[Federal Register Volume 80, Number 149 (Tuesday, August 4, 2015)]
[Notices]
[Pages 46324-46326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19119]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 15-16]
Pedro E. Lopez, M.D.; Decision and Order
On March 20, 2015, Chief Administrative Law Judge (CALJ) John J.
Mulrooney, II, issued the attached Recommended Decision. Neither party
filed exceptions to the Recommended Decision.
Having reviewed the record in its entirety, I adopt the CALJ's
findings of fact,\1\ conclusions of law, and
[[Page 46325]]
recommended order. Accordingly, I will order that Respondent's DEA
Certificate of Registration be revoked and that any pending
applications to renew or modify his registration be denied.
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\1\ I take official notice of the fact that, according to the
registration records of the Agency, Respondent retains an active
registration as of this date. Pursuant to 21 CFR 1316.59(e),
Respondent may controvert this finding by filing a properly
supported motion, no later than 10 days from the date of this Order.
Notwithstanding that the language of section 824(a) authorizes
either the suspension or revocation of a registration upon the
making of one of the five findings enumerated therein, the Agency
has consistently interpreted the CSA as mandating revocation where a
practitioner's state authority has been suspended or revoked. As the
Fourth Circuit has held, ``[b]ecause 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.'' Hooper v.
Holder, 2012 WL 2020079, *2 (4th Cir. 2012) (unpublished).
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Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a)(3), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration BL2132049, issued to Pedro E. Lopez, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Pedro E. Lopez, M.D., to renew or modify his registration, be, and it
hereby is, denied. This Order is effective September 3, 2015.
Dated: July 27, 2015.
Chuck Rosenberg,
Acting Administrator.
Brian Bayly, Esq., for the Government.
Alan Rhine, Esq., for the Respondent.
ORDER GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY DISPOSITION AND
RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION
OF THE ADMINISTRATIVE LAW JUDGE
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 February 6,
2015, proposing to revoke the DEA Certificate of Registration (COR),
Number BL2132049, of Pedro E. Lopez, M.D. (Respondent), pursuant to 21
U.S.C. 824(a)(3) and 21 U.S.C. 823(f), and deny any pending
applications for renewal or modification of the COR, pursuant to 21
U.S.C. 823(f).
In the OSC, the Government alleges that the Respondent is, inter
alia, without ``authority to handle controlled substances in the State
of Illinois'' as grounds for revocation of the Respondent's DEA
registration. On March 6, 2015, the Respondent, by counsel, filed a
Request for Hearing in the above-captioned matter. The Request for
Hearing stated that a hearing is appropriate because ``the Respondent
has instituted proceedings to restore his authority to handle
controlled substances in Illinois.'' Req. for Hrg. at 1.
Consistent with my direction, the parties have briefed the issues.
On March 11, 2015, the Government filed a Motion for Summary
Disposition and Evidence in Support of its Motion for Summary
Disposition (Motion for Summary Disposition), seeking that this
tribunal issue a Recommended Decision granting the Government's Motion
on the ground that the Respondent is currently without state authority
to handle controlled substances. Mot. for Summary Disp. at 1. According
to the Government's Motion, the State of Illinois, Department of
Financial and Professional Regulation (IDFPR) suspended the
Respondent's license to practice medicine, effective March 12, 2014,
and that suspension order remains in effect. Id. Attached to the
Government's Motion is the IDFPR Order dated March 12, 2014 suspending
the Respondent's state Physician and Surgeon License No. 036.074815 on
the grounds that the Respondent failed to comply with the provisions an
Agreement of Care, Counseling and Treatment that he had entered into
with IDFPR.\2\ Id., Attachment 1 at 1-2. Under the IDPFR Order, the
Respondent's state license was indefinitely suspended for a minimum
period of six months. Id., Attachment 1 at 2.
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\2\ No objection to consideration of the Government's exhibit,
or factual challenge to the matters asserted therein was asserted by
the Respondent.
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On March 20, 2015, the Respondent, through counsel, filed a reply
styled ``Response to the Government's Motion for Summary Disposition
and Evidence in Support of its Motion for Summary Disposition''
(Respondent's Reply). In his Reply, the Respondent alleges that he is
in the process of seeking reinstatement of his medical license from the
state of Illinois. Resp't Reply at 2. In opposing the Government's
requested relief, the Respondent avers that inasmuch as he is currently
not prescribing controlled substances, granting a hearing, or at least
deferring adjudication until his state privileges are restored presents
no cognizable danger to the public. Id. at 2-3.
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) (2015). 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) (2012) (``[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 21 U.S.C. 823(f) (2012) (``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).\3\ ``[R]evocation is warranted
even where a practitioner's state authority has been summarily
suspended and the State has yet to provide the practitioner
[[Page 46326]]
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). Additionally, Agency precedent has
established that the existence of other proceedings in which the
Respondent is involved is not a basis upon which to justify a stay of
DEA administrative enforcement proceedings. Grider Drug #1 & Grider
Drug #2, 77 FR 44069, 44104 n.97 (2012).
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\3\ But see 21 U.S.C. 824(a)(3) (2012) (``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,
the supplied IDFPR Order establishes, and the Respondent does not
contest, that the Respondent is currently without authorization to
handle controlled substances in Illinois, 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'').\4\ At this
juncture, no genuine dispute exists over the fact that the Respondent
lacks state authority to handle controlled substances in the state of
Illinois. 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.
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\4\ 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 further
DENY the Respondent's Request for Stay; and further
RECOMMEND that the Respondent's DEA registration be REVOKED
forthwith and any pending applications for renewal be DENIED.
Dated: March 20, 2015.
JOHN J. MULROONEY, II,
Chief Administrative Law Judge.
[FR Doc. 2015-19119 Filed 8-3-15; 8:45 am]
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