Larry Elbert Perry, M.D.; Decision and Order, 67671-67673 [2012-27522]
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Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Notices
srobinson on DSK4SPTVN1PROD with
handle controlled substances in New
York. Consequently, his DEA
registration must be revoked.
Next, Respondent argues that his
continued DEA registration would not
be inconsistent with the public interest
and therefore, his DEA registration
should not be revoked. [Response at 2–
3]. Respondent argues that the factors to
be considered in determining whether
an application for registration should be
denied or revoked under 21 U.S.C.
824(a)(4) weigh in favor of maintaining
the Respondent’s DEA registration
because he has not issued any
prescriptions that are inconsistent with
the public interest. [Id.].
While the Respondent may have
raised genuine disputes of fact,
concerning the allegations in the
Government’s Order to Show Cause,
those disputes are immaterial in light of
the Respondent’s current lack of state
registration. Indeed, the CSA and
Agency precedent make clear that as a
prerequisite to registration the
Respondent must have state authority to
handle controlled substances, and that
without such authority all other issues
before this forum are moot. See 21
U.S.C. 802(21); 21 U.S.C. 823(f); Joseph
Baumstarck, M.D., 74 FR at 17,527 (DEA
2009). Thus, because there is no dispute
that the Respondent lacks state
authority to handle controlled
substances, the Respondent’s
registration must be revoked.
B. There Is Insufficient Evidence That
Respondent Has Permanently Ceased
the Practice of Medicine
A registrant’s DEA registration
terminates as a matter of law when the
registrant ceases to practice at his
registered location. See 21 U.S.C. 822(e)
(2006) (‘‘A separate registration shall be
required at each principal place of
business or professional practice where
the applicant manufactures, distributes,
or dispenses controlled substances of
list I chemicals’’); 21 CFR 1301.52(a)
(2012) (‘‘[T]he registration of any
person, and any modifications of that
registration, shall terminate, without
any further action by the
Administration, if and when such
person dies, ceases legal existence,
discontinues business or professional
practice, or surrenders a registration’’).
In addition, a registrant must either
request that his DEA registered address
be changed or the registrant must notify
the DEA that he is no longer practicing
at the place of business where he is
registered. See 21 CFR 1301.51 (2010)
(‘‘Any registrant may apply to modify
his/her registration to authorize the
handling of additional controlled
substances or to change his/her name or
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18:20 Nov 09, 2012
Jkt 229001
address, by submitting a letter of request
to the Registration Unit, Drug
Enforcement Administration’’); 21 CFR
1301.52(c) (2011) (‘‘Any registrant
desiring to discontinue business
activities altogether or with respect to
controlled substances (without
transferring such business activities to
another person) shall return for
cancellation his/her certificate of
registration, and any unexecuted order
forms in his/her possession, to the
Registration Unit, Drug Enforcement
Administration’’).
The Respondent does not dispute that
he no longer is working at his DEA
registered location. However, the
Respondent argues that the closure of
his medical practice at 104 Mill Road
Woodstock, N.Y. is the result of the
consensual Interim Order issued by the
New York Board and cannot form the
basis for a termination of his DEA
registration. [Response at 3].
In this case, there is insufficient
evidence to support a finding that the
Respondent has permanently ceased the
practice of medicine and therefore, the
Court declines to address the issue of
whether or not the Respondent’s DEA
registration terminates by operation of
law. See John B. Freitas, D.O., 74 FR
17,524, 17,525 (DEA 2009) (finding that
a registrant’s registration had not
terminated because the registrant had
not permanently ceased the practice of
medicine or returned his registration for
cancellation); William R. Lockridge,
M.D., 71 FR 77,791, 77,797 (DEA 2006)
(interpreting 21 CFR 1301.52(a) to
require a registrant to permanently cease
the practice of medicine). Therefore,
because there is insufficient evidence to
determine whether the Respondent
intends to permanently cease the
practice of medicine, the Court declines
to address whether the Respondent’s
DEA registration has terminated as a
matter of law.
C. Respondent Is Entitled To Reapply
for Registration With the DEA
Any person who is required to register
with the DEA may apply for registration
at any time. 21 CFR 1301.13(a) (2012)
(‘‘Any person who is required and who
is not registered may apply for
registration at any time. No person
required to be registered shall engage in
any activity for which registration is
required until the application for
registration is granted and a Certificate
of Registration is issued by the
Administrator to such person’’).
Respondent requests that he be able to
reapply for a Certificate of Registration
with the DEA, when, and if, his medical
license becomes active. [Response at 3].
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67671
The Respondent is permitted to
reapply for a Certificate of Registration
with the DEA at any time in the future.
21 CFR 1301.13(a). However, the
Respondent will not be permitted to
engage in activity for which a
registration is required until his
application is granted by the DEA. Id.
III. Conclusion, Order, and
Recommendation
Consequently, there is no genuine
dispute of material fact regarding the
Respondent’s lack of state authority to
handle controlled substances. Thus,
summary judgment for the Government
is appropriate. It is well settled that
when there is no question of material
fact involved, there is no need for a
plenary, administrative hearing. See
Michael G. Dolin, M.D., 65 Fed. Reg.
5,661 (DEA 2000). Here, there is no
genuine dispute that the Respondent
currently lacks state authority to
practice medicine and to handle
controlled substances in New York.
Accordingly, I hereby grant the
Government’s Motion for Summary
Judgment.
I also forward this case to the Deputy
Administrator for final disposition. I
recommend that the Respondent’s DEA
Certificate of Registration, Number
BL9651250, be revoked.1
September 6, 2012.
Gail A. Randall,
Administrative Law Judge.
[FR Doc. 2012–27546 Filed 11–9–12; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12–48]
Larry Elbert Perry, M.D.; Decision and
Order
On July 2, 2012, Chief Administrative
Law Judge John J. Mulrooney, Jr., issued
the attached Recommended Decision.
Neither party filed exceptions to the
Recommended Decision.
Having reviewed the entire record, I
have decided to adopt the ALJ’s findings
of fact, conclusions of law, and
recommended order. Accordingly, I will
order that Respondent’s DEA Certificate
of Registration be revoked and that any
pending application to renew or modify
his registration be denied.
1 The sole basis of my recommendation is the loss
of Respondent’s state licensure. I make no findings
or conclusions concerning the other allegations
asserted in the Order to Show Cause.
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67672
Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Notices
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 Number
BP2742357, issued to Larry Elbert Perry,
M.D., be, and it hereby is, revoked. I
further order that any pending
application of Larry Elbert Perry, M.D.,
to renew or modify his registration, be,
and it hereby is, denied. This Order is
effective December 13, 2012.
Dated: October 26, 2012.
Michele M. Leonhart,
Administrator.
srobinson on DSK4SPTVN1PROD with
Theresa Krause, Esq., for the
Government
Frank J. Scanlon, Esq., for the
Respondent
ORDER GRANTING THE
GOVERNMENT’S UNOPPOSED
MOTION FOR SUMMARY
DISPOSITION, DENYING THE
GOVERNMENT’S MOTION TO STAY
AND RECOMMENDED DECISION
Chief Administrative Law Judge John
J. Mulrooney II. On May 4, 2012, the
Deputy Assistant Administrator of the
Drug Enforcement Administration
(DEA), issued an Order to Show Cause
(OSC), proposing to revoke the DEA
Certificate of Registration (COR),
Number BP2742357, of Larry Elbert
Perry, M.D. (Respondent), pursuant to
21 U.S.C. § 824(a)(3) and (4) (2006), and
to deny any pending applications for
renewal or modification of such
registration, pursuant to 21 U.S.C.
§ 823(f). In the OSC, the Government
alleges that revocation is necessary
because the Respondent does ‘‘not have
authority to practice medicine or handle
controlled substances in the State of
Kentucky,’’ the State of the
Respondent’s registration. OSC, at 1–2.
On June 6, 2012, the DEA Office of
Administrative Law Judges (OALJ)
received from the Respondent, through
counsel, a timely filed request for
hearing (Hearing Request) that
contained a request for continuance,
and which conceded that the
Respondent lacks authority to handle
controlled substances in the State of
Kentucky. The Respondent’s Hearing
Request contended that the loss of his
Kentucky authority was based, in large
part, on a disciplinary action by the
Tennessee Board of Medicine, and that
an extension should be granted for ‘‘a
reasonable period of time to allow [the
Respondent] to regain his licenses in
Tennessee and Kentucky.’’ The same
day, by order of this tribunal, the
Respondent’s motion for a continuance
was denied. Order Denying the
Respondent’s Request for Continuance
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17:08 Nov 09, 2012
Jkt 229001
and Directing the Filing of Government
Evidence in Support of its Lack of State
Authority Allegation and Briefing
Schedule (‘‘Briefing Schedule Order’’),
at 1. In addition to denying the request
for a continuance, the Briefing Schedule
Order directed the Government ‘‘to
provide evidence to support the
allegation that the Respondent lacks
state authority to handle controlled
substances [on or before] June 15,
2012.’’ Id. at 2. In this regard, the
Schedule Order set a June 15, 2012,
deadline for the Government to file a
motion for summary disposition
regarding the Respondent’s alleged lack
of state authority and a June 25, 2012,
deadline for any response to such
motion. Id. at 2.
On June 7, 2012, the Government filed
a Motion for Stay of Proceedings and
Summary Disposition (‘‘MSD’’), seeking:
(1) summary disposition; (2) a
recommendation that ‘‘the Respondent’s
DEA COR as a practitioner be revoked,
based on the Respondent’s lack of a
state licensure;’’ (3) the transmission of
the instant matter to the Administrator
for Final Agency Action; and (4) ‘‘a stay
of these administrative proceedings
pending the results of this Government
motion.’’ MSD, at 5. A copy of a
November 19, 2009, Emergency Order of
Suspension (Suspension Order) issued
by the Commonwealth of Kentucky
Board of Medical Licensure, and a copy
of a September 26, 2011, Agreed Order
of Surrender, which memorialized the
Respondent’s surrender of his state
license to practice medicine, were both
attached to the MSD. The Respondent
did not file a response to the
Government’s motion within the time
allowed.1 Accordingly, the motion will
be deemed unopposed.
Congress does not intend for
administrative agencies to perform
meaningless tasks. See Philip E. Kirk,
M.D., 48 Fed. Reg. 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). Thus, 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 Fed. Reg. 14945 (1997);
Dominick A. Ricci, M.D., 58 Fed. Reg.
1 Indeed, a week has passed since the response
due date with no word from the Respondent or his
counsel.
PO 00000
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Fmt 4703
Sfmt 4703
51104 (1993), Here, both parties agree
that the Respondent is without
authorization to practice medicine or
handle controlled substances in
Kentucky, the jurisdiction where the
Respondent holds the DEA COR that is
the subject of this litigation.
In order to revoke a registrant’s DEA
registration, the Government has the
burden of proving that the requirements
for revocation are satisfied. 21 C.F.R.
§ 1301.44(e). Once the Government has
made its prima facie case for revocation
of the registrant’s DEA COR, the burden
of production shifts to the Respondent
to show that, given the totality of the
facts and circumstances in the record,
revoking the registrant’s registration
would be inappropriate. Morall v. DEA,
412 F.3d 165, 174 (D.C. 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 Fed. Reg.
72311 (1980).
The Controlled Substances Act (CSA)
requires that, in order to maintain a
DEA registration, a practitioner must be
authorized to handle controlled
substances in ‘‘the jurisdiction in which
he practices.’’ 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 Fed. Reg.
20346, 20347 (2009); Scott Sandarg,
D.M.D., 74 Fed. Reg. 17528, 174529
(2009); John B. Freitas, D.O., 74 Fed.
Reg. 17524, 17525 (2009); Roger A.
Rodriguez, M.D., 70 Fed. Reg. 33206,
33207 (2005); Stephen J. Graham, M.D.,
69 Fed. Reg. 11661 (2004); Dominick A.
Ricci, M.D., 58 Fed. Reg. 51104 (1993);
Abraham A. Chaplan, M.D., 57 Fed.
Reg. 55280 (1992); Bobby Watts, M.D.,
53 Fed. Reg. 11919 (1988); see also
Harrell E. Robinson, 74 Fed. Reg. 61370,
61375 (2009).
As explained above, summary
disposition of an administrative case is
warranted where, as here, ‘‘there is no
factual dispute of substance.’’ See Veg-
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Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Notices
Mix, Inc., 832 F.2d 601, 607 (DC Cir.
1987) (‘‘an agency may ordinarily
dispense with a hearing when no
genuine dispute exists’’).2 At this
juncture, no genuine dispute exists over
the fact that the Respondent lacks state
authority to handle controlled
substances in the State of Kentucky.
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 would provide sufficient
grounds to allow the Respondent to
continue to hold his COR. 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 Fed. Reg.
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.
July 2, 2012.
John J. Mulrooney II,
Chief Administrative Law Judge.
[FR Doc. 2012–27522 Filed 11–9–12; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12–56]
Fernando Valle, M.D.; Decision and
Order
srobinson on DSK4SPTVN1PROD with
On August 10, 2012, Chief
Administrative Law Judge John J.
Mulrooney, Jr., issued the attached
Recommended Decision. Neither party
filed exceptions to the Recommended
Decision.
2 Even assuming arguendo the possibility that the
Respondent’s state controlled substances privileges
could be reinstated, summary disposition would
still be warranted because ‘‘revocation is also
appropriate when a state license has been
suspended, but with the possibility of future
reinstatement,’’ Rodriguez, 70 Fed. Reg. 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 Fed. Reg. 5661, 5662 (2000).
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17:08 Nov 09, 2012
Jkt 229001
Having reviewed the entire record, I
have decided to adopt the ALJ’s findings
of fact, conclusions of law, and
recommended order. Accordingly, I will
order that Respondent’s DEA
Certificates of Registration be revoked
and that any pending applications to
renew or modify his registrations be
denied.
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 Numbers
FV1935595, FV2000711, and
FV2000735, issued to Fernando Valle,
M.D., be, and they hereby are, revoked.
I further order that any pending
applications of Fernando Valle, M.D., to
renew or modify his registrations, be,
and they hereby are, denied. This Order
is effective immediately.1
Dated: October 26, 2012.
Michele M. Leonhart,
Administrator.
Michelle Gillice, Esq., for the
Government.
Dale Sisco, Esq., for the Respondent.
Order Granting the Government’s
Motion for Summary Disposition and
Recommended Decision
Chief Administrative Law Judge John
J. Mulrooney, II. On June 25, 2012, the
Administrator of the Drug Enforcement
Administration (DEA), issued an Order
to Show Cause and Immediate
Suspension of Registration (OSC/ISO)
immediately suspending and proposing
to revoke the DEA Certificate of
Registration (COR), Number FV1935595,
of the Respondent pursuant to 21 U.S.C.
824(a), and to deny any pending
applications for registration, renewal or
modification pursuant to 21 U.S.C.
823(f) and 824(a) because the
Respondent’s continued registration
would ‘‘be inconsistent with the public
interest, as that term is defined in 21
U.S.C. 823(f).’’ As grounds for these
proposed actions, the OSC/ISO alleges
that the Respondent ‘‘prescribed * * *
controlled substances to * * *
undercover law enforcement officers not
for a legitimate medical purpose in the
usual course of professional practice in
violation of applicable Federal, State
and local law.’’ OSCI/ISO, at 1. The
OSC/ISO was served on the Respondent
on June 27, 2012. Gov’t Not. of Service.
On July 26, 2012, the Respondent,
1 Based on the findings of the Florida Department
of Health’s Order of Emergency Suspension of
License, I conclude that the public interest requires
this Order be effective immediately. 21 CFR
1316.67.
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67673
through counsel, filed a timely request
for hearing.
On July 27, 2012, the Government
filed a Motion for Summary Disposition
and Motion to Stay Proceedings
(‘‘MSD’’), in which it represented that
‘‘[o]n June 26, 2012, the State of Florida
[the state in which Respondent holds
his COR] Department of Health executed
an emergency order suspending
Respondent’s medical license M41752,
effective immediately.’’ 1 MSD, at 1.
Based on the foregoing, the Government
sought the following relief: (1) Summary
disposition; (2) a recommendation that
the ‘‘Respondent’s DEA registration be
revoked and any pending application
for renewal or modification of such
registration be denied;’’ (3) the
transmission of the instant matter to the
Administrator for Final Agency Action;
and (4) a stay of these administrative
proceedings pending the results of the
Government’s motion for summary
disposition. MSD, at 3.
By a July 27, 2012, Order, this
tribunal granted the Government’s
motion to stay, and directed the
Respondent to file a response to the
Government’s motion for summary
disposition on or before August 6, 2012.
Order Regarding Government’s Motion
for Summary Disposition, at 2.
On August 3, 2012, the Respondent
filed his response to the MSD.
Respondent’s Response to Government’s
Motion for Summary Disposition
(‘‘Response’’). In the Response, the
Respondent contends that revocation
based on the Emergency Order ‘‘will
effectively result in a denial of Due
Process to Respondent without notice or
opportunity for hearing and based only
on the minimal standards of probable
cause.’’ Response, at 2–3. The
Respondent further submits that:
Summary Disposition is inappropriate
prior to resolution of the numerous questions
of material fact, as well as procedural issues,
associated with the emergency suspension of
his Florida Medical License and immediate
suspension of his DEA registrations. With
regard to his DEA registrations, these
include, but are not limited to, whether the
immediate suspension of the Respondent’s
registration was based on a valid inspection
and investigation; whether the continued
registration of the Respondent constitutes an
imminent danger to the public health and
safety; and whether other grounds exist for
the Government to limit the suspension of
the Respondent’s registration.
Response, at 3.
On August 6, 2012, the Government
filed a Reply to Respondent’s Response
1 The order of suspension (‘‘Emergency Order’’) is
attached to the MSD as ‘‘Exhibit A.’’ The emergency
suspension appears to be based on the same
allegations set forth in the OSC/ISO.
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]]>Agencies
[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Notices]
[Pages 67671-67673]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27522]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-48]
Larry Elbert Perry, M.D.; Decision and Order
On July 2, 2012, Chief Administrative Law Judge John J. Mulrooney,
Jr., issued the attached Recommended Decision. Neither party filed
exceptions to the Recommended Decision.
Having reviewed the entire record, I have decided to adopt the
ALJ's findings of fact, conclusions of law, and recommended order.
Accordingly, I will order that Respondent's DEA Certificate of
Registration be revoked and that any pending application to renew or
modify his registration be denied.
[[Page 67672]]
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 Number BP2742357, issued to Larry Elbert Perry, M.D., be,
and it hereby is, revoked. I further order that any pending application
of Larry Elbert Perry, M.D., to renew or modify his registration, be,
and it hereby is, denied. This Order is effective December 13, 2012.
Dated: October 26, 2012.
Michele M. Leonhart,
Administrator.
Theresa Krause, Esq., for the Government
Frank J. Scanlon, Esq., for the Respondent
ORDER GRANTING THE GOVERNMENT'S UNOPPOSED MOTION FOR SUMMARY
DISPOSITION, DENYING THE GOVERNMENT'S MOTION TO STAY AND RECOMMENDED
DECISION
Chief Administrative Law Judge John J. Mulrooney II. On May 4,
2012, the Deputy Assistant Administrator of the Drug Enforcement
Administration (DEA), issued an Order to Show Cause (OSC), proposing to
revoke the DEA Certificate of Registration (COR), Number BP2742357, of
Larry Elbert Perry, M.D. (Respondent), pursuant to 21 U.S.C. Sec.
824(a)(3) and (4) (2006), and to deny any pending applications for
renewal or modification of such registration, pursuant to 21 U.S.C.
Sec. 823(f). In the OSC, the Government alleges that revocation is
necessary because the Respondent does ``not have authority to practice
medicine or handle controlled substances in the State of Kentucky,''
the State of the Respondent's registration. OSC, at 1-2.
On June 6, 2012, the DEA Office of Administrative Law Judges (OALJ)
received from the Respondent, through counsel, a timely filed request
for hearing (Hearing Request) that contained a request for continuance,
and which conceded that the Respondent lacks authority to handle
controlled substances in the State of Kentucky. The Respondent's
Hearing Request contended that the loss of his Kentucky authority was
based, in large part, on a disciplinary action by the Tennessee Board
of Medicine, and that an extension should be granted for ``a reasonable
period of time to allow [the Respondent] to regain his licenses in
Tennessee and Kentucky.'' The same day, by order of this tribunal, the
Respondent's motion for a continuance was denied. Order Denying the
Respondent's Request for Continuance and Directing the Filing of
Government Evidence in Support of its Lack of State Authority
Allegation and Briefing Schedule (``Briefing Schedule Order''), at 1.
In addition to denying the request for a continuance, the Briefing
Schedule Order directed the Government ``to provide evidence to support
the allegation that the Respondent lacks state authority to handle
controlled substances [on or before] June 15, 2012.'' Id. at 2. In this
regard, the Schedule Order set a June 15, 2012, deadline for the
Government to file a motion for summary disposition regarding the
Respondent's alleged lack of state authority and a June 25, 2012,
deadline for any response to such motion. Id. at 2.
On June 7, 2012, the Government filed a Motion for Stay of
Proceedings and Summary Disposition (``MSD''), seeking: (1) summary
disposition; (2) a recommendation that ``the Respondent's DEA COR as a
practitioner be revoked, based on the Respondent's lack of a state
licensure;'' (3) the transmission of the instant matter to the
Administrator for Final Agency Action; and (4) ``a stay of these
administrative proceedings pending the results of this Government
motion.'' MSD, at 5. A copy of a November 19, 2009, Emergency Order of
Suspension (Suspension Order) issued by the Commonwealth of Kentucky
Board of Medical Licensure, and a copy of a September 26, 2011, Agreed
Order of Surrender, which memorialized the Respondent's surrender of
his state license to practice medicine, were both attached to the MSD.
The Respondent did not file a response to the Government's motion
within the time allowed.\1\ Accordingly, the motion will be deemed
unopposed.
---------------------------------------------------------------------------
\1\ Indeed, a week has passed since the response due date with
no word from the Respondent or his counsel.
---------------------------------------------------------------------------
Congress does not intend for administrative agencies to perform
meaningless tasks. See Philip E. Kirk, M.D., 48 Fed. Reg. 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). Thus,
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 Fed. Reg. 14945 (1997); Dominick A. Ricci, M.D., 58 Fed. Reg. 51104
(1993), Here, both parties agree that the Respondent is without
authorization to practice medicine or handle controlled substances in
Kentucky, the jurisdiction where the Respondent holds the DEA COR that
is the subject of this litigation.
In order to revoke a registrant's DEA registration, the Government
has the burden of proving that the requirements for revocation are
satisfied. 21 C.F.R. Sec. 1301.44(e). Once the Government has made its
prima facie case for revocation of the registrant's DEA COR, the burden
of production shifts to the Respondent to show that, given the totality
of the facts and circumstances in the record, revoking the registrant's
registration would be inappropriate. Morall v. DEA, 412 F.3d 165, 174
(D.C. 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 Fed. Reg. 72311 (1980).
The Controlled Substances Act (CSA) requires that, in order to
maintain a DEA registration, a practitioner must be authorized to
handle controlled substances in ``the jurisdiction in which he
practices.'' 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 Fed. Reg. 20346, 20347 (2009); Scott Sandarg, D.M.D., 74
Fed. Reg. 17528, 174529 (2009); John B. Freitas, D.O., 74 Fed. Reg.
17524, 17525 (2009); Roger A. Rodriguez, M.D., 70 Fed. Reg. 33206,
33207 (2005); Stephen J. Graham, M.D., 69 Fed. Reg. 11661 (2004);
Dominick A. Ricci, M.D., 58 Fed. Reg. 51104 (1993); Abraham A. Chaplan,
M.D., 57 Fed. Reg. 55280 (1992); Bobby Watts, M.D., 53 Fed. Reg. 11919
(1988); see also Harrell E. Robinson, 74 Fed. Reg. 61370, 61375 (2009).
As explained above, summary disposition of an administrative case
is warranted where, as here, ``there is no factual dispute of
substance.'' See Veg-
[[Page 67673]]
Mix, Inc., 832 F.2d 601, 607 (DC Cir. 1987) (``an agency may ordinarily
dispense with a hearing when no genuine dispute exists'').\2\ At this
juncture, no genuine dispute exists over the fact that the Respondent
lacks state authority to handle controlled substances in the State of
Kentucky. 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 would provide sufficient
grounds to allow the Respondent to continue to hold his COR. 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 Fed. Reg. 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).
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\2\ Even assuming arguendo the possibility that the Respondent's
state controlled substances privileges could be reinstated, summary
disposition would still be warranted because ``revocation is also
appropriate when a state license has been suspended, but with the
possibility of future reinstatement,'' Rodriguez, 70 Fed. Reg. 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 Fed. Reg. 5661, 5662
(2000).
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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.
July 2, 2012.
John J. Mulrooney II,
Chief Administrative Law Judge.
[FR Doc. 2012-27522 Filed 11-9-12; 8:45 am]
BILLING CODE 4410-09-P
