Registrant Actions - 2012
[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27522]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-48]
Larry Elbert Perry, M.D.; Decision and Order
On July 2, 2012, Chief Administrative Law Judge John J. Mulrooney,
Jr., issued the attached Recommended Decision. Neither party filed
exceptions to the Recommended Decision.
Having reviewed the entire record, I have decided to adopt the
ALJ's findings of fact, conclusions of law, and recommended order.
Accordingly, I will order that Respondent's DEA Certificate of
Registration be revoked and that any pending application to renew or
modify his registration be denied.
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 Number BP2742357, issued to Larry Elbert Perry, M.D., be,
and it hereby is, revoked. I further order that any pending application
of Larry Elbert Perry, M.D., to renew or modify his registration, be,
and it hereby is, denied. This Order is effective December 13, 2012.
Dated: October 26, 2012.
Michele M. Leonhart,
Theresa Krause, Esq., for the Government
Frank J. Scanlon, Esq., for the Respondent
ORDER GRANTING THE GOVERNMENT'S UNOPPOSED MOTION FOR SUMMARY
DISPOSITION, DENYING THE GOVERNMENT'S MOTION TO STAY AND RECOMMENDED
Chief Administrative Law Judge John J. Mulrooney II. On May 4,
2012, the Deputy Assistant Administrator of the Drug Enforcement
Administration (DEA), issued an Order to Show Cause (OSC), proposing to
revoke the DEA Certificate of Registration (COR), Number BP2742357, of
Larry Elbert Perry, M.D. (Respondent), pursuant to 21 U.S.C. Sec.
824(a)(3) and (4) (2006), and to deny any pending applications for
renewal or modification of such registration, pursuant to 21 U.S.C.
Sec. 823(f). In the OSC, the Government alleges that revocation is
necessary because the Respondent does "not have authority to practice
medicine or handle controlled substances in the State of Kentucky,"
the State of the Respondent's registration. OSC, at 1-2.
On June 6, 2012, the DEA Office of Administrative Law Judges (OALJ)
received from the Respondent, through counsel, a timely filed request
for hearing (Hearing Request) that contained a request for continuance,
and which conceded that the Respondent lacks authority to handle
controlled substances in the State of Kentucky. The Respondent's
Hearing Request contended that the loss of his Kentucky authority was
based, in large part, on a disciplinary action by the Tennessee Board
of Medicine, and that an extension should be granted for "a reasonable
period of time to allow [the Respondent] to regain his licenses in
Tennessee and Kentucky." The same day, by order of this tribunal, the
Respondent's motion for a continuance was denied. Order Denying the
Respondent's Request for Continuance and Directing the Filing of
Government Evidence in Support of its Lack of State Authority
Allegation and Briefing Schedule ("Briefing Schedule Order"), at 1.
In addition to denying the request for a continuance, the Briefing
Schedule Order directed the Government "to provide evidence to support
the allegation that the Respondent lacks state authority to handle
controlled substances [on or before] June 15, 2012." Id. at 2. In this
regard, the Schedule Order set a June 15, 2012, deadline for the
Government to file a motion for summary disposition regarding the
Respondent's alleged lack of state authority and a June 25, 2012,
deadline for any response to such motion. Id. at 2.
On June 7, 2012, the Government filed a Motion for Stay of
Proceedings and Summary Disposition ("MSD"), seeking: (1) summary
disposition; (2) a recommendation that "the Respondent's DEA COR as a
practitioner be revoked, based on the Respondent's lack of a state
licensure;" (3) the transmission of the instant matter to the
Administrator for Final Agency Action; and (4) "a stay of these
administrative proceedings pending the results of this Government
motion." MSD, at 5. A copy of a November 19, 2009, Emergency Order of
Suspension (Suspension Order) issued by the Commonwealth of Kentucky
Board of Medical Licensure, and a copy of a September 26, 2011, Agreed
Order of Surrender, which memorialized the Respondent's surrender of
his state license to practice medicine, were both attached to the MSD.
The Respondent did not file a response to the Government's motion
within the time allowed.\1\ Accordingly, the motion will be deemed
\1\ Indeed, a week has passed since the response due date with
no word from the Respondent or his counsel.
Congress does not intend for administrative agencies to perform
meaningless tasks. See Philip E. Kirk, M.D., 48 Fed. Reg. 32887 (1983),
aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); see also
Puerto Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir.
1994); NLRB v. Int'l Assoc. of Bridge, Structural & Ornamental
Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977); United States v.
Consol. Mines & Smelting Co., 455 F.2d 432, 453 (9th Cir. 1971). Thus,
it is well-settled that, where no genuine question of fact is involved,
or when the material facts are agreed upon, a plenary, adversarial
administrative proceeding is not required. See Jesus R. Juarez, M.D.,
62 Fed. Reg. 14945 (1997); Dominick A. Ricci, M.D., 58 Fed. Reg. 51104
(1993), Here, both parties agree that the Respondent is without
authorization to practice medicine or handle controlled substances in
Kentucky, the jurisdiction where the Respondent holds the DEA COR that
is the subject of this litigation.
In order to revoke a registrant's DEA registration, the Government
has the burden of proving that the requirements for revocation are
satisfied. 21 C.F.R. Sec. 1301.44(e). Once the Government has made its
prima facie case for revocation of the registrant's DEA COR, the burden
of production shifts to the Respondent to show that, given the totality
of the facts and circumstances in the record, revoking the registrant's
registration would be inappropriate. Morall v. DEA, 412 F.3d 165, 174
(D.C. Cir. 2005); Humphreys v. DEA, 96 F.3d 658, 661 (3d Cir. 1996);
Shatz v. U.S. Dept. of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989);
Thomas E. Johnston, 45 Fed. Reg. 72311 (1980).
The Controlled Substances Act (CSA) requires that, in order to
maintain a DEA registration, a practitioner must be authorized to
handle controlled substances in "the jurisdiction in which he
practices." See 21 U.S.C. 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 Fed. Reg. 20346, 20347 (2009); Scott Sandarg, D.M.D., 74
Fed. Reg. 17528, 174529 (2009); John B. Freitas, D.O., 74 Fed. Reg.
17524, 17525 (2009); Roger A. Rodriguez, M.D., 70 Fed. Reg. 33206,
33207 (2005); Stephen J. Graham, M.D., 69 Fed. Reg. 11661 (2004);
Dominick A. Ricci, M.D., 58 Fed. Reg. 51104 (1993); Abraham A. Chaplan,
M.D., 57 Fed. Reg. 55280 (1992); Bobby Watts, M.D., 53 Fed. Reg. 11919
(1988); see also Harrell E. Robinson, 74 Fed. Reg. 61370, 61375 (2009).
As explained above, 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").\2\ At this
juncture, no genuine dispute exists over the fact that the Respondent
lacks state authority to handle controlled substances in the State of
Kentucky. Because the Respondent lacks such state authority, both the
plain language of applicable federal statutory provisions and Agency
interpretive precedent dictate that the Respondent is not entitled to
maintain his DEA registration. Simply put, there is no contested
factual matter adducible at a hearing that would provide sufficient
grounds to allow the Respondent to continue to hold his COR. 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 Fed. Reg. 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).
\2\ Even assuming arguendo the possibility that the Respondent's
state controlled substances privileges could be reinstated, summary
disposition would still be warranted because "revocation is also
appropriate when a state license has been suspended, but with the
possibility of future reinstatement," Rodriguez, 70 Fed. Reg. 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 Fed. Reg. 5661, 5662
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.
July 2, 2012.
John J. Mulrooney II,
Chief Administrative Law Judge.
[FR Doc. 2012-27522 Filed 11-9-12; 8:45 am]
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