Registrant Actions - 2012
[Federal Register Volume 77, Number 221 (Thursday, November 15, 2012)]
[Notices]
[Pages 68149-68150]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27692]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-51]
Karen Paul Holley, M.D.; Decision and Order
On July 27, 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.
According, I will order that Respondent's DEA Certificate of
Registration be revoked and that any pending application to renew or
modify her registration 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 Number BH8988339, issued to Karen P. Holley, M.D., be, and
it hereby is, revoked. I further order that any pending application of
Karen P. Holley, M.D., to renew or modify her registration, be, and it
hereby is, denied. This Order is effective December 17, 2012.
Dated: October 26, 2012.
Michele M. Leonhart,
Administrator.
Theresa Krause, Esq., for the Government
John H. Musser, IV, Esq., for the Respondent
Order Granting the Government's Motion for Summary Disposition and
Recommended Decision
Chief Administrative Law Judge John J. Mulrooney, Jr. The Deputy
Assistant Administrator, Drug Enforcement Administration (Government),
issued an Order to Show Cause (OSC), dated May 21, 2012, proposing to
revoke the DEA Certificate of Registration (COR), Number BH8988339, of
Karen Paul Holley, M.D. (Respondent), pursuant to 21 U.S.C. 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. 823(f). In the
OSC, the Government alleges that revocation is necessary because the
Respondent is "without authority to handle controlled substances in
the State of Louisiana," the state of the Respondent's registration.
OSC, at 1-2.
On July 3, 2012, the DEA Office of Administrative Law Judges (OALJ)
[[Page 68150]]
received from the Respondent, through counsel, a timely filed request
for hearing (Hearing Request) which, concedes that the Respondent lacks
authority to handle controlled substances in the State of Louisiana.
The same day, this tribunal issued an order: (1) Directing the
Government to "provide evidence to support the allegation that the
Respondent lacks state authority to handle controlled substances" on
or before July 13, 2012; (2) setting a deadline of July 13, 2012, for
the Government to file a motion for summary disposition; and (3)
setting a deadline of July 25, 2012, for the Respondent to respond to
any motion for summary disposition. Briefing Schedule, at 1-2.
On July 6, 2012, the Government filed a Motion for Summary
Disposition ("MSD"), seeking: (1) Summary disposition; and (2) a
recommendation that "the Respondent's DEA COR as a practitioner be
revoked, based on the Respondent's lack of a state license." MSD, at
5. A copy of an April 21, 2012, Order for Summary Suspension of Medical
License issued by the Louisiana State Board of Medical Examiners
(Louisiana Board Order) was attached to the motion. The Respondent did
not file a response to the Government's motion within the time allowed.
Accordingly, the motion will be deemed unopposed.
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. 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."). DEA has long held that possession
of authority under state law to dispense controlled substances is an
essential condition for obtaining and maintaining a DEA registration.
Serenity Caf[eacute], 77 FR 35027, 35028 (2012); David W. Wang, 72 FR
54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006);
Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR
11919 (1988). 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); see
also 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);
Abraham A. Chaplan, M.D., 57 FR 55280 (1992); see also Harrell E.
Robinson, 74 FR 61370, 61375 (2009). "[R]evocation is warranted even
where a practitioner's state authority has been summarily suspended and
the State has yet to provide the practitioner with a hearing to
challenge the State's action at which he may ultimately prevail."
Kamal Tiwari, M.D., 76 FR 71604, 71606, (2011); see also Bourne
Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne Lazar Thorn, 62 FR
12847 (1997).
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). 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 FR 14945 (1997); Dominick A. Ricci, M.D., 58 FR 51104 (1993), Here,
both parties agree, and the supplied Louisiana Board Order establishes,
that the Respondent is without authorization to practice medicine or
handle controlled substances in Louisiana, the jurisdiction where the
Respondent holds the DEA COR that is the subject of this litigation.
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 (D.C. Cir. 1987) ("an agency may ordinarily
dispense with a hearing when no genuine dispute exists").\1\ At this
juncture, no genuine dispute exists over the fact that the Respondent
lacks state authority to handle controlled substances in the State of
Louisiana. 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 DEA with the
authority 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 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).
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\1\ 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 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).
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Accordingly, I hereby
Grant the Government's Motion for Summary Disposition; and
recommend that the Respondent's DEA registration be revoked forthwith
and any pending applications for renewal be denied.
Dated: July 27, 2012.
John J. Mulrooney, II,
Chief Administrative Law Judge
[FR Doc. 2012-27692 Filed 11-14-12; 8:45 am]
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