Pedro E. Lopez, M.D.; Decision and Order, 46324-46326 [2015-19119]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 80, Number 149 (Tuesday, August 4, 2015)]
[Notices]
[Pages 46324-46326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19119]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 15-16]


Pedro E. Lopez, M.D.; Decision and Order

    On March 20, 2015, Chief Administrative Law Judge (CALJ) John J. 
Mulrooney, II, issued the attached Recommended Decision. Neither party 
filed exceptions to the Recommended Decision.
    Having reviewed the record in its entirety, I adopt the CALJ's 
findings of fact,\1\ conclusions of law, and

[[Page 46325]]

recommended order. Accordingly, I will order that Respondent's DEA 
Certificate of Registration be revoked and that any pending 
applications to renew or modify his registration be denied.
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    \1\ I take official notice of the fact that, according to the 
registration records of the Agency, Respondent retains an active 
registration as of this date. Pursuant to 21 CFR 1316.59(e), 
Respondent may controvert this finding by filing a properly 
supported motion, no later than 10 days from the date of this Order.
     Notwithstanding that the language of section 824(a) authorizes 
either the suspension or revocation of a registration upon the 
making of one of the five findings enumerated therein, the Agency 
has consistently interpreted the CSA as mandating revocation where a 
practitioner's state authority has been suspended or revoked. As the 
Fourth Circuit has held, ``[b]ecause Sec.  823(f) and Sec.  802(21) 
make clear that a practitioner's registration is dependent upon the 
practitioner having state authority to dispense controlled 
substances, the [Administrator's] decision to construe Sec.  
824(a)(3) as mandating revocation upon suspension of a state license 
is not an unreasonable interpretation of the CSA.'' Hooper v. 
Holder, 2012 WL 2020079, *2 (4th Cir. 2012) (unpublished).
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a)(3), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration BL2132049, issued to Pedro E. Lopez, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Pedro E. Lopez, M.D., to renew or modify his registration, be, and it 
hereby is, denied. This Order is effective September 3, 2015.

    Dated: July 27, 2015.
Chuck Rosenberg,
Acting Administrator.

Brian Bayly, Esq., for the Government.
Alan Rhine, Esq., for the Respondent.

ORDER GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY DISPOSITION AND 
RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION 
OF THE ADMINISTRATIVE LAW JUDGE

    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 February 6, 
2015, proposing to revoke the DEA Certificate of Registration (COR), 
Number BL2132049, of Pedro E. Lopez, M.D. (Respondent), pursuant to 21 
U.S.C. 824(a)(3) and 21 U.S.C. 823(f), and deny any pending 
applications for renewal or modification of the COR, pursuant to 21 
U.S.C. 823(f).
    In the OSC, the Government alleges that the Respondent is, inter 
alia, without ``authority to handle controlled substances in the State 
of Illinois'' as grounds for revocation of the Respondent's DEA 
registration. On March 6, 2015, the Respondent, by counsel, filed a 
Request for Hearing in the above-captioned matter. The Request for 
Hearing stated that a hearing is appropriate because ``the Respondent 
has instituted proceedings to restore his authority to handle 
controlled substances in Illinois.'' Req. for Hrg. at 1.
    Consistent with my direction, the parties have briefed the issues. 
On March 11, 2015, the Government filed a Motion for Summary 
Disposition and Evidence in Support of its Motion for Summary 
Disposition (Motion for Summary Disposition), seeking that this 
tribunal issue a Recommended Decision granting the Government's Motion 
on the ground that the Respondent is currently without state authority 
to handle controlled substances. Mot. for Summary Disp. at 1. According 
to the Government's Motion, the State of Illinois, Department of 
Financial and Professional Regulation (IDFPR) suspended the 
Respondent's license to practice medicine, effective March 12, 2014, 
and that suspension order remains in effect. Id. Attached to the 
Government's Motion is the IDFPR Order dated March 12, 2014 suspending 
the Respondent's state Physician and Surgeon License No. 036.074815 on 
the grounds that the Respondent failed to comply with the provisions an 
Agreement of Care, Counseling and Treatment that he had entered into 
with IDFPR.\2\ Id., Attachment 1 at 1-2. Under the IDPFR Order, the 
Respondent's state license was indefinitely suspended for a minimum 
period of six months. Id., Attachment 1 at 2.
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    \2\ No objection to consideration of the Government's exhibit, 
or factual challenge to the matters asserted therein was asserted by 
the Respondent.
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    On March 20, 2015, the Respondent, through counsel, filed a reply 
styled ``Response to the Government's Motion for Summary Disposition 
and Evidence in Support of its Motion for Summary Disposition'' 
(Respondent's Reply). In his Reply, the Respondent alleges that he is 
in the process of seeking reinstatement of his medical license from the 
state of Illinois. Resp't Reply at 2. In opposing the Government's 
requested relief, the Respondent avers that inasmuch as he is currently 
not prescribing controlled substances, granting a hearing, or at least 
deferring adjudication until his state privileges are restored presents 
no cognizable danger to the public. Id. at 2-3.
    In order to revoke a registrant's DEA registration, the DEA has the 
burden of proving that the requirements for revocation are satisfied. 
21 CFR 1301.44(e) (2015). 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 (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 FR 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) (2012) (``[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 21 U.S.C. 823(f) (2012) (``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.''). DEA has long held that possession 
of authority under state law to dispense controlled substances is an 
essential condition for obtaining and maintaining a DEA registration. 
Serenity Caf[eacute], 77 FR 35027, 35028 (2012); David W. Wang, 72 FR 
54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 
11919 (1988). 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); see 
also 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); 
Abraham A. Chaplan, M.D., 57 FR 55280 (1992); see also Harrell E. 
Robinson, 74 FR 61370, 61375 (2009).\3\ ``[R]evocation is warranted 
even where a practitioner's state authority has been summarily 
suspended and the State has yet to provide the practitioner

[[Page 46326]]

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). Additionally, Agency precedent has 
established that the existence of other proceedings in which the 
Respondent is involved is not a basis upon which to justify a stay of 
DEA administrative enforcement proceedings. Grider Drug #1 & Grider 
Drug #2, 77 FR 44069, 44104 n.97 (2012).
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    \3\ But see 21 U.S.C. 824(a)(3) (2012) (``A registration 
pursuant to section 823 of this title to manufacture, distribute, or 
dispense a controlled substance may be suspended or revoked by the 
Attorney General upon a finding that the registrant . . . has had 
his State license or registration suspended, revoked, or denied by 
competent State authority . . . .'') (emphasis added).
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    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). 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 FR 14945 (1997); Dominick A. Ricci, M.D., 58 FR 51104 (1993). Here, 
the supplied IDFPR Order establishes, and the Respondent does not 
contest, that the Respondent is currently without authorization to 
handle controlled substances in Illinois, the jurisdiction where the 
Respondent holds the DEA COR that is the subject of this litigation.
    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 (D.C. Cir. 1987) (``an agency may ordinarily 
dispense with a hearing when no genuine dispute exists'').\4\ At this 
juncture, no genuine dispute exists over the fact that the Respondent 
lacks state authority to handle controlled substances in the state of 
Illinois. 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 DEA with the 
authority to allow the Respondent to continue to hold his COR.
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    \4\ 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 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).
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    Accordingly, I hereby
    GRANT the Government's Motion for Summary Disposition; and further
    DENY the Respondent's Request for Stay; and further
    RECOMMEND that the Respondent's DEA registration be REVOKED 
forthwith and any pending applications for renewal be DENIED.

    Dated: March 20, 2015.

JOHN J. MULROONEY, II,
Chief Administrative Law Judge.

[FR Doc. 2015-19119 Filed 8-3-15; 8:45 am]
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