Esq., Lillian Walanka, Esq., Michael D. Monico, Esq., Jacqueline Jacobson, Esq., for the Respondent mstockstill on DSK4VPTVN1PROD with NOTICES Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of the Administrative Law Judge Timothy D. Wing, Administrative Law Judge. This proceeding is an adjudication governed by the Administrative Procedure Act, 5 U.S.C. 551 et seq., to determine whether a practitioner’s Certificate of Registration (COR) with the Drug Enforcement 1 This citation is to the slip opinion as issued by the ALJ. 2 The suspension order of the Illinois Department of Financial and Professional Regulation found that ‘‘the public interest, safety and welfare imperatively require emergency action’’ and that ‘‘Respondent’s actions constitute an imminent danger to the public.’’ Department of Fin. & Prof. Reg. v. Richard H. Ng, D.O., No. 2011–08881 (Ill. Dep’t of Fin. & Prof. Reg. Oct. 25, 2011) (order imposing temporary suspension). Accordingly, I likewise conclude that the public interest necessitates that this order be effective immediately. See 21 CFR 1316.67. VerDate Mar<15>2010 18:21 May 17, 2012 Jkt 226001 Administration (DEA, Government or Agency) should be revoked. Without this registration, Richard H. Ng, D.O. (Respondent) would be unable to lawfully possess, prescribe, dispense or otherwise handle controlled substances. I. Procedural Posture On November 18, 2011, the Deputy Assistant Administrator, DEA, issued an Order to Show Cause (OSC) to Respondent. The OCS provided notice to Respondent of an opportunity to show cause as to why the DEA should not revoke Respondent’s DEA COR AN1255733, pursuant to 21 U.S.C. 824(a)(3)-(4) and 823(f), alleging that Respondent’s continued registration is inconsistent with the public interest, as that term is used in 21 U.S.C. 823(f), and that Respondent’s medical license in the State of Illinois has been suspended. On December 20, 2011, I issued an Order for Statements Addressing Respondent’s State Authority and Order for Prehearing Statements (Order). On December 20, 2011, the Government filed a Motion for Summary Disposition. On December 21, 2011, I stayed the proceedings pending resolution of the Government’s motion. On December 22, 2011, Respondent filed a Motion in Opposition to DEA’s Motion for Summary Disposition. II. The Parties’ Contentions A. The Government In support of its Motion for Summary Disposition, the Government asserts that on October 25, 2011, the Illinois Department of Financial and Professional Regulation (IDFPR) executed an order summarily suspending Respondent’s medical license, effective immediately. (Gov’t Mot. Summ. Disp. at 1.) The Government contends that such state authority is a necessary condition for maintaining a DEA COR and, therefore, asks that I grant its motion and forward the matter to the Administrator.1 (Id. at 1–2.) In support of its motion, the Government cites Agency precedent and attaches the Notice of Temporary 1 The OSC provides Respondent with an opportunity to show cause ‘‘as to why DEA should not revoke’’ Respondent’s DEA COR. (OSC at 1.) The OSC then factually alleges that Respondent’s DEA COR ‘‘expired by its terms on October 31, 2011,’’ and that Respondent filed a timely request to renew his registration. (Id.) The Government requests that I ‘‘forward the matter to the Administrator for a Final Order with a recommendation that Respondent’s DEA application for registration be denied.’’ (Gov’t Mot. Summ. Disp. at 2.) For purposes of this Recommended Decision, I will treat the Government’s request as one to revoke Respondent’s DEA COR and deny any pending applications for renewal or modification. PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 29695 Suspension and Order entered by the IDFPR as Exhibit A. B. Respondent Although Respondent concedes that his ‘‘Illinois Controlled Substances Registration is presently in suspended status,’’ he argues that the suspension is temporary in nature pending an evidentiary hearing before the IDFPR. (Resp’t Mot. in Opp’n at 1.) Respondent notes that an evidentiary hearing will be scheduled ‘‘in the very near future,’’ and he believes that his license will be restored to active status. (Id. at 1–2.) In support of his motion, Respondent cites Stuart A. Bergman, M.D., 70 Fed. Reg. 33,193 (DEA 2005), and argues that the facts of this case similarly warrant a delay in ruling on the Government’s motion until after the conclusion of the evidentiary hearing before the IDFPR. (Id. at 2.) III. Discussion At issue is whether Respondent may maintain his DEA COR given that Illinois, the State in which Respondent maintains his DEA COR, has suspended Respondent’s Physician and Surgeon License and Controlled Substance License. Under 21 U.S.C. 824(a)(3), a practitioner’s loss of state authority to engage in the practice of medicine and to handle controlled substances is grounds to revoke a practitioner’s registration. Accordingly, this Agency has consistently held that a person may not hold a DEA registration if he is without appropriate authority under the laws of the state in which he does business. See Scott Sandarg, D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA 2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A. Ricci, M.D., 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919 (DEA 1988). Summary disposition in a DEA revocation case is warranted even if the period of suspension of a respondent’s state medical license is temporary, or even if there is the potential for reinstatement of state authority because ‘‘revocation is also appropriate when a state license had been suspended, but with the possibility of future reinstatement.’’ Bergman, 70 FR at 33,193; Roger A. Rodriguez, M.D., 70 FR 33,206 (DEA 2005). It is well-settled that when no question of fact is involved, or when the material facts are agreed upon, a plenary, adversarial administrative proceeding is not required, under the rationale that Congress does not intend administrative agencies to perform meaningless tasks. See Layfe Robert E:\FR\FM\18MYN1.SGM 18MYN1 29696 Federal Register / Vol. 77, No. 97 / Friday, May 18, 2012 / Notices Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael G. Dolin, M.D., 65 FR 5661 (DEA 2000); see also Philip E. Kirk, M.D., 48 FR 32,887 (DEA 1983), aff’d sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984). Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994). In the instant case, the Government asserts, and Respondent concedes, that Respondent’s Illinois license to practice medicine and handle controlled substances is suspended. This allegation is confirmed by Government Exhibit A. I therefore find there is no genuine dispute as to any material fact, and that substantial evidence shows that Respondent is presently without state authority to handle controlled substances in Illinois. I decline to delay ruling on the Government’s motion, particularly in light of the fact that Respondent does not appear to have a scheduled hearing date before the IDFPR. Compare Bergman, 70 FR at 33,193 (noting that the ALJ delayed ruling on the Government’s motion where the respondent had an evidentiary hearing scheduled before the state board). Because ‘‘DEA does not have statutory authority under the Controlled Substances Act to maintain a registration if the registrant is without state authority to handle controlled substances in the state in which he practices,’’ Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (DEA 2006), I conclude that summary disposition is appropriate. It is therefore Ordered that the hearing in this case, scheduled to commence on March 6, 2012, is hereby cancelled; and it is further Ordered that all proceedings before the undersigned are stayed pending the Agency’s issuance of a final order. Recommended Decision mstockstill on DSK4VPTVN1PROD with NOTICES I grant the Government’s Motion for Summary Disposition and recommend that Respondent’s DEA COR AN1255733 be revoked and any pending applications for renewal or modification be denied.2 Dated: December 23, 2011. Timothy D. Wing, Administrative Law Judge. [FR Doc. 2012–12121 Filed 5–17–12; 8:45 am] BILLING CODE 4410–09–P 2 Notably, Respondent requests that I recommend the immediate suspension of his registration, rather than revocation, citing 21 U.S.C. 824(a)(4). (Resp’t Mot. in Opp’n at 3.) VerDate Mar<15>2010 18:21 May 17, 2012 Jkt 226001 DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 12–30] James Edgar Lundeen, Sr., M.D.; Dismissal of Proceeding On December 19, 2011, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to James Edgar Lundeen, Sr., M.D. (Respondent), of Uniontown, Ohio. The Order proposed the revocation of Respondent’s DEA Certificate of Registration as a practitioner, and the denial of any pending application to renew or modify the registration, on the ground that Respondent does not have authority under Ohio law to practice medicine or dispense controlled substances. Show Cause Order at 1. Following service of the Show Cause Order, Respondent requested a hearing. Thereafter, the Government moved for summary disposition; Respondent opposed the motion. On February 22, 2012, the ALJ granted the Government’s motion, finding that there was no dispute as to the material fact that Respondent does not possess authority under Ohio law to dispense controlled substances and that he was therefore not entitled to hold his DEA registration. ALJ Dec. at 4–7. The ALJ thus recommended that Respondent’s registration be revoked and that any pending application to renew or modify his registration be denied. Id. at 8. Neither party filed exceptions to the ALJ’s decision and on March 20, 2012, the ALJ forwarded the record to me for Final Agency Action. Upon review of the record, it was noted that the Government had alleged in the Show Cause Order that Respondent’s registration was due to expire on March 31, 2012. Show Cause Order at 1. The record, however, contained no evidence as to whether Respondent had filed a renewal application.1 Because in the absence of a timely renewal application, Respondent’s registration would expire, see 5 U.S.C. 558(c), pursuant to 5 U.S.C. 556(e) and 21 CFR 1316.59, I have taken official notice of Respondent’s registration record with the Agency.2 1 Nor does the record contain a copy of Respondent’s Registration or any other evidence establishing the Agency’s jurisdiction. Henceforth, the ALJs should ensure that such evidence is submitted for the record prior to acting upon any dispositive motion. 2 In accordance with the Administrative Procedure Act (APA), an agency ‘‘may take official notice of facts at any stage in a proceeding-even in PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 According to this record, Respondent has not filed a renewal application. Accordingly, I find that Respondent’s registration has expired. Under DEA precedent, ‘‘if a registrant has not submitted a timely renewal application prior to the expiration date, then the registration expires and there is nothing to revoke.’’ Ronald J. Riegel, 63 FR 67132, 67133 (1998); see also Thomas E. Mitchell, 76 FR 20032, 20033 (2011). Moreover, in the absence of an application (whether timely filed or not), there is nothing to act upon. Accordingly, because Respondent has allowed his registration to expire and has not filed any application, this case is now moot and will be dismissed.3 Order Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28 CFR 0.100(b), I hereby order that the Order to Show Cause issued to James Edgar Lundeen, Sr., M.D., be, and it hereby is, dismissed. This order is effective immediately. Dated: May 4, 2012. Michele M. Leonhart, Administrator. [FR Doc. 2012–12118 Filed 5–17–12; 8:45 am] BILLING CODE 4410–09–P NATIONAL SCIENCE FOUNDATION Proposal Review Panel for Materials Research; Notice of Meeting In accordance with the Federal Advisory Committee Act (Pub. L. 92– 463 as amended), the National Science Foundation announces the following meeting: Name: Site visit review of the Materials Research Science and Engineering Center (MRSEC) at the University of Chicago by the Division of Materials Research (DMR) #1203. Dates & Times: June 6, 2012; 6:00 p.m.– 8:30 p.m. June 7, 2012; 7:15 a.m.–8:30 p.m. June 8, 2012; 7:15 a.m.–3:00 p.m. Place: University of Chicago, Chicago, IL. Type of Meeting: Part open. the final decision.’’ U.S. Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and DEA’s regulations, Respondent is ‘‘entitled on timely request to an opportunity to show to the contrary.’’ 5 U.S.C. 556(e); see also 21 CFR 1316.59(e). To allow Respondent the opportunity to refute the facts of which I take official notice, Respondent may file a motion for reconsideration within fifteen calendar days of service of this order which shall commence on the date this order is mailed. 3 While the Show Cause Order will be dismissed, under 21 U.S.C. 823(f), Respondent is not entitled to be registered until he is again ‘‘authorized to dispense * * * controlled substances under the laws of the State in which he practices.’’ E:\FR\FM\18MYN1.SGM 18MYN1

Agencies

[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Notices]
[Pages 29694-29696]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12121]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-19]


Richard H. NG, D.O.; Decision and Order

    On December 23, 2011, Administrative Law Judge (ALJ) Timothy D. 
Wing 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.
    To make clear, DEA's longstanding rule that a practitioner may not 
hold a registration if he lacks authority under state law to dispense 
controlled substances and that the loss of such authority subjects a 
practitioner's registration to revocation is not based solely on 21 
U.S.C. 824(a)(3), which is a grant of authority to either suspend or 
revoke a registration ``upon a finding'' that a registrant ``has had 
his State license or registration suspended, revoked, or denied by 
competent State authority and is no longer authorized by State law to 
engage in the * * * dispensing of controlled substances.'' As explained 
in numerous cases, DEA's rule derives primarily from two other 
provisions of the CSA, 21 U.S.C. 802(21), which defines the term 
``practitioner,'' and 21 U.S.C. 823(f), which sets forth the 
requirements for obtaining a registration as a practitioner.
    More specifically, the CSA defines ``the term `practitioner' [to] 
mean [] a * * * physician * * * or other person 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.'' 21 U.S.C. 802(21). 
Consistent with this definition, Congress, in setting the requirements 
for obtaining a practitioner's registration, provided that ``[t]he 
Attorney General shall register practitioners * * * if the applicant is 
authorized to dispense * * * controlled substances under the laws of 
the State in which he practices.'' 21 U.S.C. 823(f). Accordingly, 
because one cannot obtain a practitioner's registration unless one 
holds authority under state law to dispense controlled substances, and 
because where a

[[Page 29695]]

registered practitioner's state authority has been revoked or 
suspended, the practitioner no longer meets the statutory definition of 
a practitioner, DEA has repeatedly held that the possession of 
authority to dispense controlled substances under the laws of the State 
in which a practitioner engages in professional practice is a 
fundamental condition for both obtaining and maintaining a 
practitioner's registration. See ALJ at 4 (citing cases).\1\ So too, 
``revocation is warranted even where a practitioner's state authority 
has been summarily suspended and the State has yet to provide the 
practitioner with a hearing to challenge the State's action at which he 
may ultimately prevail.'' Kamal Tiwari, M.D., 76 FR 71604, 71606 
(2011); see also Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne 
Lazar Thorn, 62 FR 12847 (1997). Accordingly, I adopt the ALJ's 
recommended order.
---------------------------------------------------------------------------

    \1\ This citation is to the slip opinion as issued by the ALJ.
---------------------------------------------------------------------------

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 AN1255733, issued to Richard H. Ng, D.O., be, and it 
hereby is, revoked. I further order that any pending application of 
Richard H. Ng, D.O., to renew or modify his registration, be, and it 
hereby is, denied. This Order is effective immediately.\2\
---------------------------------------------------------------------------

    \2\ The suspension order of the Illinois Department of Financial 
and Professional Regulation found that ``the public interest, safety 
and welfare imperatively require emergency action'' and that 
``Respondent's actions constitute an imminent danger to the 
public.'' Department of Fin. & Prof. Reg. v. Richard H. Ng, D.O., 
No. 2011-08881 (Ill. Dep't of Fin. & Prof. Reg. Oct. 25, 2011) 
(order imposing temporary suspension). Accordingly, I likewise 
conclude that the public interest necessitates that this order be 
effective immediately. See 21 CFR 1316.67.

    Dated: May 4, 2012.
Michele M. Leonhart,
Administrator.
Jonathan P. Novak, Esq., for the Government
Glen D. Crick, Esq., Lillian Walanka, Esq.,
Michael D. Monico, Esq., Jacqueline Jacobson, Esq., for the Respondent

Recommended Ruling, Findings of Fact, Conclusions of Law and Decision 
of the Administrative Law Judge

    Timothy D. Wing, Administrative Law Judge. This proceeding is an 
adjudication governed by the Administrative Procedure Act, 5 U.S.C. 551 
et seq., to determine whether a practitioner's Certificate of 
Registration (COR) with the Drug Enforcement Administration (DEA, 
Government or Agency) should be revoked. Without this registration, 
Richard H. Ng, D.O. (Respondent) would be unable to lawfully possess, 
prescribe, dispense or otherwise handle controlled substances.

I. Procedural Posture

    On November 18, 2011, the Deputy Assistant Administrator, DEA, 
issued an Order to Show Cause (OSC) to Respondent. The OCS provided 
notice to Respondent of an opportunity to show cause as to why the DEA 
should not revoke Respondent's DEA COR AN1255733, pursuant to 21 U.S.C. 
824(a)(3)-(4) and 823(f), alleging that Respondent's continued 
registration is inconsistent with the public interest, as that term is 
used in 21 U.S.C. 823(f), and that Respondent's medical license in the 
State of Illinois has been suspended.
    On December 20, 2011, I issued an Order for Statements Addressing 
Respondent's State Authority and Order for Prehearing Statements 
(Order).
    On December 20, 2011, the Government filed a Motion for Summary 
Disposition. On December 21, 2011, I stayed the proceedings pending 
resolution of the Government's motion. On December 22, 2011, Respondent 
filed a Motion in Opposition to DEA's Motion for Summary Disposition.

II. The Parties' Contentions

A. The Government

    In support of its Motion for Summary Disposition, the Government 
asserts that on October 25, 2011, the Illinois Department of Financial 
and Professional Regulation (IDFPR) executed an order summarily 
suspending Respondent's medical license, effective immediately. (Gov't 
Mot. Summ. Disp. at 1.) The Government contends that such state 
authority is a necessary condition for maintaining a DEA COR and, 
therefore, asks that I grant its motion and forward the matter to the 
Administrator.\1\ (Id. at 1-2.) In support of its motion, the 
Government cites Agency precedent and attaches the Notice of Temporary 
Suspension and Order entered by the IDFPR as Exhibit A.
---------------------------------------------------------------------------

    \1\ The OSC provides Respondent with an opportunity to show 
cause ``as to why DEA should not revoke'' Respondent's DEA COR. (OSC 
at 1.) The OSC then factually alleges that Respondent's DEA COR 
``expired by its terms on October 31, 2011,'' and that Respondent 
filed a timely request to renew his registration. (Id.) The 
Government requests that I ``forward the matter to the Administrator 
for a Final Order with a recommendation that Respondent's DEA 
application for registration be denied.'' (Gov't Mot. Summ. Disp. at 
2.) For purposes of this Recommended Decision, I will treat the 
Government's request as one to revoke Respondent's DEA COR and deny 
any pending applications for renewal or modification.
---------------------------------------------------------------------------

B. Respondent

    Although Respondent concedes that his ``Illinois Controlled 
Substances Registration is presently in suspended status,'' he argues 
that the suspension is temporary in nature pending an evidentiary 
hearing before the IDFPR. (Resp't Mot. in Opp'n at 1.) Respondent notes 
that an evidentiary hearing will be scheduled ``in the very near 
future,'' and he believes that his license will be restored to active 
status. (Id. at 1-2.) In support of his motion, Respondent cites Stuart 
A. Bergman, M.D., 70 Fed. Reg. 33,193 (DEA 2005), and argues that the 
facts of this case similarly warrant a delay in ruling on the 
Government's motion until after the conclusion of the evidentiary 
hearing before the IDFPR. (Id. at 2.)

III. Discussion

    At issue is whether Respondent may maintain his DEA COR given that 
Illinois, the State in which Respondent maintains his DEA COR, has 
suspended Respondent's Physician and Surgeon License and Controlled 
Substance License.
    Under 21 U.S.C. 824(a)(3), a practitioner's loss of state authority 
to engage in the practice of medicine and to handle controlled 
substances is grounds to revoke a practitioner's registration. 
Accordingly, this Agency has consistently held that a person may not 
hold a DEA registration if he is without appropriate authority under 
the laws of the state in which he does business. See Scott Sandarg, 
D.M.D., 74 FR 17,528 (DEA 2009); David W. Wang, M.D., 72 FR 54,297 (DEA 
2007); Sheran Arden Yeates, M.D., 71 FR 39,130 (DEA 2006); Dominick A. 
Ricci, M.D., 58 FR 51,104 (DEA 1993); Bobby Watts M.D., 53 FR 11,919 
(DEA 1988).
    Summary disposition in a DEA revocation case is warranted even if 
the period of suspension of a respondent's state medical license is 
temporary, or even if there is the potential for reinstatement of state 
authority because ``revocation is also appropriate when a state license 
had been suspended, but with the possibility of future reinstatement.'' 
Bergman, 70 FR at 33,193; Roger A. Rodriguez, M.D., 70 FR 33,206 (DEA 
2005).
    It is well-settled that when no question of fact is involved, or 
when the material facts are agreed upon, a plenary, adversarial 
administrative proceeding is not required, under the rationale that 
Congress does not intend administrative agencies to perform meaningless 
tasks. See Layfe Robert

[[Page 29696]]

Anthony, M.D., 67 FR 35,582 (DEA 2002); Michael G. Dolin, M.D., 65 FR 
5661 (DEA 2000); see also Philip E. Kirk, M.D., 48 FR 32,887 (DEA 
1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984). 
Accord Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st 
Cir. 1994).
    In the instant case, the Government asserts, and Respondent 
concedes, that Respondent's Illinois license to practice medicine and 
handle controlled substances is suspended. This allegation is confirmed 
by Government Exhibit A. I therefore find there is no genuine dispute 
as to any material fact, and that substantial evidence shows that 
Respondent is presently without state authority to handle controlled 
substances in Illinois. I decline to delay ruling on the Government's 
motion, particularly in light of the fact that Respondent does not 
appear to have a scheduled hearing date before the IDFPR. Compare 
Bergman, 70 FR at 33,193 (noting that the ALJ delayed ruling on the 
Government's motion where the respondent had an evidentiary hearing 
scheduled before the state board). Because ``DEA does not have 
statutory authority under the Controlled Substances Act to maintain a 
registration if the registrant is without state authority to handle 
controlled substances in the state in which he practices,'' Sheran 
Arden Yeates, M.D., 71 FR 39,130, 39,131 (DEA 2006), I conclude that 
summary disposition is appropriate. It is therefore
    Ordered that the hearing in this case, scheduled to commence on 
March 6, 2012, is hereby cancelled; and it is further
    Ordered that all proceedings before the undersigned are stayed 
pending the Agency's issuance of a final order.

Recommended Decision

    I grant the Government's Motion for Summary Disposition and 
recommend that Respondent's DEA COR AN1255733 be revoked and any 
pending applications for renewal or modification be denied.\2\
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    \2\ Notably, Respondent requests that I recommend the immediate 
suspension of his registration, rather than revocation, citing 21 
U.S.C. 824(a)(4). (Resp't Mot. in Opp'n at 3.)

    Dated: December 23, 2011.
Timothy D. Wing,
Administrative Law Judge.
[FR Doc. 2012-12121 Filed 5-17-12; 8:45 am]
BILLING CODE 4410-09-P

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