Registrant Actions - 2012
[Federal Register Volume 77, Number 28 (Friday, February 10, 2012)]
[Notices]
[Pages 7182-7183]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3057]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-09]
Scott W. Houghton, M.D.; Decision and Order
On November 4, 2011, Chief Administrative Law Judge (ALJ) John J.
Mulrooney, II, issued the attached recommended decision. Neither party
filed exceptions to the decision. Having reviewed the entire record, 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), I order that DEA Certificate of
Registration BH8796077, issued to Scott W. Houghton, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Scott W. Houghton, M.D., to renew or modify his registration, be, and
it hereby is, denied. This Order is effective immediately.\1\
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\1\ Based on the State's Immediate Suspension of Respondent's
Connecticut Controlled Substances Registration, I conclude that the
public interest requires that this Order be effective immediately.
21 CFR 1316.67.
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Dated: February 1, 2012.
Michele M. Leonhart,
Administrator.
Carrie Bland, Esq., for the Government.
R. Cornelius Danaher, Jr., Esq., for the Respondent.
Order Granting Summary Disposition and Recommended Decision
Chief Administrative Law Judge John J. Mulrooney, II. The Deputy
Assistant Administrator, Drug Enforcement Administration (DEA or
Government), issued an Order to Show Cause (OSC), dated September
27, 2011, proposing to revoke the DEA Certificate of Registration
(COR), Number BH8796077, Scott W. Houghton, M.D. (Respondent),
pursuant to 21 U.S.C. Sec. 824(a)(3) and (4) (2006). In the OSC,
the Government alleges that Respondent is "currently without
authority to handle controlled substances in the [s]tate of
Connecticut," and that, as such, Respondent's continued
registration is inconsistent with the public interest as that
[[Page 7183]]
term is used in 21 U.S.C. Sec. 823(f) (2006 & Supp. III 2010).\1\
OSC at 1.
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\1\ Interestingly, lack of state authority is the only ground
for which the Government's charging document has supplied a factual
basis. Beyond the issue of state authority, no factual basis has
been included that would provide the Respondent with notice as to
why his continued registration might be inconsistent with the public
interest.
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On October 26, 2011, the Respondent, through counsel, timely
filed a request for hearing coupled with a request for a
continuance. An order issued that day which denied the Respondent's
continuance request and set a briefing schedule on the issue of
whether he possessed state authority to possess controlled
substances. The parties timely complied. On October 28, 2011, the
Government filed a document styled "Government's Motion for Summary
Disposition" (Motion for Summary Disposition) and on November 4,
2011, the Respondent filed his reply (Respondent's Reply).
The Government's Motion for Summary Disposition attached a copy
of a February 3, 2010 Order of Immediate Suspension of Controlled
Substance Registration (Suspension Order) issued by the Commissioner
of the Connecticut Department of Consumer Protection, as well as an
August 13, 2011 Interim Consent Order, executed by the Respondent
and an official of the Connecticut Department of Health, which
memorialized the former's suspension and surrender of his state
license to practice medicine. Both parties agree that the Respondent
is currently without authorization to practice medicine and handle
controlled substances in Connecticut, the jurisdiction where he
holds the DEA COR that is the subject of this litigation. Although
the Respondent does not contest the current status of his state
license and lack of authorization to handle controlled substances,
in his Reply, he has stresses his intention to contest these issues
before the Connecticut authorities in the future. Reply at 2.
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. Sec. 802(21) ("[t]he term
'practitioner' means a physician * * * licensed, registered, or
otherwise permitted, by * * * the jurisdiction in which he practices
* * * to distribute, dispense, [or] administer * * * a controlled
substance in the course of professional practice"); see also id.
Sec. 823(f) ("The Attorney General shall register practitioners *
* * if the applicant is authorized to dispense * * * controlled
substances under the laws of the State in which he practices.").
Therefore, because "possessing authority under state law to handle
controlled substances is an essential condition for holding a DEA
registration," this Agency has consistently held that "the CSA
requires the revocation of a registration issued to a practitioner
who lacks [such authority]." Roy Chi Lung, 74 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); see also Harrell E. Robinson, 74 FR 61370, 61375 (2009).
In order to revoke a registrant's DEA registration, the DEA has
the burden of proving that the requirements for revocation are
satisfied. 21 C.F.R. Sec. 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 motion, summary disposition of an
administrative case is warranted where, as here, "there is no
factual dispute of substance." See Veg-Mix, Inc., 832 F.2d 601, 607
(DC Cir. 1987) ("an agency may ordinarily dispense with a hearing
when no genuine dispute exists"). A summary disposition would
likewise be warranted even if the period of suspension were
temporary, or if there were (as he avers) the potential that
Respondent's state controlled substances privileges could 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). 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).
At this juncture, no genuine dispute exists over the established
material fact that Respondent currently lacks state authority to
handle controlled substances. Because the Respondent lacks such
state authority, both the plain language of applicable federal
statutory provisions and Agency interpretive precedent dictate that
the Respondent is not entitled to maintain his DEA registration.
Simply put, there is no contested factual matter adducible at a
hearing that can provide me with authority to continue his
entitlement to a COR under the circumstances. I therefore conclude
that further delay in ruling on the Government's motion for summary
disposition is not warranted. See Gregory F. Saric, M.D., 76 FR
16821 (2011) (stay denied in the face of Respondent's petition based
on pending state administrative action wherein he was seeking
reinstatement of state privileges).
Accordingly, I hereby
GRANT the Government's Motion for Summary Disposition;
DENY the Government's Motion for Stay of Proceedings as moot;
and further RECOMMEND that the Respondent's DEA registration be
REVOKED forthwith and any pending applications for renewal be
DENIED.
Dated: November 4, 2011.
John J. Mulrooney, II,
Chief Administrative Law Judge.
[FR Doc. 2012-3057 Filed 2-9-12; 8:45 am]
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