Registrant Actions - 2011
[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Notices]
[Pages 17672-17673]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-7390]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-64]
Alfred E. Boyce, M.D.; Decision and Order
On August 12, 2010, Administrative Law Judge (ALJ) John J.
Mulrooney, II, issued the attached recommended decision. The Respondent
did not file exceptions to the decision.
Having reviewed the record in its entirety including the ALJ's
recommended decision, I have decided to adopt the ALJ's rulings,
findings of fact, conclusions of law, and recommended Order.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b) and 0.104, I order that DEA
Certificate of Registration, FB0003943, issued to Alfred E. Boyce,
M.D., be, and it hereby is, revoked. I further order that any pending
application of Alfred E. Boyce, M.D., to renew or modify his
registration, be, and it hereby is, denied. This Order is effective
immediately.
Dated: March 18, 2011.
Michele M. Leonhart,
Administrator.
James Hambuechen, Esq., for the Government;
Bradford M. Cohen, Esq., for the Respondent
Order Granting Government Motion for Summary Disposition and
Recommended Decision
John J. Mulrooney, Administrative Law Judge. The Deputy Assistant
Administrator, Drug Enforcement Administration (DEA or Government),
issued an Order to Show Cause (OSC), dated May 13, 2010, proposing to
revoke the DEA Certificate of Registration (COR), Number FB0003943, of
Alfred E. Boyce, D.O. (Respondent), pursuant to 21 U.S.C. 824(a)(3) and
(4), and deny any pending applications for renewal or modification of
the COR, pursuant to 21 U.S.C. 823(f), because the Respondent's
continued registration is inconsistent with the public interest as that
term is used in 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 Florida" as grounds for
revocation of Respondent's DEA registration.
On July 22, 2010, the DEA Office of Administrative Law Judges
(OALJ) received two separate documents from Respondent's counsel, each
dated July 19, 2010, reflecting a notice of attorney appearance and a
timely \1\ request for hearing.\2\
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\1\ Because the initial record contained no indication about the
actual service date of the OSC or other information allowing for an
evaluation of whether the Respondent's hearing request was timely
made pursuant to 21 CFR 1301.43, an order issued on July 27, 2010
wherein the Government was directed to provide evidence of the date
of OSC service. After review of the submissions of the parties, it
appears that the Respondent's hearing request was timely filed.
\2\ The Respondent's request for a hearing "in the matter of:
Department of Health v. Alfred Eversley Boyce, D.O., Case No. 10-
3167PL" (emphasis supplied), i.e. the state administrative action
in Florida, that was filed on OALJ is herein deemed to constitute a
sufficient request for hearing relative to these proceedings.
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On July 27, 2010, an order issued which directed, inter alia, that
the Government provide evidence to support its allegation that
Respondent lacks state authority in the state in which he is registered
with DEA to handle controlled substances. A briefing schedule was also
provided in the order fixing dates for the requesting filings, any
Government motions for summary judgment or termination of proceedings
based thereon, and any reply thereto by the Respondent.
On July 28, 2010, the Government timely filed a document styled
"Government's Motion for Stay of Proceedings and Summary Disposition"
(Government's Motion) wherein it seeks relief in the form of summary
disposition based on its assertion that the Respondent "is not duly
authorized to possess, dispense, or otherwise handle controlled
substances in the State of Florida, the jurisdiction in which the
Respondent engages in the practice of medicine." Govt. Mot. at 1.
Attached to the Government's Motion was a copy of an Order of Emergency
Suspension of License (Emergency Suspension Order) issued by the State
of Florida Department of Health (Florida DOH) on April 28, 2010. Govt.
Mot. at Attach. 1 \3\ (Florida DOH Order of Emergency Suspension of
License dated April 28, 2010). The Emergency Suspension Order reflects
the immediate suspension of the Respondent's license to practice as an
osteopathic physician in the state, pending further proceedings. The
Florida DOH action is not based upon pending DEA proceedings, but based
upon on its own factual findings that the Respondent violated numerous
Florida statutes and administrative code provisions related to the
prescribing of controlled substances, and its determination that the
Respondent's "continued practice as an osteopathic physician
constitutes an immediate serious danger to the health, safety, or
welfare of the public." Id. In its motion, the Government correctly
contends that state authority is a necessary condition precedent for
the acquisition or maintenance of a DEA registration, and the
suspension of the Respondent's state practitioner's license precludes
the continued maintenance of his DEA COR, thus requiring revocation.
Govt. Mot. at 2; see id. at Attach. 1.
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\3\ The Government's attachment will be included in the record
as Government Exhibit 1.
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The Respondent filed an opposition on August 10, 2010, asserting,
in essence, that the CSA does not strictly require COR revocation
pursuant to 21 U.S.C. 824(a)(3) where a registrant's state license has
been suspended and the registrant has lost state authorization to
dispense controlled substances. The Respondent argues that sanctions
provided for under the CSA that are lesser than revocation are
appropriate, such as suspension of his COR,\4\ or limiting the
suspension or revocation of his COR only "to the particular controlled
substance [] with respect to which grounds for revocation or suspension
exist." 21 U.S.C. 824(b). As a mitigating basis for a sanction
recommendation lesser than revocation, the Respondent points out that
the cases cited by the Government in its summary disposition motion
involve DEA COR revocations based on conduct other than
[[Page 17673]]
a temporary suspension of a state medical license. For that reason, the
Respondent argues that a summary disposition in these DEA proceedings,
based on the suspension of his state licensure, "would be inconsistent
with [the Agency's] previous rulings and would create a manifest
injustice to Respondent." While the Respondent's position is not
without some level of facial appeal, it is unsupported by the
applicable statutes, regulations and precedent emanating from both the
courts and the Agency.
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\4\ See 21 U.S.C. 824(a) ("A registration * * * may be
suspended or revoked * * *." (emphasis supplied)).
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The Controlled Substances Act (CSA) requires that a practitioner
must be currently authorized to handle controlled substances in "the
jurisdiction in which he practices" in order to maintain a DEA
registration. See 21 U.S.C. 802(21) ("[t]he term 'practitioner' means
a physician * * * licensed, registered, or otherwise permitted, by * *
* the jurisdiction in which he practices * * * to distribute, dispense,
[or] administer * * * a controlled substance in the course of
professional practice"); see also id. 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]"
(emphasis supplied). Roy Chi Lung, 74 FR 20346, 20347 (2009); Scott
Sandarg, D.M.D., 74 FR 17528, 174529 (2009); John B. Freitas, D.O., 74
FR 17524, 17525 (2009); Roger A. Rodriguez, M.D., 70 FR 33206, 33207
(2005); Stephen J. Graham, M.D., 69 FR 11661 (2004); Dominick A. Ricci,
M.D., 58 FR 51104 (1993); Abraham A. Chaplan, M.D., 57 FR 55280 (1992);
Bobby Watts, M.D., 53 FR 11919 (1988).
Denial of an application or revocation of a registration via a
summary disposition procedure is also warranted if the period of a
suspension is temporary, or if there exists the potential that
Respondent's state controlled substances privileges will be reinstated,
because "revocation is also appropriate when a state license has been
suspended, but with the possibility of future reinstatement,"
Rodriguez, 70 FR at 33207 (citations omitted), and even where there is
a judicial challenge to the state medical board action actively pending
in the state courts. Michael G. Dolin, M.D., 65 FR 5661, 5662 (2000).
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). Once DEA has made its prima facie case for
revocation of the registrant's DEA COR, the burden of production then
shifts to the Respondent to show that, given the totality of the facts
and circumstances in the record, revoking the registrant's registration
would not be appropriate. Morall v. DEA, 412 F.3d 165, 174 (DC Cir.
2005); Humphreys v. DEA, 96 F.3d 658, 661 (3d Cir. 1996); Shatz v. U.S.
Dept. of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989); Thomas E.
Johnston, 45 FR 72311 (1980).
Regarding the Government's request for summary disposition of the
present case, it is well-settled that where no genuine question of fact
is involved, or when the material facts are agreed upon, a plenary,
adversarial administrative proceeding is not required, see Jesus R.
Juarez, M.D., 62 FR 14945 (1997); Dominick A. Ricci, M.D., 58 FR 51104
(1993), under the rationale that Congress does not intend for
administrative agencies to perform meaningless tasks. See Philip E.
Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d
297 (6th Cir. 1984); see also Puerto Rico Aqueduct & Sewer Auth. v.
EPA, 35 F.3d 600, 605 (1st Cir. 1994); NLRB v. Int'l Assoc. of Bridge,
Structural & Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir.
1977); United States v. Consol. Mines & Smelting Co., 455 F.2d 432, 453
(9th Cir. 1971).
The record evidence in the instant case clearly demonstrates that
no genuine dispute exists over the established material fact that
Respondent currently lacks state authority to handle controlled
substances in Florida, his state of registration with the DEA, since
his state osteopathic medical practitioner's license was suspended on
April 28, 2010. Notwithstanding the Respondent's attempts to
distinguish the rationale for revocation in the cases cited by the
Government as factually dissimilar to his own circumstances, the
dispositive consideration here is that because the Respondent presently
lacks state authority, both the plain language of the applicable
federal statutory provisions and Agency interpretive precedent set
forth herein dictate that the Respondent is not entitled to maintain
his DEA registration, and therefore a registration action less than
revocation is not appropriate. Simply put, there is no contested
factual matter adducible at a hearing that can provide the Agency with
authority to continue (or a fortiori for me to recommend) his
entitlement to a COR under the circumstances and further delay in
ruling on the Government's motion for summary disposition is not
warranted.
Accordingly, the Government's Motion for Summary Disposition is
hereby granted, its Motion for Stay of Proceedings is denied as moot,
and in view of the presently uncontroverted fact that the Respondent
lacks state authority to handle controlled substances, it is herein
recommended that the Respondent's DEA registration be revoked forthwith
and any pending applications for renewal be denied.
Dated: August 12, 2010.
John J. Mulrooney, II,
U.S. Administrative Law Judge.
[FR Doc. 2011-7390 Filed 3-29-11; 8:45 am]
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