[Federal Register Volume 78, Number 204 (Tuesday, October 22, 2013)]
[Notices]
[Pages 62678-62683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24696]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 13-17]
Morris W. Cochran, M.D.; Decision and Order
On July 9, 2013, Administrative Law Judge Gail A. Randall
(hereinafter, ALJ) issued the attached Recommended Decision. Therein,
the ALJ found that there was no dispute over the material fact that
Respondent does not hold authority under the laws of the State of
Alabama, the State in which he seeks registration with the Agency, to
dispense controlled substances. R.D. at 12-13. Applying longstanding
agency precedent, which holds that the possession of authority to
dispense controlled substances under the laws of the State in which a
practitioner engages in professional practice is a prerequisite for
obtaining a registration under the Controlled Substances Act (CSA), id.
at 8-10, the ALJ granted the Government's motion for summary
disposition and recommended that I deny Respondent's application for a
registration. Id. at 13. Neither party filed exceptions to the ALJ's
Recommended Decision.
[[Page 62679]]
Thereafter, the ALJ forwarded the record to me for Final Agency Action.
Having considered the entire record, I have decided to adopt the
ALJ's factual findings, legal conclusions, and recommended order.
However, I do not adopt the ALJ's reasoning that ``[w]here the state
has suspended or revoked a registrant's license to handle controlled
substances, summary disposition of a registrant's case is only
appropriate if the registrant is afforded some mechanism to challenge
the state action.'' R.D. at 11 (citing Kamal Tiwari, 76 FR 76 FR 71604,
71605 (2011)). This is an oversimplification of the Agency's rule. As
noted in Tiwari, the only case in which the Agency has held that
summary disposition based on a registrant's lack of state authority was
inappropriate was where the Agency issued a registrant an Immediate
Suspension Order (thereby, suspending the practitioner's registration
before providing a hearing on the underlying allegations), the State
then suspended the Registrant's state authority based solely on the
Agency's issuance of the Immediate Suspension Order, and the State's
law specifically provided that a hearing was not available to challenge
a state suspension when it was based on a finding that the
practitioner's federal registration had been suspended. See 76 FR at
71606 (discussing unpublished interlocutory order in Odette Louise
Campbell, No. 09-62; also citing Tex. Health & Safety Code Sec. Sec.
481.063(e)(3), 481.063(h), 481.066(g), and Tex. Admin. Code Sec.
13.272(h)).
Thus, when the Agency subsequently sought summary disposition on
the ground that the practitioner no longer held state authority, the
Administrator noted that granting the Government's motion ``would
effectively preclude [the practitioner] from ever being able to
challenge the basis of the Immediate Suspension order and regain both
her [f]ederal and [s]tate registrations were the allegations without
merit.'' Campbell, Order Remanding for Further Proceedings, at 9.
Notwithstanding that much of the reason for that predicament stemmed
from Texas law, the Administrator noted that she had no authority to
order the State to give the practitioner a hearing and that because the
Agency initiated this process when it issued the Immediate Suspension
order, it was incumbent on the Agency to provide the practitioner
``with a meaningful opportunity to challenge the allegations which
supported the Immediate Suspension.'' \1\ Id. at 10.
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\1\ The Agency assumed that, if, following the hearing, the
Immediate Suspension was vacated, the State would also vacate its
suspension. However, in the event the State declined to vacate its
suspension, the CSA's requirement that a practitioner must possess
state authority in order to be registered with DEA, see 21 U.S.C.
802(21) & 823(f), would still have precluded the Agency from issuing
a registration to the practitioner and the practitioner's sole
remedy would have been to challenge the State's order in the state
courts.
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Here, by contrast, DEA previously provided Respondent with a
hearing on the merits of the Agency's allegations that he committed
various acts which rendered his registration inconsistent with the
public interest. See Morris W. Cochran, 77 FR 17505 (2012). Following
the hearing, which lasted three days, the ALJ issued a recommended
decision, which the Administrator adopted in large part. More
specifically, the Administrator found that Respondent violated federal
law by: (1) Prescribing methadone to treat substance abuse when he was
not registered as a narcotic treatment program, see 21 U.S.C.
823(g)(1); (2) prescribing methadone to treat substance abuse, see 21
CFR 1306.04(c) and 1306.07; (3) prescribing controlled substances
without a legitimate medical purpose, see id. 1306.04(a); (4) post-
dating prescriptions, in violation of 21 CFR 1306.05(a); and (5)
prescribing controlled substances when his registration had been
suspended, see 21 U.S.C. 843(a)(2). See 77 FR at 17517-22. Further
finding that Respondent had not rebutted the Government's prima facie
case, the Administrator revoked his registration.
Respondent nonetheless maintains that both DEA and the State ``will
continue to deny [him] access to prescribing medications based on the
other's actions,'' and that ``[t]his is an unjust an [sic] inequitable
situation as [he] fully complied with all the requirements set forth by
the Medical Licensure Commission [MLC] after the charges were first
brought against him.'' Resp. to Govt's Mot. for Summ. Disp. at 4.
However, as explained in the ALJ's decision (see R.D. at 8-9), the CSA
makes the possession of state authority a prerequisite for obtaining
and maintaining a DEA practitioner's registration. See also 21 U.S.C.
823(f) (``[t]he Attorney General shall register practitioners . . . to
dispense . . . controlled substances in schedules II, III, IV, or V . .
. if the applicant is authorized to dispense . . . controlled
substances under the laws of the State in which he practices.'')
(emphasis added); id. Sec. 802(21) (``The term `practitioner' means a
physician, dentist, veterinarian, scientific investigator . . . or
other person licensed, registered, or otherwise permitted, by the
United States or the jurisdiction in which he practices or does
research, to distribute, dispense, conduct research with respect to,
administer, or use in teaching or chemical analysis, a controlled
substance in the course of professional practice or research.'')
(emphasis added); see also Hooper v. Holder, 2012 WL 2020079, at *2
(4th Cir. 2012) (unpublished) (``Because Sec. 823(f) and Sec.
(802)(21) make clear that a practitioner's registration is dependent
upon the practitioner having state authority to dispense controlled
substances, the [Administrator's] decision to construe Sec. 824(a)(3)
as mandating revocation upon suspension of a state license is not an
unreasonable interpretation of the CSA.'').\2\
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\2\ See also 21 U.S.C. 824(a)(3) (authorizing the suspension or
revocation of a registration ``upon a finding that the registrant .
. . has had his State license or registration suspended, revoked, or
denied by competent State authority and is no longer authorized by
State law to engage in the manufacturing, distribution, or
dispensing of controlled substances'').
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As for whether this Agency has placed Respondent in an unjust
position, Respondent ignores that in the previous DEA proceeding, he
had a full and fair opportunity to contest the allegations, as well as
to put on evidence (including his evidence that he had fully complied
with the requirements of the MLC's order) to refute the Government's
contention that his continued registration is inconsistent with the
public interest. See 77 FR at 17522. Notably, Respondent did not seek
review of the Agency's decision.
And as for whether the MLC has placed him in an unjust position (or
has acted arbitrarily or capriciously), because notwithstanding his
compliance with its order, it proceeded to revoke his state authority
based on the Administrator's order, this is a matter for the Alabama
courts to decide.\3\ However, until such time as the State grants him a
new Alabama Controlled Substances Certificate, Respondent remains
without authority
[[Page 62680]]
to prescribe controlled substances under the laws of the State in which
he engages in professional practice. Because the possession of state
authority to dispense controlled substances is a prerequisite for
obtaining a registration under the CSA, I hold that the ALJ properly
granted the Government's motion for summary disposition and will
therefore deny Respondent's application.\4\
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\3\ It is noted that the Board of Medical Examiners' regulations
for the Conduct of Hearings In Contested Cases provide that:
After the Board has reached a determination, from consideration
of all of the evidence on the question of guilt or innocence of the
registrant with respect to the grounds specified in the complaint,
and before the Board determines the appropriate penalty, if any, to
be imposed, the Board may, but is not required to, receive and
consider all prior actions of the Board with respect to the
registrant's certificate of registration and any matters in
mitigation or extenuation which the registrant desires to submit.
Ala. Admin. Code r.540-x-6-.02(2). It is further noted that
under the Board's regulations, the Board had available to it a range
of sanctions, including sanctions short of revocation or outright
suspension, yet chose to revoke Respondent's state registration. See
id. r. 540-X-6-.04(9).
\4\ Before the ALJ, Respondent also argued that the Agency ``has
acted in an arbitrary and unreasonable manner'' because when he
sought to withdraw his application, the relevant Agency official
would only accept his request if he agreed not to reapply for five
years. Resp. Opp. at 3-4. Respondent should have been provided with
a written explanation as to why his request was rejected. See 5
U.S.C. 555(e) (``Prompt notice shall be given of the denial in whole
or in part of a written application, petitioner or other request of
an interested person made in connections with any agency
proceedings. Except in affirming a prior denial or when the denial
is self-explanatory, the notice shall be accompanied by a brief
statement of the grounds for the denial.'').
Respondent has not, however, identified how he has been
adversely affected by the refusal to grant his request to withdraw
his application, and under the rules of the Agency, Respondent can
reapply for a new registration at any time. However, because under
federal law, the possession of state authority is a prerequisite for
obtaining a registration, Respondent is not entitled to be
registered, or to challenge the Government's contention that his
registration is inconsistent with the public interest, until he
obtains state authority. 21 U.S.C. 823(f).
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Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well
as 28 CFR 0.100(b) and 0.104, I order that the application of Morris W.
Cochran, M.D., for a DEA Certificate of Registration as a practitioner
be, and it hereby is, denied. This Order is effective immediately.
Dated: September 26, 2013.
Thomas M. Harrigan,
Deputy Administrator.
Brian Bayly, Esq., for the Government
Mark W. Lee, Esq., for the Respondent
Recommended Rulings, Findings of Fact, Conclusions of Law, And Decision
of the Administrative Law Judge
Gail A. Randall, Administrative Law Judge:
I. Facts
The Deputy Assistant Administrator, Drug Enforcement Administration
(``DEA'' or ``Government''), issued an Order to Show Cause (``Order'')
dated January 11, 2013,\1\ proposing to deny the DEA Certificate of
Registration (``COR'') application, of Morris W. Cochran, M.D. (``Dr.
Cochran'' or ``Respondent''), as a practitioner, pursuant to 21 U.S.C.
823(f) and 824(a)(3) (2011), because Respondent does not ``have
authority to practice medicine or handle controlled substances in the
[s]tate of Alabama'' and because the Respondent's registration would be
inconsistent with the public interest, as that term is used in 21
U.S.C. 823(f). [Order, at 1].
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\1\ The Order to Show Cause was served on the Respondent on
January 22, 2013. [See Government's Notice of Service of an Order to
Show Cause.].
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The Order specifically alleged that, on February 12, 2012,
Respondent's Schedule II and IIN state registration for controlled
substances had been revoked by the Alabama Board of Medical Examiners
and Respondent was prohibited from treating patients for pain
management or drug addiction. [Id. at 2]. The Government further
alleged that, on October 9, 2012, Respondent's state controlled
substance license was revoked in its entirety.\2\ [Id.]. As a result,
the Government concluded that Respondent is currently without state
authority to handle controlled substances in Alabama, the state in
which Respondent is registered with the DEA. [Id.]. The Government
requested that I recommend to the Administrator the denial of
Respondent's pending application for a DEA COR. [Id. at 3].
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\2\ Government attached to its initial motion for summary
disposition (``Government's Motion''), which was filed February 27,
2013, a copy of the state of Alabama's order that revoked
Respondent's registration in its entirety. [Gov't Mot. I, Attach. 3,
at 1].
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On February 11, 2013, the Respondent, through counsel, filed a
timely request for hearing in the above-captioned matter.
Later, on February 11, 2013, this Court issued an Order for
Prehearing Statements in which the Government was directed to file its
Prehearing Statement on or before February 25, 2013, and the Respondent
was directed to file his Prehearing Statement on or before March 4,
2013.
On February 25, 2013, the Government filed its Motion for Summary
Judgment and Motion to Stay the Proceedings (``Government's Motion'').
Therein, the Government moved this Court to summarily dispose of the
above-captioned matter and stay the proceedings while the Government's
Motion was pending. [Gov't Mot. I, at 1].
Specifically, the Government argued that ``summary judgment'' is
warranted in this case because the Respondent currently lacks authority
to handle controlled substances in the state of Alabama and thus, the
Respondent's application for a DEA COR should be denied. [Id. at 4-8].
Additionally, the Government contended that ``summary judgment'' is
appropriate because the Respondent had adequate opportunity to
challenge the state revocation of his controlled substance registration
in Alabama. [Id. at 4-7]. To this point, the Government added that the
Respondent was afforded due process under Alabama state law because he
had a hearing before the state medical board regarding the revocation
of his state controlled substances registration. [Id. at 6-7].
Therefore, the Government requested this Court grant its motion for
``summary judgment'' and recommended that the Respondent's
``application for a DEA registration . . . be summarily denied. . . .''
[Id. at 8]. The Government further requested that ``the ALJ stay the
proceedings until an order and recommended decision is issued based on
this summary judgment motion.'' [Id.].
On March 4, 2013, Government counsel filed its Second Motion to
Stay the Proceedings while Respondent's Request to Withdraw his
Application is Pending (``Government's Second Motion''). Therein,
Government requested that the Court stay the above-captioned matter
because Dr. Cochran submitted a request to withdraw his pending
application. [Gov't Mot. II, at 1; see also Gov't Mot. II, Attachment
at 1]. The Government requested the stay of these proceedings pending
the Deputy Assistant Administrator's decision on the Respondent's
request to withdraw his application for a DEA registration, pursuant to
21 CFR 1301.16(a) (2012). [Id.]. This Court granted Government's Motion
on March 5, 2013.
On March 20, 2013, this Court ordered the parties to file a Joint
Status Report on or before April 15, 2013, regarding Respondent's
request to withdraw his application.
On April 12, 2013, the Respondent filed his Status Update
(``Respondent's Status Report I''). Therein, he explained to this Court
that he had not yet been ``informed as to the DEA's decision on his
request to withdraw the application.'' [Resp't Status Report I, at 1].
Accordingly, the Respondent requested ``that the ALJ continue to stay
this action until the DEA reaches a decision on Dr. Cochran's request
to withdraw his application.'' [Id.].
On April 15, 2013, the Government filed its Status Report
(``Government's Status Report I''). Therein, the Government informed
this Court that the Government had sent the Respondent's request to
withdraw his application to the Deputy Assistant Administrator, Office
of Diversion Control, but had not yet received a decision from him.
[Gov't Status Report I, at 1-2].
On April 16, 2013, this Court ordered the parties to file a second
Joint Status Report on or before April 29, 2013.
On April 29, 2013, the Respondent filed his Status Update
(``Respondent's
[[Page 62681]]
Status Report II''). Therein, the Respondent explained to the Court
that ``[t]o date, Dr. Cochran has not been informed as to the DEA's
decision on his request to withdraw the application.'' [Resp't Status
Report II, at 1]. Accordingly, the Respondent ``request[ed] that the
ALJ continue to stay this action until the DEA reaches a decision on
Dr. Cochran's request to withdraw his application.'' [Id.]
Later, on April 29, 2013, the Government filed its Status Report
and Second Request to Stay Proceedings while Respondent's Request to
Withdraw his Application is Pending with the Deputy Assistant
Administrator's Office (``Government's Status Report II''). Therein,
the Government confirmed that the ``Deputy Assistant Administrator
still has this matter and [Government counsel] has been informed that a
decision will come shortly.'' [Gov't Status Report II, at 1].
Accordingly, the Government requests ``that the proceedings be stayed
until the Deputy Assistant Administrator issues a decision.'' [Id.]
On April 30, 2013, this Court ordered the parties to file a third
Joint Status Report no later than May 13, 2013 regarding Respondent's
request to withdraw his application for a DEA registration.
On May 6, 2013, Respondent filed a Status Update, wherein the
Respondent indicated that he, once again, ``has not been informed as to
the DEA's decision on his request to withdraw the application.''
[Resp't Status Report III, at 1]. Respondent requested that the ALJ
continue this action until the DEA reaches a decision on Respondent's
withdrawal request. [Id.].
On May 14, 2013, Government filed a Status Report, Third Request to
Stay Proceedings While Respondent's Request to Withdraw His Application
is Pending with the Deputy Assistant Administrator's Office, and
Request to Accept this Status Report One Day Late. Government confirmed
that the Deputy Assistant Administrator had not yet made a decision on
Respondent's withdrawal request. [Gov't Status Report III, at 1].
Government's untimely filing was the result of waiting until late
afternoon for a response from the Deputy Assistant Administrator's
office about this matter. [Id.]. Government requested that I stay the
proceedings until a decision is reached. [Id.].
On May 17, 2013, this Court continued the stay on the above-
captioned matter and ordered the parties to file a fourth Joint Status
Report no later than June 13, 2013.
On June 11, 2013, Government filed a Status Report (``Government's
Status Report IV'') indicating that on ``May 17, 2012 (sic), the Deputy
Assistant Administrator's office notified [Government Counsel] that
DEA' (sic) Office of Diversion will let Dr. Cochran withdraw his
application `only on the condition that [Dr.] Cochran not re-apply for
a period of five years.''' [Gov't Status Report IV, at 2]. Government's
Status Report IV did not, however, indicate whether Respondent had
accepted the offer. [See id.]. Government also renewed its request that
I ``grant the Government's Motion for Summary Judgment and issue a
Recommendation that Respondent's DEA registration be revoked.'' \3\
[Id.].
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\3\ Government counsel must have intended to recommend that I
deny Respondent's application for a DEA COR, instead of revoke
Respondent's registration. [See Order, at 2 ] 4].
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On June 12, 2013, this Court ordered Respondent to respond to
Government's Status Report IV, which contained the Deputy Assistant
Administrator's offer for Respondent's withdrawal of his application.
Specifically, I asked the Respondent to address the Deputy Assistant
Administrator's withdrawal offer and the current status of his
authority to handle controlled substances in the state of Alabama.
Later, on June 12, 2013, the Respondent, through counsel, filed a
Response to Government's Status Report IV. [Resp't Resp., at 1].
Respondent noted that the Government's most recent filing ``was the
first time that the [Respondent had] been notified that the DEA Office
of Diversion would only allow Dr. Cochran to withdraw his application
for DEA registration if he waited five years before he applied again.''
[Id.]. Additionally, Respondent requested documentation of the DEA
Office of Diversion's offer, which was allegedly provided to the
Government counsel on May 17, 2013.\4\ [Id.].
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\4\ Government counsel acknowledged on June 14, 2013, during a
telephonic conference with the parties, that he had intended to
write May 17, 2013, rather than May 17, 2012, in the filing. [Gov't
Status Report IV, at 2].
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On June 14, 2013, I held a telephonic conference with the parties.
The parties represented their positions on the issue of Respondent's
request to withdraw his application, including whether I should order
the disclosure of the email from the Deputy Assistant Administrator
that contained the withdrawal offer.
On June 24, 2013, the Respondent, through counsel, filed a Response
to Government's Motion for Summary Judgment. [Resp't Resp. II, at 1].
Respondent explained that on January 25, 2012, Respondent appeared
before the Alabama Medical Licensure Commission (``AMLC'') concerning
the same actions that resulted in the suspension of Respondent's former
DEA COR on September 22, 2010. [Id.]. AMLC initially permitted
Respondent to maintain his state registration for Schedules III-V,
subject to several conditions, with which Respondent said he complied.
[Id.]. However, Respondent indicated that DEA subsequently revoked his
registration, which prompted the AMLC to move to revoke Respondent's
state registration. [Id. at 2]. Respondent explained that his state
registration was revoked October 19, 2012.\5\ [Id.]. Thus, when DEA
reviewed his new application for registration, which was filed
September 27, 2012, the Agency instituted action to deny it based on
Respondent's lack of state authority to handle controlled substances.
[Id.].
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\5\ The actual date of the revocation was October 9, 2012, as
evidenced by the order itself. [Gov't Mot I., Attach. 3, at 1].
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Respondent also contended that he has ``been placed in an
indefinite back and forth between the DEA and the Alabama Board of
Medical Examiners.'' [Id. at 3]. Furthermore, Respondent said he
appealed the ALMC's ``decision to revoke his prescribing authority'' in
the Alabama Court of Civil Appeals. [Id. at 4]. Respondent requested I
deny the Government's motion for summary disposition, or in the
alternative, order the Government to accept Respondent's request for
withdrawal without any restrictions on his reapplication. [Id.].
Later, on June 24, 2013, I issued a Memorandum and Order (``MO'')
addressing the statutory and regulatory basis for withdrawing an
application for a DEA COR. [MO, at 4-6]. I also explained that it would
not be appropriate in this case to permit Respondent to file an
interlocutory appeal with the Administrator for review of the
withdrawal offer terms. [Id. at 6]. I then ordered Respondent to notify
this Court no later than Friday, June 28, 2013 of whether he wants to
move forward with this administrative proceeding or accept the Deputy
Assistant Administrator's offer for withdrawal. [Id. at 7].
Respondent has failed to notify this Court of his decision as to
how he plans to proceed with his case. I interpret Respondent's silence
to indicate that he has waived his opportunity to accept the Deputy
Assistant Administrator's withdrawal offer. I further interpret his
silence to mean that he plans to pursue his case through the
administrative process. As a result, I will now address Government's
motion for summary disposition, which was contained in the February 25,
2013 motion and renewed
[[Page 62682]]
in the June 11, 2013 status report. [Gov't Mot. I, at 1; Gov't Status
Report IV, at 2]. I will also consider the arguments Respondent raised
in his Response to Government's motion for summary disposition. [See
generally Resp't Resp. II].
II. Discussion
A. State Authority To Handle Controlled Substances
The Controlled Substances Act (``CSA'') and long-standing agency
precedent provide that having state authority to handle controlled
substances is a prerequisite to obtaining a DEA registration. See 21
U.S.C. 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''); 21
U.S.C. 802(21) (2011) (defining ``practitioner'' as ``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 Romeo J. Perez, M.D., 62 FR 16,193, 16,193 (DEA 1997);
Demetris A. Green, M.D., 61 FR 60,728, 60, 729 (DEA 1996); Dominick A.
Ricci, M.D., 58 FR 51,104, 51,105 (DEA 1993).
Therefore, the DEA does not have statutory authority under the CSA
to grant the application of a practitioner, who lacks state authority
to handle controlled substances. Graham Travers Schuler, M.D., 65 FR
50,570, 50,571 (DEA 2000); see also 21 U.S.C. 823(f); 21 U.S.C.
824(a)(3) (stating a registration 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''); Joseph Baumstarck, 74 FR 17,525, 17,527 (DEA 2009)
(stating that the ``ALJ applied the Agency's long-settled ruled (sic)
that a practitioner may not maintain [a] DEA registration if he lacks
authority to handle controlled substances under the laws of the state
in which he practices'').
Consequently, the Deputy Administrator has found that denial of an
application for registration through summary disposition is appropriate
where a respondent lacks state authority to handle controlled
substances. George Thomas, PA-C, 64 FR 15,811, 15,812 (DEA 1999)
(denying Respondent's application for registration upon finding that
the ALJ properly granted Government's motion for summary disposition
because Respondent was without state authority to handle controlled
substances in the state where he sought DEA registration); Robert G.
Crummie, M.D., 76 FR 71,369, 71,369-70 (DEA 2011) (denying any pending
applications for registration upon adopting the ALJ's recommended
decision, which granted Government's motion for summary disposition on
the basis that Respondent lacked state authority to handle controlled
substances).
Here, the Respondent does not dispute that he currently lacks state
authority to handle controlled substances. Respondent indicated that
his state registration was revoked October 19, 2012.\6\ [Resp't Resp.
II, at 2]. According to agency precedent, even though Respondent is
appealing the AMLC decision in state court, he currently lacks state
authority to handle controlled substances for the purpose of obtaining
a DEA registration. Therefore, I find that summary disposition, which
recommends denial of Respondent's application, is appropriate.
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\6\ Documentary evidence provided by the Government indicates
that the state order for revocation actually occurred on October 9,
2012. [Gov't Mot. I, Attach. 3, at 1].
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B. Right to Hearing and Due Process Rights
With the central issue of state authority resolved, I turn to
Respondent's additional argument that he has ``been placed in an
indefinite back and forth between the DEA and the Alabama Board of
Medical Examiners.'' [Resp't Resp. II, at 2]. Although not explicitly
styled as a due process argument, I find that Respondent is impliedly
arguing that his inability to obtain a state registration without a DEA
registration, and vice versa, is a denial of his due process rights.
See Kamal Tiwari, M.D., 76 FR 71,604, 71,605 (DEA 2011).
A respondent has a constitutionally protected property interest in
his DEA registration. See Lujan v. G & G Fire Sprinklers, Inc., 532
U.S. 189, 196 (2001) (finding that a claimant has a right to due
process where ``the claimant was denied a right by virtue of which he
was presently entitled either to exercise ownership dominion over real
or personal property, or to pursue a gainful occupation''); see also
Wedgewood Village Pharmacy v. Aschcroft, 293 F. Supp. 2d 462, 469-70
(D. N.J. 2003) (finding that ``[d]epriving [a company] of its rights to
dispense and receive controlled drugs without notice and a hearing
would violate . . . due process'').
Where the state has suspended or revoked a registrant's license to
handle controlled substances, summary disposition of a registrant's
case is only appropriate if the registrant is afforded some mechanism
to challenge the state action. Kawal Tiwari, M.D., 76 FR at 71,605
(finding summary disposition was appropriate because the ALJ correctly
concluded that Respondent had a basis for seeking substantive review of
his state suspension under state law, even though Respondent argued he
could not request a hearing until the state administrative board issued
an order to show cause, which it had not); Hichman K. Riba, D.D.S., 73
FR 75,773, 75,774 (DEA 2008) (finding summary disposition appropriate
where Respondent was seeking judicial review of state proceedings);
Bourne Pharmacy, Inc., 72 FR 18,273, 18,274 (DEA 2007) (finding summary
disposition appropriate where the state revocation was ``pending a
final decision on the merits'').
The state of Alabama affords the Respondent due process through a
hearing entitlement and opportunity for appellate review. Specifically,
the Code of Alabama provides that ``[b]efore denying, suspending, or
revoking a registration . . . the certifying boards shall serve upon
the applicant or registrant an order to show cause.'' Ala. Code Sec.
20-2-53(a) (2013). The statute indicates that the order to show cause
``call[s] upon the applicant or registrant to appear before the
certifying board.'' Id. Such proceedings are ``conducted in accordance
with the Alabama Administrative Procedure Act. . . .'' Id. After a
decision is rendered by the state administrative board, an applicant or
registrant may then ``obtain judicial review thereof by filing a
written petition for review. . . .'' Id. Sec. 20-2-53(b). The proper
court for appealing such matters is the Alabama Court of Civil Appeals.
Id. Sec. 34-24-380; see also Brunson, M.D. v. Alabama State Board of
Medical Examiners, 69 So.3d 913, 914 (Ala. Civ. App. 2011).
Here, Respondent had an opportunity to appear before the AMLC
during a hearing about his state authority to handle controlled
substances. [Resp't Resp. II, at 1; Gov't Mot. I, at 6-7]. Thus, I find
that Respondent's due process rights are protected, even if I recommend
denial of his application for DEA COR through summary disposition. With
regards to Respondent's appeal of the AMLC decision that revoked his
state registration, I find that it is within the discretion of the
Alabama Court of Civil Appeals to decide whether Respondent's case will
be heard or resolved through summary judgment. Finally, I acknowledge
that Respondent's Alabama registration was
[[Page 62683]]
revoked in response to DEA's revocation and Respondent alleges he
cannot obtain a new state registration without a DEA COR. However,
Respondent's due process rights have not been denied because he
previously had an opportunity to be heard at a state administrative
hearing before the AMLC. Further, the Respondent is actively pursuing
his state court appellate right.
C. Material Question of Fact
It is well-settled that when there is no material question of fact
involved, or when the facts are agreed upon, there is no need for a
plenary, administrative hearing. See Larry Elbert Perry, M.D., 77 FR
67,671 (DEA 2012); Treasure Coast Specialty Pharmacy, 76 FR 66,965 (DEA
2011); Jesus R. Juarez, M.D., 62 FR 14,945 (DEA 1997); Dominick A.
Ricci, M.D., 58 FR 51,104 (DEA 1993). Congress did not intend for
administrative agencies to perform meaningless tasks. See Puerto Rico
Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 604-05 (1st Cir. 1994);
NLRB v. Int'l Assoc. of Bridge, Structural & Ornamental Ironworks, AFL-
CIO, 549 F.2d 634 (9th Cir. 1977); Philip E. Kirk, M.D., 48 FR 32,887
(1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).
Here, the parties do not dispute that the Respondent lacks state
authority to handle controlled substances in Alabama. Thus, there is no
material question of fact to be adjudicated.
III. Conclusion, Order, and Recommendation
DEA is bound by federal statute to deny applications for a DEA COR,
where an applicant lacks state authority. 21 U.S.C. 823(f), 824(a)(3);
see also Graham Travers Schuler, 65 FR at 50,571; George Thomas, PA-C,
64 FR at 15,812. Here, there is no genuine dispute of material fact
that Respondent lacks state authority to handle controlled substances
in the state where he seeks to obtain a DEA registration. Furthermore,
Respondent's due process rights are protected, since he had an
opportunity to be heard by the AMLC regarding his state authority to
handle controlled substances. Therefore, summary disposition for the
Government is appropriate.\7\
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\7\ This opinion does not reach the other factual issues made in
the Order to Show Cause. Rather, this opinion solely addresses the
Respondent's loss of his ability to handle controlled substances in
the state of Alabama.
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Accordingly, I hereby
Grant the Government's motion for summary disposition.
I also forward this case to the Deputy Administrator for final
disposition. I recommend that the Deputy Administrator deny
Respondent's pending application for a DEA COR.
Dated: July 9, 2013.
Gail A. Randall,
Administrative Law Judge.
[FR Doc. 2013-24696 Filed 10-21-13; 8:45 am]
BILLING CODE 4410-09-P