Registrant Actions - 2013
[Federal Register Volume 78, Number 35 (Thursday, February 21, 2013)]
[Notices]
[Pages 12091-12092]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03878]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 13-4]
Brian Earl Cressman, M.D.; Decision and Order
On December 5, 2012, Chief Administrative Law Judge (ALJ) John J.
Mulrooney, II, issued the attached Amended Order Granting the
Government's Motion for Summary Disposition and Recommended Decision
(hereinafter, Recommended Decision). Therein, the ALJ found that
Respondent is no longer authorized under Alabama law to dispense
controlled substances and therefore recommended that his DEA
Certificate of Registration, BC4785614, be revoked. See Recommended
Decision at 3-5. Neither party filed exceptions to the Recommended
Decision. Having reviewed the entire record, I have decided to adopt
the ALJ's Recommended Decision in its entirety including his
recommended order. See Hooper v. Holder, 2012 WL 2020079,*2 (4th Cir.
2012).
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 BC4785614, issued to Brian Earl Cressman, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Brian Earl Cressman, M.D., to renew or modify this registration, be,
and it hereby is, denied. This Order is effective March 25, 2013.
Dated: February 12, 2013.
Michele M. Leonhart,
Administrator.
Theresa Krause, Esq., for the Government.
Brian Earl Cressman, M.D., pro se, for the Respondent.
Amended Order Granting the Government's Motion for Summary Disposition
and Recommended Decision
Chief Administrative Law Judge John J. Mulrooney, II. On October
25, 2012, the Administrator of the Drug Enforcement Administration (DEA
or Government) issued an Order to Show Cause and Immediate Suspension
of Registration (OSC/ISO) immediately suspending, and proposing to
revoke the DEA Certificate of Registration (COR), Number BC4785614, of
Brian Earl Cressman, M.D. (Respondent), pursuant to 21 U.S.C. 824(a)(3)
and (4) (2006), because 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). In the OSC/ISO, the Government alleges
as grounds for revocation, inter alia, that the Respondent is "without
authority to handle controlled substances in the [s]tate of Alabama."
OSC/ISO at 1.
On November 14, 2012, the DEA Office of Administrative Law Judges
(OALJ) received from the Respondent, representing himself, pro se, a
timely filed request for hearing (Hearing Request). Therein, the
Respondent conceded that his Alabama Controlled Substance Certificate
(ACSC) was revoked in February of 2012. Resp't Hrng. Req., at 1. The
same day, this tribunal issued an order (Briefing Schedule): (1)
Directing the Government to "provide evidence to support the
allegation that the Respondent lacks state authority to handle
controlled substances" on or before Wednesday, November 21, 2012; (2)
setting a deadline of November 21, 2012 for the Government to file a
motion for summary disposition; and (3) setting a deadline of November
30, 2012 for the Respondent to respond to any motion for summary
disposition. Briefing Schedule, at 1-2.
On November 20, 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 a June 21, 2010 Order issued by the Alabama Board of Medical
Examiners revoking the Respondent's ACSC was attached to the MSD. MSD
App. A. Additionally, the Government included a printout from the
Alabama State Board of Medical Examiners Web site dated November 15,
2012, which lists the status of the Respondent's ACSC as revoked, and
also a verification of controlled substances registration, dated
November 15, 2012, from the Alabama State Board of Medical Examiners,
confirming the revocation. MSD Apps. B, C. The Respondent did not file
a response to the Government's motion within the time allowed.
On December 3, 2012, this tribunal issued an "Order Granting the
Government's Unopposed Motion for Summary Disposition and Recommended
Decision," (Summary Disposition Order/Recommended Decision). On the
same day the Summary Disposition Order/Recommended Decision was issued,
the Respondent filed with the tribunal an untitled letter (Post Order
Letter). This amended order has been issued to incorporate the
consideration of the matters set for in the Respondent's Post Order
Letter, and supersedes the previously-issued Summary Disposition Order/
Recommended Decision in all respects.
In his Post Order Letter, the Respondent represents "that the
Alabama revocation decision, was dismissed in a Montgomery circuit
court by the Honorable Judge Hardwick." Post Order Letter, at 1. In
support of this assertion, the Respondent provided a copy of an August
25, 2010 Order from the Circuit Court of Montgomery County (Hardwick,
J.). Id. at 2-3. Contrary to the Respondent's assertion, this Order did
not dismiss the Alabama Board Order revoking the Respondent's state
controlled substance privileges, but stayed the Order "pending
judicial review by the Court of Civil Appeals." Id. at 3. In a
subsequent, published decision, the Alabama Court of Civil
[[Page 12092]]
Appeals dismissed the Respondent's appeal of the Alabama Board Order on
procedural grounds. Cressman v. Ala. Bd. of Med. Exam'rs, 72 So. 3d 679
(Ala. Civ. App. 2011). Moreover, as discussed, supra, in his Request
for Hearing, the Respondent has already conceded that his Alabama
controlled substance privileges were "revoked in Feb[ruary] 2012."
Resp't Req. for Hrng at 1. Therefore, the Respondent's letter
notwithstanding, it is beyond argument that the Respondent does not
currently possess authority to handle controlled substances in the
State of Alabama, the state of his DEA COR.
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 (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 FR 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. 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 ed. Reg. 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).\1\ "[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 Fed Reg. 18273, 18274 (2007); Anne Lazar
Thorn, 62 FR 12847 (1997).
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\1\ But see 21 U.S.C. 824(a)(3) ("A registration pursuant to
section 823 of this title to manufacture, distribute, or dispense a
controlled substance may be suspended or revoked by the Attorney
General upon a finding that the registrant * * * has had his State
license or registration suspended, revoked, or denied by competent
State authority. * * *") (emphasis added).
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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 Alabama Board Order and other
documentation establish, that the Respondent is without authorization
to handle controlled substances in Alabama,\2\ the jurisdiction where
the Respondent holds the DEA COR that is the subject of this
litigation.
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\2\ The Respondent's representation that he has secured
employment in Texas is of no moment here. See Shahid Musud Siddiqui,
M.D., 61 FR 14818 (1996) (a registrant's controlled substance
privileges in a state outside the state of his DEA registration is
irrelevant).
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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").\3\ At this
juncture, no genuine dispute exists over the fact that the Respondent
lacks state authority to handle controlled substances in the State of
Alabama. 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. In view
of this determination, it is unnecessary to address the remaining
allegations contained in the OSC/ISO.
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\3\ 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: December 5, 2012.
John J. Mulrooney, II,
Chief Administrative Law Judge.
[FR Doc. 2013-03878 Filed 2-20-13; 8:45 am]
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NOTICE: This is an unofficial version. An official version of this publication may be obtained
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