Registrant Actions - 2011
[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Notices]
[Pages 71371-71374]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29709]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 11-66]
James L. Hooper, M.D.; Decision and Order
On August 9, 2011, Chief Administrative Law Judge (ALJ) John J.
Mulrooney, II, issued the attached recommended decision. On August 25,
2011, the Respondent filed Exceptions to the ALJ's decision.
Having reviewed the record in its entirety including the ALJ's
recommended decision, and Respondent's Exceptions, I have decided to
adopt the ALJ's rulings, findings of fact, conclusions of law, and
recommended order.\1\
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\1\ All citations to the ALJ's recommended decision are to the
slip opinion as issued by the ALJ.
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In his Exceptions, Respondent contends "that the proper decision
is suspension" of his DEA Registration to be effective co-extensively
with the one-year suspension of his state license to practice medicine.
Exceptions at 1. He argues that because his state license has been
suspended for a definite period after which it will be
"automatic[ally] reinstate[d]," his case is unlike those cases relied
on by the Government and ALJ because they involved state suspensions
which were of an indefinite or indeterminate duration. Id.
According to Respondent, the Agency's decision in Anne Lazar Thorn,
M.D., 62 FR 12847 (1997), stands for the proposition that the Agency's
consistent practice of revoking registrations based on a loss of state
authority "rests on the indefinite nature of a State suspension."
Exceptions at 1-2. Respondent quotes the following passage from Thorn:
[T]he Acting Deputy Administrator recognizes that he has
discretionary authority to either revoke or suspend a DEA
registration. However, given the indefinite nature of the suspension
of Respondent's state license to practice medicine, the Acting
Deputy Administrator agrees with [the ALJ] that revocation is
appropriate in this case.
Id. at 2 (quoting 62 FR at 12848).
Notwithstanding the implication of the above passage, no decision
of this Agency has held that a suspension (rather than a revocation) is
warranted where a State has imposed a suspension of a fixed or certain
duration. To the contrary, in the case of practitioners, DEA has long
and consistently interpreted the CSA as mandating the possession of
authority under state law to handle controlled substance as a
fundamental condition for obtaining and maintaining a registration.
See, e.g., Leonard F. Faymore, 48 FR 32886, 32887 (1983) (collecting
cases). As the Thorn decision further explained:
DEA has consistently interpreted the Controlled Substances Act
to preclude a practitioner from holding a DEA registration if the
practitioner is without authority to handle controlled substances in
the state in which he/she practices. This prerequisite has been
consistently upheld.
* * * * *
The Acting Deputy Administrator finds that the controlling
question is not whether a practitioner's license to practice
medicine in the state is suspended or revoked; rather it is whether
the Respondent is currently authorized to handle controlled
substances in the state. In the instant case, it is undisputed that
Respondent is not currently authorized to handle controlled
substances in the [state in which she practices medicine].
Therefore, * * * Respondent is not currently entitled to a DEA
registration.
62 FR at 128438 (citing and quoting 21 U.S.C. 823(f) and 802(21) and
collecting cases). Accordingly, in Thorn, the Agency rejected the
Respondent's contention that her registration should be suspended
rather than revoked.
Respondent nonetheless argues that "[r]evocation is not mandated
for a [state license] suspension for a time certain," and that "[i]n
such circumstances, suspension of the [DEA registration] is the more
appropriate remedy." Exceptions at 3. Respondent returns to the Thorn
language that " '[t]he Acting Deputy Administrator recognizes that he
has the discretionary authority to either revoke or suspend a DEA
registration,' " and argues that "[t]here are reason[s] the statutory
framework (21 U.S.C. 824(a)) provides for both suspension and
revocation. The [ALJ's] Recommended Decision reads the suspension
option out of the statute." Id.
It is acknowledged that the opening sentence of section 824(a)
provides that a registration "may be suspended or revoked by the
Attorney General" upon the Attorney General's finding that one of the
five grounds set forth exist. 21 U.S.C. 824(a). However, Respondent
does not elaborate on the "reason[s]" Congress granted the Agency
authority to suspend or revoke and how they apply in the context of a
proceeding brought under section 824(a)(3). In any event, this general
grant of authority in imposing a sanction must be reconciled with the
CSA's specific provisions which mandate that a practitioner hold
[[Page 71372]]
authority under state law in order to obtain and maintain a DEA
registration. See Gozlon-Peretz v. United States, 498 U.S. 395, 407
(1991) ("A specific provision controls over one of more general
application."); see also 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.")).
In enacting the CSA, Congress defined the term "practitioner" to
"mean[] 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." 21 U.S.C. 802(21). Consistent
with this definition, Congress, in setting forth the requirements for
obtaining a practitioner's registration, directed that "[t]he Attorney
General shall register practitioners * * * to dispense * * * controlled
substances * * * if the applicant is authorized to dispense * * *
controlled substances under the laws of the State in which he
practices."' Id. Sec. 823(f) (emphasis added). As these provisions
make plain, a practitioner can neither obtain nor maintain a DEA
registration unless the practitioner currently has authority under
state law to handle controlled substances. Moreover, Respondent ignores
that even where a practitioner's state license has been suspended for a
period of certain duration, the practitioner no longer meets the
statutory definition of a practitioner. Accordingly, notwithstanding
the language of the grant of authority in section 824(a), I conclude
that the revocation of Respondent's registration is warranted.\2\
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\2\ This case presents no occasion to consider whether a state
suspension of a practitioner's controlled substance authority is of
such a short duration that revocation of his registration would be
deemed arbitrary and capricious.
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Finally, Respondent argues that while the Consent Order constitutes
resolution of the Board's charges, he did "not admit any of the facts
found or any wrongdoing." Exceptions, at 4 n.1. As stated above,
Respondent's argument is not well taken because the State's action in
suspending his medical license is by itself, and independent ground to
revoke his registration. 21 U.S.C. 824(a)(3).
Accordingly, I will adopt the ALJ's recommended decision and will
order that Respondent's DEA registration be revoked and that any
pending applications for renewal be denied.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration BH4289028, issued to James L. Hooper, M.D., be, and it
hereby is, revoked. I further order that any pending application of
James L. Hooper, M.D., to renew or modify his registration, be, and it
hereby is, denied. This Order is effective immediately.\3\
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\3\ Based on the extensive findings set forth in the State
Consent Order establishing that Respondent diverted controlled
substances, and the State Board's ultimate conclusion that he
"prescribed * * * drugs for illegitimate medical purposes in
violation of state law," GX A, at 23; I conclude that the public
interest requires that this Order be made effective immediately. 21
CFR 1316.67.
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Dated: November 8, 2011.
Michele M. Leonhart,
Administrator.
Jonathan P. Novak, Esq., for the Government
Allen H. Sachsel, Esq., for the Respondent
Order Granting Motion for Summary Disposition and Recommended Decision
John J. Mulrooney, II, Chief Administrative Law Judge. The Deputy
Assistant Administrator, Drug Enforcement Administration (DEA or
Government), issued an Order to Show Cause (OSC), dated June 27, 2011,
proposing to revoke the DEA Certificate of Registration (COR), Number
BH4289028, of James L. Hooper, M.D. (Respondent), pursuant to 21 U.S.C.
824(a)(3) and (4) (2006), because, according to the Government, the
Respondent's continued registration is inconsistent with the public
interest as that term is used in 21 U.S.C. 823(f) (2006 & Supp. III
2010). Among several alleged factual predicates presented in support of
revocation, the Government's OSC alleges that the Respondent is without
authority to handle controlled substances in Maryland, the registered
location of his COR. OSC at 1.
On July 22, 2011, the Respondent, through counsel, filed a timely
request for hearing (Hearing Request). Therein, the Respondent conceded
that he is presently under a one-year suspension from the practice of
medicine by the Maryland Board of Physicians (Maryland Board) and
acknowledged that he has turned in his DEA COR to that body.
On July 25, 2011, I issued an order which directed, inter alia,
that the Government provide evidence to support its allegation that the
Respondent lacks authority to handle controlled substances in the state
in which he is registered with DEA, and set out a schedule for the
parties to brief the issues.
On July 26, 2011, the Government timely filed a document styled
"Motion for Summary Disposition" (Motion for Summary Disposition),
wherein it avers that the Respondent was licensed by the state of
Maryland to practice medicine, but through a Consent Order between the
Respondent and the Maryland Board of Physicians effective June 7, 2011
(attached to the Motion for Summary Disposition), his state medical
license was, inter alia, suspended for a period of one year. See Gov't
Mot. for Summ. Dispo. at 1, Ex. A at 23. The Government has
simultaneously requested a stay of proceedings pending a ruling on its
Motion for Summary Disposition. Id. at 2.\1\
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\1\ At present, there are neither directives pending compliance,
nor are there outstanding event dates scheduled by this tribunal,
aside from the briefing schedule previously issued in this matter.
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On its face, the Consent Order from the Maryland Board suspends the
Respondent's license with the voluntary assent of the Respondent, id.,
Ex. A at 27, after concluding that, inter alia, "Respondent is guilty
of unprofessional conduct in the practice of medicine, in violation of
[Md. Code Ann., Health Occ.] Sec. 14-404(a)(3)(ii); is professionally
* * * incompetent, in violation of [Md. Code Ann., Health Occ.] Sec.
14-404(a)(4); and [had] prescribed * * * drugs for * * * illegitimate
medical purposes in violation of [Md. Code Ann., Health Occ.] Sec. 14-
404(a)(27)," id., Ex. A at 23. Persistently scrutinized among the
Board's findings is the Respondent's prescribing practices related to
controlled substances.
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. Id. at 1-2; see
id., Ex. A at 23.
The Respondent's timely-filed response in opposition asserts, 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. Resp't Resp. at 3. The Respondent argues that
sanctions provided for under the CSA that are less severe than
revocation are appropriate, such as
[[Page 71373]]
suspension of his COR.\2\ Id. As a mitigating basis for a sanction
recommendation less than revocation, the Respondent points out that the
cases cited by the Government in its summary disposition motion involve
DEA COR revocations based on a state disciplinary action other than a
temporary, definite-period suspension of a state medical license. Id.
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 rationale of prior DEA decisions."
Id. at 4.
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\2\ See 21 U.S.C. 824(a) (2006) ("A registration * * * may be
suspended or revoked * * *") (emphasis supplied).
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The Respondent also argues that the structure of the Consent Order
somehow affects the Agency's ability to issue or maintain a COR in the
absence of state authority. Specifically, the Respondent posits that
under his circumstances, where "a self-executing [o]rder * * *
restores [his] medical license * * * automatically, and at a time
certain," that the appropriate remedy is "suspension coextensive with
the loss of State privileges * * * and [that] is consistent with the
rationale of prior DEA decisions." Resp't Resp. at 4-5 (emphasis
removed). However, the plain language employed by the Agency in the
principal case cited by the Respondent in support of his position, Anne
Lazar Thorn, M.D., 62 FR 12847 (1997), undermines any action short of
summary revocation. In Thorn, the Agency affirmed the Administrative
Law Judge's summary disposition recommended decision and specifically
rejected the view that a COR could coexist in the face of an absence of
state authority to handle controlled substances. In that case, the
Agency held that:
the controlling question is not whether a practitioner's license to
practice medicine in the state is suspended or revoked; rather, it
is whether the Respondent is currently authorized to handle
controlled substances in the state. In the instant case, it is
undisputed that Respondent is not currently authorized to handle
controlled substances in the [state where his COR has its listed
address]. Therefore, * * * Respondent is not currently entitled to a
DEA [COR].
Id. at 12848 (emphasis supplied). The controlling question posed on the
acknowledged facts here must, like the Respondent's petition for a
hearing, be answered in the negative. In this regard, it is also
imperative to acknowledge that it is DEA's responsibility to determine
suitability to maintain a COR, not the Maryland Board. See Edmund
Chein, M.D., 72 FR 6580, 6590 (2007) (ultimate responsibility to
determine whether a registration is consistent with the public interest
has been delegated exclusively to the DEA, not to entities within state
government), aff'd, Chein v. DEA, 533 F.3d 828 (DC Cir. 2008), cert.
denied, ---- U.S. ----, 129 S. Ct. 1033, 1033 (2009); Mortimer B.
Levin, D.O., 55 FR 8209, 8210 (1990) (even reinstatement of state
medical license does not affect DEA's independent responsibility to
determine whether a registration is in the public interest). The
considerations employed by, and the public responsibilities of, a state
medical board in determining whether a practitioner may continue to
practice within its borders are not coextensive with those attendant
upon the determination that must be made by DEA relative to continuing
a registrant's authority to handle controlled substances. Put another
way, adopting the Respondent's argument would imbue the drafters of
state medical board orders to circumscribe the options of the DEA
relative to its registrants. Such a result finds no support in the
statutes and regulations governing DEA or the Maryland Board and is
contrary to logic.
In Calvin Ramsey, M.D., 76 FR 20034, 20036 (2011), the Agency
stated its position regarding the current factual scenario with such
unambiguous precision that little room is realistically left for debate
on the matter:
DEA has repeatedly held that the CSA requires the revocation of a
registration issued to a practitioner whose state license has been
suspended or revoked. David W. Wang, 72 [FR] 54297, 54298 (2007);
Sheran Arden Yeates, 71 [FR] 39130, 39131 (2006); Dominck A. Ricci,
58 [FR] 51104, 51105 (1993); Bobby Watts, 53 [FR] 11919, 11920
(1988). This is so even where a state board has suspended (as
opposed to revoked) a practitioner's authority with the possibility
that the authority may be restored at some point in the future.
[Roger A. Rodriguez, 70 FR 33206, 33207 (2005)].
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]."
Alfred E. Boyce, M.D., 76 FR 17672, 17673 (2011) (emphasis supplied)
(quoting Scott Sandarg, D.M.D., 74 FR 17528, 174529 (2009); John B.
Freitas, D.O., 74 FR 17524, 17525 (2009)); Roy Chi Lung, 74 FR 20346,
20347 (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) (2011). 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.
[[Page 71374]]
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). To paraphrase the Agency's view
as stated in Ramsey,
[t]here being no dispute that the Respondent lacks the requisite
authority, there [is] no need for an evidentiary hearing, as summary
judgment has been used for more than 100 years to resolve legal
"actions in which there is no genuine issue as to any material
fact" and has never been deemed to violate Due Process. See Fed. R.
Civ. P. 56 (Advisory Committee Notes 1937 Adoption). Cf. Codd v.
Velger, 429 U.S. 624, 627 (1977).
76 FR at 20036.
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 Maryland, his state of registration with the DEA, since
his state medical practitioner's license was suspended (with his own
consent) on June 7, 2011. Notwithstanding the Respondent's arguments to
the contrary, the dispositive consideration lies in his absence of
state authority to handle controlled substances, which inexorably
dictates that he is not entitled to maintain his DEA registration.
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 a 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 9, 2011.
John J. Mulrooney, II,
Chief Administrative Law Judge.
[FR Doc. 2011-29709 Filed 11-16-11; 8:45 am]
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