Arnold E. Feldman, M.D.; Decision and Order, 39614-39618 [2017-17640]
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[FR Doc. 2017–17561 Filed 8–18–17; 8:45 am]
BILLING CODE 4338–11–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 13–39]
Masters Pharmaceutical, Inc.; Order
On August 14, 2017, the United States
Court of Appeals for the District of
Columbia Circuit granted the Agency’s
motion to dissolve the stay of my Order
of September 8, 2015, revoking DEA
Certificate of Registration No.
RD0277409 issued to Masters
Pharmaceutical, Inc. See Masters
Pharmaceutical, Inc., v. Drug
Enforcement Administration, No. 15–
1335 (D.C. Cir. Aug. 14, 2017) (Order).
Accordingly, I order that DEA
Certificate of Registration No.
RD0277409 issued to Masters
Pharmaceutical, Inc., be, and it hereby
is, revoked. I further order that any
application of Masters Pharmaceutical,
Inc., to renew or modify this
registration, be, and it hereby is, denied.
This Order is effective at 12:01 a.m. on
August 16, 2017.
Dated: August 15, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017–17638 Filed 8–18–17; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
asabaliauskas on DSKBBXCHB2PROD with NOTICES
[Docket No. 17–17]
Arnold E. Feldman, M.D.; Decision and
Order
On January 24, 2017, the Assistant
Administrator, Diversion Control
Division, issued an Order to Show
Cause to Arnold E. Feldman, M.D.
(Respondent), of Baton Rouge,
Louisiana. The Show Cause Order
proposed the revocation of
Respondent’s DEA Certificate of
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Registration No. BF4179203, and the
denial of his application for a
registration, on the ground that he
‘‘do[es] not have authority to handle
controlled substances in the State of
Louisiana, the [S]tate in which [he is]
registered . . . and [is] applying’’ for
registration. Show Cause Order, at 1.
As to the jurisdictional basis for the
proceeding, the Show Cause Order
alleged that Respondent is ‘‘registered
. . . as a data-waived/100 practitioner
in [s]chedules II–V pursuant to
[Registration No.] BF4179203 with a
registered address at 505 East Airport
[Blvd.], Baton Rouge, Louisiana,’’ and
that this registration does not expire
until ‘‘September 30, 2018.’’ Id. The
Order also alleged that ‘‘[o]n July 31,
2013, [Respondent] applied for a
separate . . . [r]egistration as a
practitioner in [s]chedules II–V with a
registered address of 505 East Airport
[Blvd.], Baton Rouge, Louisiana.’’ Id.
As to the substantive ground for the
proceeding, the Show Cause Order
alleged that Respondent’s ‘‘[a]uthority to
prescribe and administer controlled
substances in the State of Louisiana was
suspended effective October 19, 2016.’’
Id. at 2. The Order then asserted that as
a consequence of Respondent’s ‘‘lack of
authority to handle controlled
substances in the State of Louisiana,’’
Respondent’s registration is subject to
revocation and his application must be
denied. Id.
The Show Cause Order notified
Respondent of his right to request a
hearing on the allegation or to submit a
written statement while waiving his
right to a hearing and the procedure for
electing either option. Id. (citing 21 CFR
1301.43). In addition, the Order notified
Respondent of his right to submit a
corrective action plan pursuant to 21
U.S.C. 824(c)(2)(C). Id. at 2–3.
On February 23, 2017, Respondent
requested a hearing on the allegation.
Letter from Respondent to Hearing
Clerk, Office of Administrative Law
Judges (Feb. 23, 2017). The same day,
the matter was assigned to
Administrative Law Judge Charles Wm.
Dorman (hereinafter, ALJ), who issued
an order (also on Feb. 23) directing the
Government to file evidence supporting
the allegation by March 10, 2017 at 2
p.m., as well any motion for summary
disposition. Briefing Schedule For Lack
Of State Authority Allegations, at 1. The
ALJ’s order also provided that if the
Government moved for summary
disposition, Respondent’s opposition
was due by March 24, 2017 at 2 p.m. Id.
The next day, Respondent emailed the
ALJ’s law clerk seeking a continuance in
order to engage counsel. Email from
Respondent to ALJ’s law clerk (Feb. 24,
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2017). Respondent explained that he
was seeking the continuance because ‘‘I
have court cases pending in multiple
jurisdictions including a Mar 16
hearing, a Mar 20 hearing in Mississippi
and appeals in Louisiana and
Mississippi and California.’’ Id.
Respondent subsequently sought ‘‘ ‘a
continuance of at least 120 days’ due to
constant court appearances in
Louisiana, Mississippi, and California.’’
Order Denying The Respondent’s
Request For Continuance, at 1 (Feb. 27,
2017). Noting that his Briefing Schedule
order ‘‘provided the Respondent [with]
a date to respond, if the government files
such a motion,’’ the ALJ reasoned that
‘‘[b]ecause the government ha[d] not
filed a motion for summary disposition
. . . Respondent’s request . . . is
premature.’’ Id.
On March 2, 2017, the Government
filed its Motion for Summary
Disposition. As support for its motion,
the Government provided: (1) A copy of
Respondent’s registration; (2) his July
30, 2013 application for registration as
a hospital/clinic; (3) the Decision and
Order of the Louisiana State Board of
Medical Examiners (Aug. 15, 2016)
which ordered the suspension of his
medical license for a period of two years
to begin 30 days from the date of the
Order, and a subsequent Order of the
Board (Sept. 13, 2016), which extended
the commencement of the suspension
until October 14, 2016; (4) a copy of a
judgment issued by the Civil District
Court for the Parish of Orleans which
stayed the Board’s Order from October
14, 2016 through October 19, 2016 and
further ordered the Board to ‘‘show
cause’’ as to ‘‘why the stay should not
continue’’; and (5) a Declaration of a
Diversion Investigator as to various
matters, including that the Board’s
Order had gone into effect on October
19, 2016. Mot. for Summ. Disp., at
Appendix A–E.
On March 10, 2017, counsel for
Respondent entered a notice of
appearance. On March 23, 2017,
Respondent filed his Reply to the
Government’s Motion.
Therein, ‘‘Respondent
acknowledge[d] that his license to
practice medicine in . . . Louisiana has
been suspended in accordance with the
. . . Board of Medical Examiners’
Order.’’ Resp. Reply, at 1. Respondent
contended, however, ‘‘that there are
material questions of fact and law that
require resolution in a plenary,
evidentiary proceeding.’’
According to Respondent, these issues
were that he possesses ‘‘an active and
unrestricted’’ license to practice
medicine in Alabama and ‘‘a full and
unrestricted Alabama Controlled
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Substance Certificate.’’ Id. at 2.
Respondent argued that ‘‘none of the
cases cited by the Government’’ address
the situation ‘‘where a physician has
lost authority to practice in one state,
while retaining unrestricted authority in
another.’’ Id. at 3. He also argued that
the Agency’s longstanding rule that a
practitioner must possess authority
under the laws of the State in which he
engages in professional practice ‘‘is
based on the indiscriminate
intermingling of’’ 21 U.S.C. 823 and
824, ‘‘each of which deals with different
aspects of the control and enforcement
authority to dispense controlled
substances.’’ Id. at 3. He further
contended that while section 823
mandates that the Attorney General
register the applicant if he ‘‘is
authorized to dispense controlled
substances under the laws of the State
in which he practices,’’ ‘‘[t]he term
‘practitioner’ does not appear in’’
section 824 and the latter provision
‘‘does not speak to a physician’s
authorization to practice or dispense
under the laws of the state in which the
registrant practices.’’ Id. at 4.
In Respondent’s view, section 824
authorizes revocation ‘‘only if the
registrant is no longer authorized by
State law to engage in the dispensing of
controlled substances . . . under state
law.’’ Id. at 4–5. He also maintained that
‘‘[t]he fact that Congress employed the
term ‘practitioner’ in’’ section 823(f) but
not in section 824 ‘‘is a clear indication
that it did not intend to authorize
revocation or suspension of a
[registration] where a registrant has
continued to maintain authority to
practice and dispense under the laws of
any state.’’ Id.; see also id. at 5 & n.16
(‘‘Where Congress includes particular
language in one section of a statute but
omits it in another . . . it is generally
presumed that Congress acts
intentionally and purposely in the
disparate inclusion or exclusion.’’)
(quoting Keene Corp. v United States,
508 U.S. 200, 208 (1993) (other citation
omitted)).
Finally, Respondent contended that
‘‘[t]he Government’s indiscriminate
intermingling of [sections 823 and 824],
and its misinterpretation of 21 U.S.C.
824(a)(3) amount to a violation of [his]
constitutional right to travel.’’ Id. at 6.
He explained that ‘‘[t]heoretically, [he]
should be able to pack up and remove
himself and his practice from Louisiana
to . . . Alabama, where he is authorized
to practice medicine and dispense
controlled substances. But[] his
constitutional right to do so is impaired
by the Government’s misinterpretation
of its authority to revoke’’ his
registration. Id.
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On April 3, 2017, the ALJ granted the
Government’s Motion. The ALJ found
that ‘‘Respondent conceded in his Reply
that his Louisiana medical license is
currently suspended’’ and that ‘‘it is
undisputed that . . . Respondent lacks
state authorization to handle controlled
substances in Louisiana, where [he is]
registered, and where [he] has applied
for an additional’’ registration. R.D. 6.
Because Respondent is registered in
Louisiana, the ALJ found it irrelevant
that Respondent holds a license to
practice medicine in Alabama. Id. at 4.
The ALJ noted that ‘‘both the CSA’s
‘definition of the term ‘‘practitioner’’
and the registration provision applicable
to practitioners make clear that a
practitioner must be currently
authorized to dispense controlled
substances by the State in which he
practices in order to obtain and
maintain a registration,’ ’’ and that
Agency’s interpretation has been upheld
by the Fourth Circuit. Id. (quoting Rezik
A. Saqer, 81 FR 22122, 22125 (2016)
and citing Hooper v. Holder, 481 Fed.
App’x 826 (4th Cir. 2012)). The ALJ
further reasoned that ‘‘Respondent’s
analysis is counter to the way the DEA
has interpreted the CSA for nearly forty
years.’’ Id. at 5 (citing Saqer, 81 FR at
22126 (citing Frederick Marsh Blanton,
43 FR 27616 (1978))).
The ALJ also rejected Respondent’s
contention that the Agency’s
interpretation impairs his constitutional
right to travel. Id. at 5–6. The ALJ noted
that under DEA regulations, ‘‘ ‘[a]
separate registration is required for each
principal place of business.’ ’’ Id. at 5
(quoting 21 CFR 1301.12(a)). The ALJ
also noted that in 2006, the Agency
issued a final rule which ‘‘clarif[ied]
that a practitioner must obtain a
separate DEA registration for each state
in which he or she practices’’ and that
‘‘ ‘[j]ust as a license to practice medicine
in one State does not authorize a
practitioner to practice in any other
State, a DEA registration based on a
particular State’s license cannot
authorize dispensing controlled
substances in another State.’ ’’ Id. at 6
(quoting Clarification of Registration
Requirements for Individual
Practitioners, 71 FR 69478, 69479 (2006)
and citing Joe W. Morgan, 78 FR 61961,
61965 n.13 (2013)). The ALJ thus
explained that ‘‘Respondent is able to
pack up and remove himself and his
practice from Louisiana to Alabama—he
just cannot dispense or prescribe
controlled substances there unless he
first obtains a separate DEA registration
for his Alabama location in accordance
with 21 CFR 1301.12(a).’’ Id. The ALJ
thus recommended that I revoke
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39615
Respondent’s registration and deny any
pending applications. Id. at 7.
Respondent filed Exceptions to the
ALJ’s Recommended Decision. On May
1, 2017, the ALJ forwarded the record to
me for Final Agency Action.
Having considered the record and
Respondent’s Exceptions, I reject
Respondent’s various contentions and
adopt the ALJ’s Recommended
Decision. I will therefore also adopt the
ALJ’s recommendation that I revoke
Respondent’s registration and deny his
application. I make the following
findings.
Findings of Fact
Respondent is the holder of DEA
Certificate of Registration No.
BF4179203, pursuant to which he is
authorized to dispense controlled
substances in schedules II through V as
a practitioner, at the registered address
of: ‘‘The Pain Treatment CTR of B.R.,’’
505 E. Airport Blvd., Baton Rouge,
Louisiana. Mot. for Summ. Disp.,
Appendix A. Under this registration,
Respondent also holds an identification
number (XF4179203), id., pursuant to
which he is authorized to dispense or
prescribe schedule III through V
‘‘narcotic controlled substances which
have been approved by the Food and
Drug Administration . . . specifically
for use in maintenance or detoxification
treatment’’ to up to 100 patients. 21 CFR
1301.28(a). Respondent’s registration
(and identification number) do not
expire until September 30, 2018. Mot.
for Summ. Disp., Appendix A.
On July 30, 2013, Respondent
submitted an application to register an
entity known as ‘‘First Choice Surgery
Center of BA’’ as a Hospital/Clinic, at
the same address as above. Id. Appendix
B. This application remains pending
before the Agency.
Respondent also holds a medical
license issued by the Louisiana State
Board of Medical Examiners. However,
on August 15, 2016, the Board
suspended his medical license for a
period of two years; this Order became
effective on or about October 19,
2016.1 See Mot. for Summ. Disp.,
Appendices B & E; Resp.’s reply, at 1.
Accordingly, I find that Respondent
1 While ‘‘[t]he suspension was to commence after
[30] days,’’ the Board, following flooding in the
Baton Rouge area, extended the effective date of the
suspension until October 14, 2016. Mot., Appendix
C, at 1. On October 12, 2016, the Civil District Court
for the Parish of Orleans stayed enforcement of the
Board’s Order through October 19, 2016, and
directed the Board to show cause on October 19,
2016 as to ‘‘why the stay should not continue.’’
Mot., Appendix D, at 1. However, it is undisputed
that the court lifted the stay and that the Board’s
Order has gone into effect. Mot., Appendix E, at 2
(DI Declaration); see also Resp.’s Reply at 1.
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currently lacks authority to dispense
controlled substances under the laws of
the State of Louisiana.
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the
Attorney General is authorized to
suspend or revoke a registration issued
under section 823 of the Controlled
Substances Act (CSA), ‘‘upon a finding
that the registrant . . . has had his State
license . . . suspended [or] revoked
. . . by competent State authority and is
no longer authorized by State law to
engage in the . . . dispensing of
controlled substances.’’ With respect to
a practitioner, DEA has long 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 obtaining
and maintaining a practitioner’s
registration. See, e.g., James L. Hooper,
76 FR 71371 (2011), pet. for rev. denied,
481 Fed. Appx. 826 (4th Cir. 2012);
Frederick Marsh Blanton, 43 FR 27616
(1978).
Respondent acknowledges that the
Agency’s precedents ‘‘do indeed reveal
a consistent [and in his view] uncritical
repetition of th[is] claim, to an extent
. . . that the proposition has come to
attain near sacrosanct status.’’
Exceptions, at 2. As he did before the
ALJ, he contends that the Agency’s rule
‘‘is based on the indiscriminate
intermingling of’’ the registration
requirements of section 823 and the
suspension/revocation authority of
section 824. Id. at 3. He again argues
that because ‘‘the term ‘practitioner’ is
employed solely in 21 U.S.C. 823’’ and
‘‘does not appear in section 824’’ this
‘‘is a clear indication that [Congress] did
not intend to authorize an automatic,
summary revocation . . . where a
registrant has continued to maintain
authority to practice and dispense under
the laws of any state.’’ Id. at 4.
Respondent is mistaken. As the
Agency has repeatedly noted, the
Agency’s rule actually derives from the
text of section 802(21), which defines
the term ‘‘practitioner,’’ and section
823(f). Notably, in section 802(21),
Congress defined ‘‘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). The text of
this provision makes clear that a
physician is not a practitioner within
the meaning of the CSA if he is not
‘‘licensed, registered or otherwise
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permitted, by the jurisdiction in which
he practices . . . to dispense [or]
administer . . . a controlled substance
in the course of professional practice.’’
Id.
To the same effect, Congress, in
setting the requirements for obtaining a
practitioner’s registration, directed 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).
Thus, based on these provisions, the
Agency held nearly forty years ago that
‘‘[s]tate authorization to dispense or
otherwise handle controlled substances
is a prerequisite to the issuance and
maintenance of a Federal controlled
substances registration.’’ Blanton, 43 FR
at 27617 (revoking physician’s
registration based on one-year
suspension of his state license)
(emphasis added).
As the ALJ recognized, the CSA also
provides that ‘‘[a] separate registration
shall be required at each principal place
of business or professional practice
where the applicant . . . dispenses
controlled substances.’’ 21 U.S.C.
822(e).2 Based on this provision, the
Agency has further explained that,
because the issuance of a registration is
dependent on a practitioner having
authority to dispense controlled
substances under the laws of a
particular state, a registration issued for
a location in one state cannot authorize
the practitioner to engage in controlled
substance dispensing in another state.
See Clarification of Registration
Requirements for Individual
Practitioners, 71 FR 69478 (2006); 21
CFR 1301.12(a) & (b)(3). See also United
States v. Moore, 423 U.S. 122, 140–41
(1975) (‘‘Registration of physicians and
other practitioners is mandatory if the
applicant is authorized to dispense
drugs . . . under the law of the State in
which he practices. [21 U.S.C. ] Sec.
823(f). In the case of a physician, this
scheme contemplates that he is
authorized by the State to practice
medicine and to dispense drugs in
connection with his professional
practice.’’).3
2 See also 21 U.S.C. 822(b) (‘‘Persons registered by
the Attorney General . . . to . . . dispense
controlled substances . . . are authorized to possess
. . . or dispense such substances . . . to the extent
authorized by their registration and in conformity
with the other provisions of this subchapter.’’).
3 While the CSA was amended in 1984 to provide
the Agency with authority to deny a practitioner’s
registration on public interest grounds, the
requirement that a practitioner be ‘‘authorized to
dispense . . . controlled substances under the laws
of the States in which he practices,’’ 21 U.S.C.
823(f), was unaltered by this legislation.
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Notably, while Respondent holds a
medical license in Alabama, his
registration authorizes him to dispense
controlled substances only in the State
of Louisiana. Moreover, the Show Cause
Order proposes only the revocation of
this registration4 and the denial of his
application for an additional registration
in Louisiana. Because Congress has
clearly mandated that a practitioner
possess state authority in order to be
deemed a practitioner under the Act,
and Respondent is no longer authorized
to dispense controlled substances under
the laws of Louisiana, the State in
which he is registered and has applied
for an additional registration, revocation
of his registration and denial of his
application are the appropriate
sanctions. See, e.g., Hooper, 76 FR at
71371–72; Sheran Arden Yeates, 71 FR
39130, 39131 (2006); Dominick A. Ricci,
58 FR 51104, 51105 (1993); Bobby
Watts, 53 FR 11919, 11920 (1988);
Blanton, 43 FR at 27616.
As noted above, Respondent contends
that Congress’ use of the word
‘‘registrant’’ rather the word
‘‘practitioner’’ in section 824 is a clear
indication that it did not intend to
authorize an automatic, summary
revocation . . . where a registrant has
continued to maintain authority to
practice and dispense under the laws of
any state.’’ Exceptions, at 4. A
practitioner is, however, a particular
category of registrant and thus falls
within section 824(a). Given the
provisions of section 802(21) and 823(f),
it is not clear why Congress needed to
use the word ‘‘practitioner’’ in section
824(a) to authorize the Agency to
effectuate the policy expressed by
sections 802(21) and 823(f). Moreover,
Respondent ignores that there is a good
reason for why Congress used different
language in sections 823(f) and 824(a) to
describe the class of persons who are
subject to each provision, and this
reason provides no support for
Respondent’s contention.
Section 823(f) is specifically
applicable to those applicants seeking
registration as a practitioner, which is
just one of eight different categories of
registration under the CSA. See
generally 21 U.S.C. 823. By contrast,
section 824(a), which authorizes the
imposition of sanctions against a
registrant based on any one of five
findings, is applicable to all categories
of registrants under the CSA, including
Respondent. See, e.g., James L. Hooper,
4 There is no evidence in the record as to whether
Respondent holds a DEA registration in Alabama.
Nor does this matter, because the Government
proposes only the revocation of his Louisiana
registration and the denial of his application for a
second registration in that State.
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76 FR 71371 (2011), pet. for rev. denied
Hooper v. Holder, 481 Fed. Appx. 826,
829 (4th Cir. 2012).
As explained above, the Agency’s rule
that revocation is warranted whenever a
practitioner is no longer authorized to
dispense controlled substances under
the laws of the state in which he
engages in professional practice is
derived from the specific provisions of
the Act which define the term
‘‘practitioner’’ and set forth the
registration requirements which are
specifically applicable to
practitioners.5 Hooper, 76 FR at 71371–
72. Indeed, were I to adopt
Respondent’s view, he would be
allowed to maintain his registration
even though his lack of state authority
bars him from obtaining a registration in
Louisiana in the first place. 21 U.S.C.
823(f).
Moreover, under DEA regulations, a
practitioner’s registration is good for a
period of three years, after which a
practitioner must submit a renewal
application. Yet that renewal
application remains subject to section
823(f), which requires that ‘‘the
applicant is authorized to dispense . . .
controlled substances under the laws of
the State in which he practices.’’
Respondent’s view leads to the illogical
result that a practitioner would need to
hold state authority to obtain his initial
registration and any subsequent renewal
of the registration, but would not need
to hold state authority during the
intervening period between the granting
of his initial application and the
granting of his renewal application.
I reject Respondent’s contention and
adhere to the Agency’s longstanding and
consistent interpretation of the Act,
which has been affirmed by two courts
of appeals. See Hooper v. Holder, 481
Fed. Appx. at 828; Maynard v. DEA, 117
Fed. Appx. 941, 945 (5th Cir. 2004). As
the Fourth Circuit explained in Hooper,
in rejecting the practitioner’s contention
that the agency’s revocation of his
registration ignored the discretion
5 Section 824(a)(3) grants authority applicable to
all categories of DEA registrants (and not only
practitioners) as well as each of the enumerated
findings. As explained in Hooper, this general grant
of authority in imposing a sanction must be
reconciled with the CSA’s specific provisions
which mandate that a practitioner hold authority
under state law in order to obtain and maintain a
DEA registration. 76 FR, at 71371–72 (quoting
Gozlon-Peretz v. United States, 498 U.S. 395, 407
(1991) (‘‘A specific provision controls over one of
more general application.’’) and Bloate v. United
States, 130 S.Ct. 1345, 1354 (2010) (quoting D.
Ginsberg & Sons, Inc., v. Popkin, 285 U.S. 204, 208
(1932) (‘‘General language of a statutory provision,
although broad enough to include it, will not be
held to apply to a matter specifically dealt with in
another part of the same enactment.’’)).
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granted by section 824 and read the
suspension option out of the statute:
We find Hooper’s contention
unconvincing. Section 824(a) does state that
the [Agency] may ‘‘suspend or revoke’’ a
registration, but the statute provides for this
sanction in five different circumstances, only
one of which is loss of a State license.
Because § 823(f) and § 802(21) make clear
that a practitioner’s registration is dependent
upon the practitioner having state authority
to dispense controlled substances, the
[Agency’s] decision to construe § 824(a)(3) as
mandating revocation upon suspension of a
state license is not an unreasonable
interpretation of the CSA. The [Agency’s]
decision does not ‘‘read[] the suspension
option’’ out of the statute, because that
option may still be available for the other
circumstances enumerated in § 824(a).
481 Fed. Appx., at 828. See also
Maynard, 117 Fed. Appx. at 945 (5th
Cir. 2004) (upholding revocation of DEA
registration after Texas DPS summarily
suspended practitioner’s controlled
substance registration, noting that the
Agency ‘‘has construed the CSA to
require revocation when a registrant no
longer possesses valid state authority to
handle controlled substances’’; ‘‘We
agree with [the] argument that it may
have been arbitrary and capricious had
the DEA failed to revoke [the
physician’s] registration under the
circumstances.’’).
Respondent makes an additional
argument beyond that made in Hooper.
He contends that ‘‘[it] is noteworthy that
[section] 824(a) . . . employs the word
‘may’ in authorizing the Attorney
General to revoke or suspend a
registration, when among other factors,
the registrant is no longer authorized by
State law to engage in the dispensing of
controlled substances.’’ Exceptions, at 5.
In Respondent’s view, ‘‘under [section]
824(a), the loss of state authority is only
one of several factors that may result in
suspension or revocation of a
practitioner’s DEA registration.’’ Id. He
thus maintains that ‘‘[t]he correct
interpretation is that [section] 802(21)
and [section] 823(f) require state
authority in order for the Administrator
to grant an application for registration,
but [section] 824(a)(3) only renders a
loss of state authority a discretionary
factor in determining whether to
suspend or revoke an existing
registration.’’ Id. Respondent thus
contends that Agency’s ‘‘practice of
deciding these cases on summary
disposition without providing [him
with] the opportunity to present other
evidence supporting continued
registration not only violates the plain
language of the [CSA] . . . it also denies
[him] the due process rights to which he
is entitled under the’’ Administrative
Procedure Act. Id. at 6.
PO 00000
Frm 00062
Fmt 4703
Sfmt 4703
39617
Respondent cites no authority for his
contention that the various grounds set
forth in section 824(a) pursuant to
which the Agency is authorized to
suspend or revoke a registration are
merely ‘‘discretionary factors’’ in the
same manner as are the public interest
factors of section 823. Indeed, his
argument is refuted by the texts of
section 823(f) and 824(a) and the history
of the CSA.
Notably, section 823(f) instructs that
‘‘[i]n determining the public interest,
the following factors shall be
considered’’ and then lists the five
factors. 21 U.S.C. 823(f). By contrast,
section 824(a) makes no reference to
‘‘factors.’’ Rather, the provision begins
with the word ‘‘Grounds’’ and then
states that ‘‘[a] registration pursuant to
section 823 of this title . . . may be
suspended or revoked by the Attorney
General upon a finding that’’ one of the
five different grounds apply to the
registrant.6 Id. § 824(a).
Had Congress intended that the
various findings set forth in section
824(a) be treated as ‘‘discretionary
factors,’’ it would have done so by using
language similar to that it used in
section 823(f). See Jama v. ICE, 543 U.S.
335, 341 (2005) (‘‘We do not lightly
assume that Congress has omitted from
its adopted text requirements that it
nonetheless intends to apply, and our
reluctance is even greater when
Congress has shown elsewhere in the
same statute that it knows how to make
such a requirement manifest.’’).
Rather, the findings enumerated in
section 824(a) are grants of authority,
each of which provides an independent
and adequate ground to impose a
sanction on a registrant. See Alfred S.
Santucci, 67 FR 68688 (2002) (‘‘Loss of
state authority is an independent
ground to revoke a practitioner’s
registration under 21 U.S.C. 824(a)(3).’’);
VI Pharmacy, Rushdi Z. Salem, 69 FR
5584, 5585 (2004) (‘‘Pursuant to 21
U.S.C. 824(a)(1), falsification of a DEA
application constitutes independent
grounds to revoke a registration.’’);
6 As noted above, Respondent invokes the canon
of statutory construction that ‘‘[w]here Congress
includes particular language in one section of a
statute but omits it in another . . . , it is generally
presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion’’;
he argues that it is significant that while Congress
used the word ‘‘practitioner’’ in section 823, it used
the word ‘‘registrant’’ in section 824(a). Exceptions,
at 4 (quoting Keene Corp., 508 U.S. at 208 (other
citation omitted)). Contrary to Respondent’s
contention, the correct comparison is between the
language of section 823(f), which states that ‘‘[i]n
determining the public interest, the following
factors shall be considered,’’ and the language of
section 824(a), which authorizes the Agency to
suspend or revoke a registration upon making one
of the five enumerated ‘‘finding[s].’’
E:\FR\FM\21AUN1.SGM
21AUN1
39618
Federal Register / Vol. 82, No. 160 / Monday, August 21, 2017 / Notices
Lazaro Guerra, 68 FR 15226, 15227
(2003) (‘‘mandatory exclusion from
participation in the Medicare program
pursuant to 42 U.S.C. 1320a–7(a) . . . is
an independent ground for revoking a
DEA registration’’ (citing 21 U.S.C.
824(a)(5)). See also Richard B. Lynch,
Jr., 50 FR 7844, 7845 (1985) (Agency
made findings under section 824(a) (1),
824(a)(2), and 824(a)(3); ‘‘The
Administrator concludes that there are
three independent statutory grounds for
denial of the subject application.’’).
The Agency’s interpretation is
buttressed by the CSA’s legislative
history. As originally enacted, the CSA
granted the Attorney General authority
to suspend or revoke a registration:
upon a finding that the registrant—
asabaliauskas on DSKBBXCHB2PROD with NOTICES
(1) has materially falsified any application
filed pursuant to or required by this title [the
CSA] or title III [the Controlled Substance
Import Export Act (CSIEA), 21 U.S.C. 951–
971];
(2) has been convicted of a felony under
[the CSA or CSIEA] or any other law of the
United States, or of any State, relating to any
substance defined in this title as a controlled
substance; or
(3) 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.
Pub. L. 91–513, § 304, 84 Stat. 1255
(codified at 21 U.S.C. 824(a)).7
Describing this provision, the House
Report explained that ‘‘[s]ubsection (a)
of this section empowers the Attorney
General to revoke or suspend any
registration issued under this title if it
is found that the holder has falsified his
application, lost his State license, or has
been convicted of a felony violation
relating to any controlled substance.’’ H.
Rep. No. 91–1444 (1970), as reprinted in
1970 U.S.C.C.A.N. 4566, 4608–09.
Absent from this statement is any
discussion that in determining the
sanction, the Attorney General was
required to consider not only whether a
registrant had lost his state authority,
but also whether he had also materially
falsified his application or had been
convicted of a felony related to a
controlled substance.
Moreover, while in 1984, Congress
amended the CSA by granting the
Attorney General authority to deny an
application for a practitioner’s
registration and to revoke an existing
registration on public interest grounds,
it did so to increase the Agency’s
7 Cf. Reiter v. Sonotone Corp., 442 U.S.C. 330, 339
(1979) (‘‘Canons of construction ordinarily suggest
that terms connected by a disjunctive be given
separate meanings, unless the context dictates
otherwise[.]) (citing FCC v. Pacifica Foundation,
438 U.S. 726, 739–40 (1978)).
VerDate Sep<11>2014
20:00 Aug 18, 2017
Jkt 241001
authority to respond to the ‘‘[i]mproper
diversion of controlled substances by
practitioners,’’ which Congress
explained ‘‘is one of the most serious
aspects of the drug abuse problem.’’ H.
Rep. No. 98–1030, at 266 (1984), as
reprinted in 1984 U.S.C.C.A.N. 3182,
3448. The House Report explained that
‘‘effective Federal actions against
practitioners has been severely inhibited
by the limited authority in current law
to deny or revoke practitioner
registrations’’ and that ‘‘the current
limited grounds for revoking or denying
a practitioner’s registration have been
cited as contributing to the problem of
diversion of dangerous drugs.’’ Id.
Finding that ‘‘the overly limited bases in
current law for denial or revocation of
a practitioner’s registration do not
operate in the public interest,’’ Congress
amended section 823(f) ‘‘to expand the
authority of the Attorney General to
deny a practitioner’s registration
application’’ based upon a finding ‘‘that
registration would be ‘inconsistent with
the public interest.’’’ Id. (emphasis
added).
While Congress also amended section
‘‘824(a) to add to the current bases for
denial, revocation, or suspension of
registration a finding that registration
would be inconsistent with the public
interest on the grounds specified in
[section] 823, which will include
consideration of the new factors added
by’’ the amendment, id. at 266–67,
Congress did not otherwise alter the text
of section 824(a), which makes clear
that the various paragraphs of this
provision are findings, each of which
provides an independent and adequate
ground to support agency action against
a registration, and not discretionary
factors to be considered by the Agency.
Indeed, Respondent points to nothing in
the language of section 824 or the CSA’s
legislative history to support his
position, which would fundamentally
alter the scope of the Agency’s authority
under section 824.
Nor is there any merit to Respondent’s
contention that denying him ‘‘the
opportunity to present other evidence
supporting [his] continued registration’’
denies him due process. Exceptions, at
6. As explained above, in a proceeding
brought against a practitioner under
section 824(a)(3), the only fact that is
material is whether the practitioner is
currently authorized to dispense
controlled substances under laws of the
state in which he practices and is
registered. Because ‘‘other evidence
supporting [his] continued registration’’
is not material to the outcome of this
proceeding, and Respondent was
provided with the opportunity to put
forward evidence disputing the only
PO 00000
Frm 00063
Fmt 4703
Sfmt 4703
material fact at issue, I reject his
contention that the use of summary
disposition denied him due process. See
Rezik A. Saqer, 81 FR 22122, 22124
(2016) (citing cases).
I therefore reject each of Respondent’s
Exceptions. Based on the ALJ’s finding
that Respondent is not currently
authorized to dispense controlled
substances in Louisiana, the State in
which he holds the DEA registration at
issue in this proceeding and seeks an
additional registration, I will adopt the
ALJ’s recommended order that I revoke
his registration and deny his
application.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a), as well as 28 CFR
0.100(b), I order that DEA Certificate of
Registration No. BF4179203 issued to
Arnold E. Feldman, M.D., as well as
DATA Identification No. XF4179203,
be, and they hereby are, revoked. I
further order that the Application of
Arnold E. Feldman, M.D., for a
registration as a Hospital/Clinic, as well
any application to renew the above the
registration or for any other registration
in the State of Louisiana, be, and it
hereby is, denied. This ORDER is
effective immediately.8
Dated: August 14, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017–17640 Filed 8–18–17; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Notice of Lodging Proposed Consent
Decree
In accordance with Departmental
Policy, 28 CFR 50.7, notice is hereby
given that a proposed Consent Decree in
United States v. Duarte Nursery, Inc.
and John Duarte, Civil Action Number
2:13–cv–02095–KJM–DB, was lodged
with the United States District Court for
the Eastern District of California,
Sacramento District, on August 15,
2017.
This proposed Consent Decree
concerns an answer and counterclaim
filed by the United States on May 7,
2014, against Duarte Nursery, Inc. and
8 Based on the Board’s findings with respect to
the sixth charge of the Administrative Complaint,
which found that he violated state law by
prescribing, dispensing, or administering legally
controlled substances or any dependency-inducing
medication without legitimate medical justification
thereof or in other than a legal or legitimate
manner,’’ I find that the public interest necessitates
that this Order be effective immediately. Mot. for
Summ. Disp., Appendix C, at 13, 15; see also 21
CFR 1316.67.
E:\FR\FM\21AUN1.SGM
21AUN1
Agencies
[Federal Register Volume 82, Number 160 (Monday, August 21, 2017)]
[Notices]
[Pages 39614-39618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17640]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 17-17]
Arnold E. Feldman, M.D.; Decision and Order
On January 24, 2017, the Assistant Administrator, Diversion Control
Division, issued an Order to Show Cause to Arnold E. Feldman, M.D.
(Respondent), of Baton Rouge, Louisiana. The Show Cause Order proposed
the revocation of Respondent's DEA Certificate of Registration No.
BF4179203, and the denial of his application for a registration, on the
ground that he ``do[es] not have authority to handle controlled
substances in the State of Louisiana, the [S]tate in which [he is]
registered . . . and [is] applying'' for registration. Show Cause
Order, at 1.
As to the jurisdictional basis for the proceeding, the Show Cause
Order alleged that Respondent is ``registered . . . as a data-waived/
100 practitioner in [s]chedules II-V pursuant to [Registration No.]
BF4179203 with a registered address at 505 East Airport [Blvd.], Baton
Rouge, Louisiana,'' and that this registration does not expire until
``September 30, 2018.'' Id. The Order also alleged that ``[o]n July 31,
2013, [Respondent] applied for a separate . . . [r]egistration as a
practitioner in [s]chedules II-V with a registered address of 505 East
Airport [Blvd.], Baton Rouge, Louisiana.'' Id.
As to the substantive ground for the proceeding, the Show Cause
Order alleged that Respondent's ``[a]uthority to prescribe and
administer controlled substances in the State of Louisiana was
suspended effective October 19, 2016.'' Id. at 2. The Order then
asserted that as a consequence of Respondent's ``lack of authority to
handle controlled substances in the State of Louisiana,'' Respondent's
registration is subject to revocation and his application must be
denied. Id.
The Show Cause Order notified Respondent of his right to request a
hearing on the allegation or to submit a written statement while
waiving his right to a hearing and the procedure for electing either
option. Id. (citing 21 CFR 1301.43). In addition, the Order notified
Respondent of his right to submit a corrective action plan pursuant to
21 U.S.C. 824(c)(2)(C). Id. at 2-3.
On February 23, 2017, Respondent requested a hearing on the
allegation. Letter from Respondent to Hearing Clerk, Office of
Administrative Law Judges (Feb. 23, 2017). The same day, the matter was
assigned to Administrative Law Judge Charles Wm. Dorman (hereinafter,
ALJ), who issued an order (also on Feb. 23) directing the Government to
file evidence supporting the allegation by March 10, 2017 at 2 p.m., as
well any motion for summary disposition. Briefing Schedule For Lack Of
State Authority Allegations, at 1. The ALJ's order also provided that
if the Government moved for summary disposition, Respondent's
opposition was due by March 24, 2017 at 2 p.m. Id.
The next day, Respondent emailed the ALJ's law clerk seeking a
continuance in order to engage counsel. Email from Respondent to ALJ's
law clerk (Feb. 24, 2017). Respondent explained that he was seeking the
continuance because ``I have court cases pending in multiple
jurisdictions including a Mar 16 hearing, a Mar 20 hearing in
Mississippi and appeals in Louisiana and Mississippi and California.''
Id. Respondent subsequently sought `` `a continuance of at least 120
days' due to constant court appearances in Louisiana, Mississippi, and
California.'' Order Denying The Respondent's Request For Continuance,
at 1 (Feb. 27, 2017). Noting that his Briefing Schedule order
``provided the Respondent [with] a date to respond, if the government
files such a motion,'' the ALJ reasoned that ``[b]ecause the government
ha[d] not filed a motion for summary disposition . . . Respondent's
request . . . is premature.'' Id.
On March 2, 2017, the Government filed its Motion for Summary
Disposition. As support for its motion, the Government provided: (1) A
copy of Respondent's registration; (2) his July 30, 2013 application
for registration as a hospital/clinic; (3) the Decision and Order of
the Louisiana State Board of Medical Examiners (Aug. 15, 2016) which
ordered the suspension of his medical license for a period of two years
to begin 30 days from the date of the Order, and a subsequent Order of
the Board (Sept. 13, 2016), which extended the commencement of the
suspension until October 14, 2016; (4) a copy of a judgment issued by
the Civil District Court for the Parish of Orleans which stayed the
Board's Order from October 14, 2016 through October 19, 2016 and
further ordered the Board to ``show cause'' as to ``why the stay should
not continue''; and (5) a Declaration of a Diversion Investigator as to
various matters, including that the Board's Order had gone into effect
on October 19, 2016. Mot. for Summ. Disp., at Appendix A-E.
On March 10, 2017, counsel for Respondent entered a notice of
appearance. On March 23, 2017, Respondent filed his Reply to the
Government's Motion.
Therein, ``Respondent acknowledge[d] that his license to practice
medicine in . . . Louisiana has been suspended in accordance with the .
. . Board of Medical Examiners' Order.'' Resp. Reply, at 1. Respondent
contended, however, ``that there are material questions of fact and law
that require resolution in a plenary, evidentiary proceeding.''
According to Respondent, these issues were that he possesses ``an
active and unrestricted'' license to practice medicine in Alabama and
``a full and unrestricted Alabama Controlled
[[Page 39615]]
Substance Certificate.'' Id. at 2. Respondent argued that ``none of the
cases cited by the Government'' address the situation ``where a
physician has lost authority to practice in one state, while retaining
unrestricted authority in another.'' Id. at 3. He also argued that the
Agency's longstanding rule that a practitioner must possess authority
under the laws of the State in which he engages in professional
practice ``is based on the indiscriminate intermingling of'' 21 U.S.C.
823 and 824, ``each of which deals with different aspects of the
control and enforcement authority to dispense controlled substances.''
Id. at 3. He further contended that while section 823 mandates that the
Attorney General register the applicant if he ``is authorized to
dispense controlled substances under the laws of the State in which he
practices,'' ``[t]he term `practitioner' does not appear in'' section
824 and the latter provision ``does not speak to a physician's
authorization to practice or dispense under the laws of the state in
which the registrant practices.'' Id. at 4.
In Respondent's view, section 824 authorizes revocation ``only if
the registrant is no longer authorized by State law to engage in the
dispensing of controlled substances . . . under state law.'' Id. at 4-
5. He also maintained that ``[t]he fact that Congress employed the term
`practitioner' in'' section 823(f) but not in section 824 ``is a clear
indication that it did not intend to authorize revocation or suspension
of a [registration] where a registrant has continued to maintain
authority to practice and dispense under the laws of any state.'' Id.;
see also id. at 5 & n.16 (``Where Congress includes particular language
in one section of a statute but omits it in another . . . it is
generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.'') (quoting Keene Corp. v United
States, 508 U.S. 200, 208 (1993) (other citation omitted)).
Finally, Respondent contended that ``[t]he Government's
indiscriminate intermingling of [sections 823 and 824], and its
misinterpretation of 21 U.S.C. 824(a)(3) amount to a violation of [his]
constitutional right to travel.'' Id. at 6. He explained that
``[t]heoretically, [he] should be able to pack up and remove himself
and his practice from Louisiana to . . . Alabama, where he is
authorized to practice medicine and dispense controlled substances.
But[] his constitutional right to do so is impaired by the Government's
misinterpretation of its authority to revoke'' his registration. Id.
On April 3, 2017, the ALJ granted the Government's Motion. The ALJ
found that ``Respondent conceded in his Reply that his Louisiana
medical license is currently suspended'' and that ``it is undisputed
that . . . Respondent lacks state authorization to handle controlled
substances in Louisiana, where [he is] registered, and where [he] has
applied for an additional'' registration. R.D. 6. Because Respondent is
registered in Louisiana, the ALJ found it irrelevant that Respondent
holds a license to practice medicine in Alabama. Id. at 4. The ALJ
noted that ``both the CSA's `definition of the term ``practitioner''
and the registration provision applicable to practitioners make clear
that a practitioner must be currently authorized to dispense controlled
substances by the State in which he practices in order to obtain and
maintain a registration,' '' and that Agency's interpretation has been
upheld by the Fourth Circuit. Id. (quoting Rezik A. Saqer, 81 FR 22122,
22125 (2016) and citing Hooper v. Holder, 481 Fed. App'x 826 (4th Cir.
2012)). The ALJ further reasoned that ``Respondent's analysis is
counter to the way the DEA has interpreted the CSA for nearly forty
years.'' Id. at 5 (citing Saqer, 81 FR at 22126 (citing Frederick Marsh
Blanton, 43 FR 27616 (1978))).
The ALJ also rejected Respondent's contention that the Agency's
interpretation impairs his constitutional right to travel. Id. at 5-6.
The ALJ noted that under DEA regulations, `` `[a] separate registration
is required for each principal place of business.' '' Id. at 5 (quoting
21 CFR 1301.12(a)). The ALJ also noted that in 2006, the Agency issued
a final rule which ``clarif[ied] that a practitioner must obtain a
separate DEA registration for each state in which he or she practices''
and that `` `[j]ust as a license to practice medicine in one State does
not authorize a practitioner to practice in any other State, a DEA
registration based on a particular State's license cannot authorize
dispensing controlled substances in another State.' '' Id. at 6
(quoting Clarification of Registration Requirements for Individual
Practitioners, 71 FR 69478, 69479 (2006) and citing Joe W. Morgan, 78
FR 61961, 61965 n.13 (2013)). The ALJ thus explained that ``Respondent
is able to pack up and remove himself and his practice from Louisiana
to Alabama--he just cannot dispense or prescribe controlled substances
there unless he first obtains a separate DEA registration for his
Alabama location in accordance with 21 CFR 1301.12(a).'' Id. The ALJ
thus recommended that I revoke Respondent's registration and deny any
pending applications. Id. at 7.
Respondent filed Exceptions to the ALJ's Recommended Decision. On
May 1, 2017, the ALJ forwarded the record to me for Final Agency
Action.
Having considered the record and Respondent's Exceptions, I reject
Respondent's various contentions and adopt the ALJ's Recommended
Decision. I will therefore also adopt the ALJ's recommendation that I
revoke Respondent's registration and deny his application. I make the
following findings.
Findings of Fact
Respondent is the holder of DEA Certificate of Registration No.
BF4179203, pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner, at the
registered address of: ``The Pain Treatment CTR of B.R.,'' 505 E.
Airport Blvd., Baton Rouge, Louisiana. Mot. for Summ. Disp., Appendix
A. Under this registration, Respondent also holds an identification
number (XF4179203), id., pursuant to which he is authorized to dispense
or prescribe schedule III through V ``narcotic controlled substances
which have been approved by the Food and Drug Administration . . .
specifically for use in maintenance or detoxification treatment'' to up
to 100 patients. 21 CFR 1301.28(a). Respondent's registration (and
identification number) do not expire until September 30, 2018. Mot. for
Summ. Disp., Appendix A.
On July 30, 2013, Respondent submitted an application to register
an entity known as ``First Choice Surgery Center of BA'' as a Hospital/
Clinic, at the same address as above. Id. Appendix B. This application
remains pending before the Agency.
Respondent also holds a medical license issued by the Louisiana
State Board of Medical Examiners. However, on August 15, 2016, the
Board suspended his medical license for a period of two years; this
Order became effective on or about October 19, 2016.\1\ See Mot. for
Summ. Disp., Appendices B & E; Resp.'s reply, at 1. Accordingly, I find
that Respondent
[[Page 39616]]
currently lacks authority to dispense controlled substances under the
laws of the State of Louisiana.
---------------------------------------------------------------------------
\1\ While ``[t]he suspension was to commence after [30] days,''
the Board, following flooding in the Baton Rouge area, extended the
effective date of the suspension until October 14, 2016. Mot.,
Appendix C, at 1. On October 12, 2016, the Civil District Court for
the Parish of Orleans stayed enforcement of the Board's Order
through October 19, 2016, and directed the Board to show cause on
October 19, 2016 as to ``why the stay should not continue.'' Mot.,
Appendix D, at 1. However, it is undisputed that the court lifted
the stay and that the Board's Order has gone into effect. Mot.,
Appendix E, at 2 (DI Declaration); see also Resp.'s Reply at 1.
---------------------------------------------------------------------------
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized
to suspend or revoke a registration issued under section 823 of the
Controlled Substances Act (CSA), ``upon a finding that the registrant .
. . has had his State license . . . suspended [or] revoked . . . by
competent State authority and is no longer authorized by State law to
engage in the . . . dispensing of controlled substances.'' With respect
to a practitioner, DEA has long 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 obtaining and maintaining a practitioner's registration.
See, e.g., James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied,
481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, 43 FR
27616 (1978).
Respondent acknowledges that the Agency's precedents ``do indeed
reveal a consistent [and in his view] uncritical repetition of th[is]
claim, to an extent . . . that the proposition has come to attain near
sacrosanct status.'' Exceptions, at 2. As he did before the ALJ, he
contends that the Agency's rule ``is based on the indiscriminate
intermingling of'' the registration requirements of section 823 and the
suspension/revocation authority of section 824. Id. at 3. He again
argues that because ``the term `practitioner' is employed solely in 21
U.S.C. 823'' and ``does not appear in section 824'' this ``is a clear
indication that [Congress] did not intend to authorize an automatic,
summary revocation . . . where a registrant has continued to maintain
authority to practice and dispense under the laws of any state.'' Id.
at 4.
Respondent is mistaken. As the Agency has repeatedly noted, the
Agency's rule actually derives from the text of section 802(21), which
defines the term ``practitioner,'' and section 823(f). Notably, in
section 802(21), Congress defined ``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).
The text of this provision makes clear that a physician is not a
practitioner within the meaning of the CSA if he is not ``licensed,
registered or otherwise permitted, by the jurisdiction in which he
practices . . . to dispense [or] administer . . . a controlled
substance in the course of professional practice.'' Id.
To the same effect, Congress, in setting the requirements for
obtaining a practitioner's registration, directed 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). Thus, based on
these provisions, the Agency held nearly forty years ago that ``[s]tate
authorization to dispense or otherwise handle controlled substances is
a prerequisite to the issuance and maintenance of a Federal controlled
substances registration.'' Blanton, 43 FR at 27617 (revoking
physician's registration based on one-year suspension of his state
license) (emphasis added).
As the ALJ recognized, the CSA also provides that ``[a] separate
registration shall be required at each principal place of business or
professional practice where the applicant . . . dispenses controlled
substances.'' 21 U.S.C. 822(e).\2\ Based on this provision, the Agency
has further explained that, because the issuance of a registration is
dependent on a practitioner having authority to dispense controlled
substances under the laws of a particular state, a registration issued
for a location in one state cannot authorize the practitioner to engage
in controlled substance dispensing in another state. See Clarification
of Registration Requirements for Individual Practitioners, 71 FR 69478
(2006); 21 CFR 1301.12(a) & (b)(3). See also United States v. Moore,
423 U.S. 122, 140-41 (1975) (``Registration of physicians and other
practitioners is mandatory if the applicant is authorized to dispense
drugs . . . under the law of the State in which he practices. [21
U.S.C. ] Sec. 823(f). In the case of a physician, this scheme
contemplates that he is authorized by the State to practice medicine
and to dispense drugs in connection with his professional
practice.'').\3\
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\2\ See also 21 U.S.C. 822(b) (``Persons registered by the
Attorney General . . . to . . . dispense controlled substances . . .
are authorized to possess . . . or dispense such substances . . . to
the extent authorized by their registration and in conformity with
the other provisions of this subchapter.'').
\3\ While the CSA was amended in 1984 to provide the Agency with
authority to deny a practitioner's registration on public interest
grounds, the requirement that a practitioner be ``authorized to
dispense . . . controlled substances under the laws of the States in
which he practices,'' 21 U.S.C. 823(f), was unaltered by this
legislation.
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Notably, while Respondent holds a medical license in Alabama, his
registration authorizes him to dispense controlled substances only in
the State of Louisiana. Moreover, the Show Cause Order proposes only
the revocation of this registration\4\ and the denial of his
application for an additional registration in Louisiana. Because
Congress has clearly mandated that a practitioner possess state
authority in order to be deemed a practitioner under the Act, and
Respondent is no longer authorized to dispense controlled substances
under the laws of Louisiana, the State in which he is registered and
has applied for an additional registration, revocation of his
registration and denial of his application are the appropriate
sanctions. See, e.g., Hooper, 76 FR at 71371-72; Sheran Arden Yeates,
71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105
(1993); Bobby Watts, 53 FR 11919, 11920 (1988); Blanton, 43 FR at
27616.
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\4\ There is no evidence in the record as to whether Respondent
holds a DEA registration in Alabama. Nor does this matter, because
the Government proposes only the revocation of his Louisiana
registration and the denial of his application for a second
registration in that State.
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As noted above, Respondent contends that Congress' use of the word
``registrant'' rather the word ``practitioner'' in section 824 is a
clear indication that it did not intend to authorize an automatic,
summary revocation . . . where a registrant has continued to maintain
authority to practice and dispense under the laws of any state.''
Exceptions, at 4. A practitioner is, however, a particular category of
registrant and thus falls within section 824(a). Given the provisions
of section 802(21) and 823(f), it is not clear why Congress needed to
use the word ``practitioner'' in section 824(a) to authorize the Agency
to effectuate the policy expressed by sections 802(21) and 823(f).
Moreover, Respondent ignores that there is a good reason for why
Congress used different language in sections 823(f) and 824(a) to
describe the class of persons who are subject to each provision, and
this reason provides no support for Respondent's contention.
Section 823(f) is specifically applicable to those applicants
seeking registration as a practitioner, which is just one of eight
different categories of registration under the CSA. See generally 21
U.S.C. 823. By contrast, section 824(a), which authorizes the
imposition of sanctions against a registrant based on any one of five
findings, is applicable to all categories of registrants under the CSA,
including Respondent. See, e.g., James L. Hooper,
[[Page 39617]]
76 FR 71371 (2011), pet. for rev. denied Hooper v. Holder, 481 Fed.
Appx. 826, 829 (4th Cir. 2012).
As explained above, the Agency's rule that revocation is warranted
whenever a practitioner is no longer authorized to dispense controlled
substances under the laws of the state in which he engages in
professional practice is derived from the specific provisions of the
Act which define the term ``practitioner'' and set forth the
registration requirements which are specifically applicable to
practitioners.\5\ Hooper, 76 FR at 71371-72. Indeed, were I to adopt
Respondent's view, he would be allowed to maintain his registration
even though his lack of state authority bars him from obtaining a
registration in Louisiana in the first place. 21 U.S.C. 823(f).
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\5\ Section 824(a)(3) grants authority applicable to all
categories of DEA registrants (and not only practitioners) as well
as each of the enumerated findings. As explained in Hooper, this
general grant of authority in imposing a sanction must be reconciled
with the CSA's specific provisions which mandate that a practitioner
hold authority under state law in order to obtain and maintain a DEA
registration. 76 FR, at 71371-72 (quoting Gozlon-Peretz v. United
States, 498 U.S. 395, 407 (1991) (``A specific provision controls
over one of more general application.'') and Bloate v. United
States, 130 S.Ct. 1345, 1354 (2010) (quoting D. Ginsberg & Sons,
Inc., v. Popkin, 285 U.S. 204, 208 (1932) (``General language of a
statutory provision, although broad enough to include it, will not
be held to apply to a matter specifically dealt with in another part
of the same enactment.'')).
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Moreover, under DEA regulations, a practitioner's registration is
good for a period of three years, after which a practitioner must
submit a renewal application. Yet that renewal application remains
subject to section 823(f), which requires that ``the applicant is
authorized to dispense . . . controlled substances under the laws of
the State in which he practices.'' Respondent's view leads to the
illogical result that a practitioner would need to hold state authority
to obtain his initial registration and any subsequent renewal of the
registration, but would not need to hold state authority during the
intervening period between the granting of his initial application and
the granting of his renewal application.
I reject Respondent's contention and adhere to the Agency's
longstanding and consistent interpretation of the Act, which has been
affirmed by two courts of appeals. See Hooper v. Holder, 481 Fed. Appx.
at 828; Maynard v. DEA, 117 Fed. Appx. 941, 945 (5th Cir. 2004). As the
Fourth Circuit explained in Hooper, in rejecting the practitioner's
contention that the agency's revocation of his registration ignored the
discretion granted by section 824 and read the suspension option out of
the statute:
We find Hooper's contention unconvincing. Section 824(a) does
state that the [Agency] may ``suspend or revoke'' a registration,
but the statute provides for this sanction in five different
circumstances, only one of which is loss of a State license. Because
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 [Agency'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.
The [Agency's] decision does not ``read[] the suspension option''
out of the statute, because that option may still be available for
the other circumstances enumerated in Sec. 824(a).
481 Fed. Appx., at 828. See also Maynard, 117 Fed. Appx. at 945 (5th
Cir. 2004) (upholding revocation of DEA registration after Texas DPS
summarily suspended practitioner's controlled substance registration,
noting that the Agency ``has construed the CSA to require revocation
when a registrant no longer possesses valid state authority to handle
controlled substances''; ``We agree with [the] argument that it may
have been arbitrary and capricious had the DEA failed to revoke [the
physician's] registration under the circumstances.'').
Respondent makes an additional argument beyond that made in Hooper.
He contends that ``[it] is noteworthy that [section] 824(a) . . .
employs the word `may' in authorizing the Attorney General to revoke or
suspend a registration, when among other factors, the registrant is no
longer authorized by State law to engage in the dispensing of
controlled substances.'' Exceptions, at 5. In Respondent's view,
``under [section] 824(a), the loss of state authority is only one of
several factors that may result in suspension or revocation of a
practitioner's DEA registration.'' Id. He thus maintains that ``[t]he
correct interpretation is that [section] 802(21) and [section] 823(f)
require state authority in order for the Administrator to grant an
application for registration, but [section] 824(a)(3) only renders a
loss of state authority a discretionary factor in determining whether
to suspend or revoke an existing registration.'' Id. Respondent thus
contends that Agency's ``practice of deciding these cases on summary
disposition without providing [him with] the opportunity to present
other evidence supporting continued registration not only violates the
plain language of the [CSA] . . . it also denies [him] the due process
rights to which he is entitled under the'' Administrative Procedure
Act. Id. at 6.
Respondent cites no authority for his contention that the various
grounds set forth in section 824(a) pursuant to which the Agency is
authorized to suspend or revoke a registration are merely
``discretionary factors'' in the same manner as are the public interest
factors of section 823. Indeed, his argument is refuted by the texts of
section 823(f) and 824(a) and the history of the CSA.
Notably, section 823(f) instructs that ``[i]n determining the
public interest, the following factors shall be considered'' and then
lists the five factors. 21 U.S.C. 823(f). By contrast, section 824(a)
makes no reference to ``factors.'' Rather, the provision begins with
the word ``Grounds'' and then states that ``[a] registration pursuant
to section 823 of this title . . . may be suspended or revoked by the
Attorney General upon a finding that'' one of the five different
grounds apply to the registrant.\6\ Id. Sec. 824(a).
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\6\ As noted above, Respondent invokes the canon of statutory
construction that ``[w]here Congress includes particular language in
one section of a statute but omits it in another . . . , it is
generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion''; he argues that it is
significant that while Congress used the word ``practitioner'' in
section 823, it used the word ``registrant'' in section 824(a).
Exceptions, at 4 (quoting Keene Corp., 508 U.S. at 208 (other
citation omitted)). Contrary to Respondent's contention, the correct
comparison is between the language of section 823(f), which states
that ``[i]n determining the public interest, the following factors
shall be considered,'' and the language of section 824(a), which
authorizes the Agency to suspend or revoke a registration upon
making one of the five enumerated ``finding[s].''
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Had Congress intended that the various findings set forth in
section 824(a) be treated as ``discretionary factors,'' it would have
done so by using language similar to that it used in section 823(f).
See Jama v. ICE, 543 U.S. 335, 341 (2005) (``We do not lightly assume
that Congress has omitted from its adopted text requirements that it
nonetheless intends to apply, and our reluctance is even greater when
Congress has shown elsewhere in the same statute that it knows how to
make such a requirement manifest.'').
Rather, the findings enumerated in section 824(a) are grants of
authority, each of which provides an independent and adequate ground to
impose a sanction on a registrant. See Alfred S. Santucci, 67 FR 68688
(2002) (``Loss of state authority is an independent ground to revoke a
practitioner's registration under 21 U.S.C. 824(a)(3).''); VI Pharmacy,
Rushdi Z. Salem, 69 FR 5584, 5585 (2004) (``Pursuant to 21 U.S.C.
824(a)(1), falsification of a DEA application constitutes independent
grounds to revoke a registration.'');
[[Page 39618]]
Lazaro Guerra, 68 FR 15226, 15227 (2003) (``mandatory exclusion from
participation in the Medicare program pursuant to 42 U.S.C. 1320a-7(a)
. . . is an independent ground for revoking a DEA registration''
(citing 21 U.S.C. 824(a)(5)). See also Richard B. Lynch, Jr., 50 FR
7844, 7845 (1985) (Agency made findings under section 824(a) (1),
824(a)(2), and 824(a)(3); ``The Administrator concludes that there are
three independent statutory grounds for denial of the subject
application.'').
The Agency's interpretation is buttressed by the CSA's legislative
history. As originally enacted, the CSA granted the Attorney General
authority to suspend or revoke a registration:
upon a finding that the registrant--
(1) has materially falsified any application filed pursuant to
or required by this title [the CSA] or title III [the Controlled
Substance Import Export Act (CSIEA), 21 U.S.C. 951-971];
(2) has been convicted of a felony under [the CSA or CSIEA] or
any other law of the United States, or of any State, relating to any
substance defined in this title as a controlled substance; or
(3) 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.
Pub. L. 91-513, Sec. 304, 84 Stat. 1255 (codified at 21 U.S.C.
824(a)).\7\
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\7\ Cf. Reiter v. Sonotone Corp., 442 U.S.C. 330, 339 (1979)
(``Canons of construction ordinarily suggest that terms connected by
a disjunctive be given separate meanings, unless the context
dictates otherwise[.]) (citing FCC v. Pacifica Foundation, 438 U.S.
726, 739-40 (1978)).
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Describing this provision, the House Report explained that
``[s]ubsection (a) of this section empowers the Attorney General to
revoke or suspend any registration issued under this title if it is
found that the holder has falsified his application, lost his State
license, or has been convicted of a felony violation relating to any
controlled substance.'' H. Rep. No. 91-1444 (1970), as reprinted in
1970 U.S.C.C.A.N. 4566, 4608-09. Absent from this statement is any
discussion that in determining the sanction, the Attorney General was
required to consider not only whether a registrant had lost his state
authority, but also whether he had also materially falsified his
application or had been convicted of a felony related to a controlled
substance.
Moreover, while in 1984, Congress amended the CSA by granting the
Attorney General authority to deny an application for a practitioner's
registration and to revoke an existing registration on public interest
grounds, it did so to increase the Agency's authority to respond to the
``[i]mproper diversion of controlled substances by practitioners,''
which Congress explained ``is one of the most serious aspects of the
drug abuse problem.'' H. Rep. No. 98-1030, at 266 (1984), as reprinted
in 1984 U.S.C.C.A.N. 3182, 3448. The House Report explained that
``effective Federal actions against practitioners has been severely
inhibited by the limited authority in current law to deny or revoke
practitioner registrations'' and that ``the current limited grounds for
revoking or denying a practitioner's registration have been cited as
contributing to the problem of diversion of dangerous drugs.'' Id.
Finding that ``the overly limited bases in current law for denial or
revocation of a practitioner's registration do not operate in the
public interest,'' Congress amended section 823(f) ``to expand the
authority of the Attorney General to deny a practitioner's registration
application'' based upon a finding ``that registration would be
`inconsistent with the public interest.''' Id. (emphasis added).
While Congress also amended section ``824(a) to add to the current
bases for denial, revocation, or suspension of registration a finding
that registration would be inconsistent with the public interest on the
grounds specified in [section] 823, which will include consideration of
the new factors added by'' the amendment, id. at 266-67, Congress did
not otherwise alter the text of section 824(a), which makes clear that
the various paragraphs of this provision are findings, each of which
provides an independent and adequate ground to support agency action
against a registration, and not discretionary factors to be considered
by the Agency. Indeed, Respondent points to nothing in the language of
section 824 or the CSA's legislative history to support his position,
which would fundamentally alter the scope of the Agency's authority
under section 824.
Nor is there any merit to Respondent's contention that denying him
``the opportunity to present other evidence supporting [his] continued
registration'' denies him due process. Exceptions, at 6. As explained
above, in a proceeding brought against a practitioner under section
824(a)(3), the only fact that is material is whether the practitioner
is currently authorized to dispense controlled substances under laws of
the state in which he practices and is registered. Because ``other
evidence supporting [his] continued registration'' is not material to
the outcome of this proceeding, and Respondent was provided with the
opportunity to put forward evidence disputing the only material fact at
issue, I reject his contention that the use of summary disposition
denied him due process. See Rezik A. Saqer, 81 FR 22122, 22124 (2016)
(citing cases).
I therefore reject each of Respondent's Exceptions. Based on the
ALJ's finding that Respondent is not currently authorized to dispense
controlled substances in Louisiana, the State in which he holds the DEA
registration at issue in this proceeding and seeks an additional
registration, I will adopt the ALJ's recommended order that I revoke
his registration and deny his application.
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well
as 28 CFR 0.100(b), I order that DEA Certificate of Registration No.
BF4179203 issued to Arnold E. Feldman, M.D., as well as DATA
Identification No. XF4179203, be, and they hereby are, revoked. I
further order that the Application of Arnold E. Feldman, M.D., for a
registration as a Hospital/Clinic, as well any application to renew the
above the registration or for any other registration in the State of
Louisiana, be, and it hereby is, denied. This ORDER is effective
immediately.\8\
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\8\ Based on the Board's findings with respect to the sixth
charge of the Administrative Complaint, which found that he violated
state law by prescribing, dispensing, or administering legally
controlled substances or any dependency-inducing medication without
legitimate medical justification thereof or in other than a legal or
legitimate manner,'' I find that the public interest necessitates
that this Order be effective immediately. Mot. for Summ. Disp.,
Appendix C, at 13, 15; see also 21 CFR 1316.67.
Dated: August 14, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-17640 Filed 8-18-17; 8:45 am]
BILLING CODE 4410-09-P