80 FR 57391 - James Alvin Chaney, M.D.: Decision and Order
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 80, Issue 184 (September 23, 2015)
Drug Enforcement Administration
Federal Register Volume 80, Issue 184 (September 23, 2015)
| Page Range | 57391-57393 | |
| FR Document | 2015-24128 |
[Federal Register Volume 80, Number 184 (Wednesday, September 23, 2015)] [Notices] [Pages 57391-57393] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-24128] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 15-25] James Alvin Chaney, M.D.: Decision and Order On July 23, 2015, Chief Administrative Law Judge (CALJ) John J. Mulrooney, II, issued the attached Recommended Decision (cited as R.D.). Respondent filed Exceptions to the Recommended Decision. In his Recommended Decision, the CALJ found that on October 21, 2014, the Commonwealth of Kentucky, Board of Medical Licensure, had issued Respondent an Emergency Order of Suspension against his medical license. R.D. at 2. The CALJ further found that on November 17, 2014, the Board issued a final order that affirmed the emergency order of suspension ``and that the suspension order remains in effect.'' Id. Noting that the Controlled Substances Act defines ``term `practitioner' [to] mean[ ] a physician . . . licensed, registered, or otherwise permitted, by . . . the jurisdiction in which he practices . . . to . . . dispense [or] administer . . . a controlled substance in the course of professional practice,'' id. at 3 (quoting 21 U.S.C. 802(21), as well as that the registration provision applicable to practitioners directs the Attorney General to ``register [a] practitioner[] . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices,'' id. (quoting 21 U.S.C. 823(f)), the CALJ then noted that the Agency ``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.'' Id. (collecting cases). Because there is no dispute that ``Respondent lacks state authority to handle controlled substances in'' Kentucky, the CALJ granted the Government's motion for summary disposition and recommended that Respondent's registration be revoked.\1\ Id. at 5. --------------------------------------------------------------------------- \1\ While the Government alleged in the Order to Show Cause that Respondent's registration does not expire until August 31, 2016, Show Cause Order, at 1; and in his hearing request, Respondent states that he ``holds a medical license . . . and a DEA registration,'' Hearing Request, at 1; the Agency is still required to establish that it has jurisdiction to act. See Sharad C. Patel, 80 FR 28693, 28694 n.3 (2015) (``Even in summary disposition proceedings which are based on a lack of state authority, the ALJ is obligated to make a finding establishing that the Agency has jurisdiction.''); see also 5 U.S.C. 706(2)(C) (directing reviewing courts ``to hold unlawful and set aside agency action, findings and conclusions found to be . . . in excess of statutory jurisdiction''). This generally requires the ALJ to make a finding either that a respondent retains an active registration or has submitted an application for registration. In the interest of conducting an expeditious review of this matter, I have taken official notice of Respondent's registration record with the Agency and find that his registration does not expire until August 31, 2016. See 5 U.S.C. 556(e); 21 CFR 1316.59(e). However, in the future, where a recommended decision lacks the requisite finding, I will remand the matter for this purpose. --------------------------------------------------------------------------- In his Exceptions, Respondent argues that Board's Emergency Order suspending his license ``is not a final order as it has been appealed and is currently being reviewed by the Kentucky Court of Appeals.'' Exceptions at 1. He argues that the CALJ's Recommended Decision is therefore ``based upon an order that is not final and consequently will constitute arbitrary and capricious action.'' Id. at 2. Finally, Respondent contends that ``[s]ummary judgment is improper because issues of fact exist concerning the enforceability of the temporary suspension of [his] medical license given its unconstitutionality.'' Id. I reject Respondent's contentions. Putting aside whether--in light of the state Hearing Officer's issuance of the ``Final Order Affirming The Emergency Order of Suspension''--Respondent has accurately described the procedural posture of the state licensing matter, based on the plain language of sections 802(21) and 823(f), this Agency has held repeatedly that ``the controlling question'' in a proceeding brought under 21 U.S.C. 824(a)(3) is whether the holder of a DEA registration ```is currently authorized to handle controlled substances in the [S]tate.''' James L. Hooper, 76 FR 71371, 71371 (2011) (quoting Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), pet. for rev. [[Page 57392]] denied, Hooper v. Holder, 481 Fed.Appx. 826 (4th Cir. 2012). Thus, it is of no consequence that the State has employed summary process in suspending Respondent's state license and that the Board's ``order remains subject to challenge in either [further] administrative or judicial proceedings.'' Patel, 80 FR at 28694; see also Gary Alfred Shearer, 78 FR 19009, 19012 (2013); Michael G. Dolin, 65 FR at 5661, 5662 (2000). As for Respondent's contention that summary disposition is inappropriate ``because issues of fact exist concerning the enforceability of the temporary suspension'' order, the only fact that is material in this proceeding is whether Respondent ``is currently authorized to handle controlled substances'' by the State. Hooper, 76 FR at 71371; cf. Sunil Bhasin, 72 FR 5082, 5083 (2007) (holding that a registrant cannot collaterally attack the results of a state administrative or criminal proceeding in a proceeding brought under section 304 (21 U.S.C. 824(a)). Accordingly, because the suspension order remains in effect, I adopt the Recommended Decision \2\ and will order that Respondent's registration be revoked. --------------------------------------------------------------------------- \2\ 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, see R.D. at 4 n.1, 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 sections 823(f) and 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 section 824(a)(3) as mandating revocation upon suspension of a state license is not an unreasonable interpretation of the CSA.'' Hooper, 481 Fed.Appx. at 828. --------------------------------------------------------------------------- Order Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 28 CFR 0.100(b), I order that DEA Certificate of Registration BC3278492 issued to James Alvin Chaney, M.D., be, and it hereby is, revoked. I further order that any application of James Alvin Chaney, M.D., to renew or modify his registration be, and it hereby is, denied. This Order is effective immediately.\3\ --------------------------------------------------------------------------- \3\ For the same reasons that lead the Board to order the emergency suspension of Respondent's medical license (i.e., his indictment on various counts of the unlawful distribution of controlled substances), I find that the public interest necessitates that this Order be effective immediately. 21 CFR 1316.67. Dated: September 15, 2015. Chuck Rosenberg, Acting Administrator. Brian Bayly, Esq., for the Government. Lisa English Hinkle, 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 May 21, 2015, seeking to revoke the DEA Certificate of Registration (COR), Number BC3278492, of James Alvin Chaney, 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 Commonwealth of Kentucky'' as grounds for revocation of the Respondent's DEA registration. On July 2, 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 review of [the Kentucky Board of Medical Licensure's] illegal suspension by emergency order of [the Respondent's] medical license is currently on appeal before the Kentucky Court of Appeals . . .'' and because ``any action concerning [the Respondent's DEA COR] . . . is premature . . . .'' Req. for Hrg. at 7. Consistent with my direction, the parties have briefed the issues. On July 9, 2015, the Government filed a Motion for Summary Disposition Based on Respondent's Lack of State Authorization to Handle Controlled Substances and Submission of Evidence in Support of Such Motion (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 Commonwealth of Kentucky, Board of Medical Licensure (BML) suspended the Respondent's license to practice medicine effective October 21, 2014, and that suspension order remains in effect. Id. Attached to the Government's Motion is the BML Emergency Order of Suspension dated October 21, 2014 suspending the Respondent's state license No. 28914 on the grounds that there was probable cause to believe that the Respondent's practice constituted a danger to the health, welfare, and safety of his patients or the general public, as evidenced by the Respondent's indictments for crimes related to controlled substances. Id. at 1-2; Attachment 1 at 1-4. Also attached to the Government's Motion is the BML Final Order Affirming the Emergency Order of Suspension, dated November 17, 2014. Attachment 2 at 17. On July 23, the Respondent, through counsel, filed a reply styled ``Response to Government's Motion for Summary Judgment'' (Respondent's Reply). In his Reply, the Respondent alleges that his situation is distinguishable from Agency precedent mandating revocation for lack of state authority, Resp't Reply at 4-5, because the BML's suspension of his license was ``based on the [BML's] application of an incorrect rule of law and an unconstitutional regulation.'' Id. at 5. In opposing the Government's requested relief, the Respondent also avers that inasmuch as he is not currently practicing medicine or prescribing controlled substances, maintenance of his DEA COR constitutes no danger to the public, and that he ``should not be penalized'' by the DEA because his underlying federal criminal charges have not yet been resolved. Id. at 8. 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 the 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 [[Page 57393]] 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, M.D., 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, M.D., 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 FR 18273, 18274 (2007); Anne Lazar Thorn, M.D., 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). --------------------------------------------------------------------------- \1\ 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). Thus, notwithstanding the Agency's extensive body of internal precedent to the contrary, the plain language of section 824(a)(3) provides that loss of state authority constitutes a discretionary--not mandatory-- basis for revocation. However, inasmuch as the Agency precedent is clear on the matter, I am without authority or inclination to render a contrary interpretation. --------------------------------------------------------------------------- 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 BML Order establishes, and the Respondent does not contest, that the Respondent is currently without authorization to handle controlled substances in Kentucky, 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'').\2\ While not unsympathetic to the procedural issues raised by the Respondent in his state administrative proceedings, under current Agency precedent, the disposition of the Government's motion is wholly dependent upon a single issue: whether he continues to possess authority under state law to handle controlled substances--which he does not. --------------------------------------------------------------------------- \2\ Even assuming, arguendo, the possibility that the Respondent's state controlled substances privileges could be reinstated, summary disposition would still be warranted because under Agency precedent ``revocation is also appropriate when a state license has been suspended, but with the possibility of future reinstatement,'' Rodriguez, 70 FR 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). --------------------------------------------------------------------------- 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 he 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. Accordingly, I hereby GRANT the Government's Motion for Summary Disposition; and further RECOMMEND that the Respondent's DEA registration be REVOKED forthwith \3\ and any pending applications for renewal be DENIED. \3\ While Agency precedent has held that a stay of DEA administrative proceedings is unlikely ever to be justified by the existence of ancillary proceedings (Grider Drug #1 & Grider Drug, #2, 77 FR 44069, 44104 n.97 (2012)), the Agency recently held revocation proceedings in abeyance at the post-hearing adjudication level for a lengthy period pending the resolution of criminal fraud charges and ``pending resolution of [a state] Board proceeding.'' Odette L. Campbell, M.D., 80 FR 41062, 41064 (2015). However, inasmuch as no stay was sought by the Respondent here, and good cause does not appear to exist in any event, the Government's motion will be granted and the case forwarded for a final order. --------------------------------------------------------------------------- Dated: July 23, 2015. John J. Mulrooney II, Chief Administrative Law Judge. [FR Doc. 2015-24128 Filed 9-22-15; 8:45 am] BILLING CODE 4410-09-P
![Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices 57391
Dated: September 16, 2015. Controlled Substance Schedule to dispense controlled substances is an
Joseph T. Rannazzisi, essential condition for obtaining and
Deputy Assistant Administrator. Phenylacetone (8501) ................ II maintaining a DEA registration.’’ Id.
Methadone (9250) ...................... II (collecting cases). Because there is no
[FR Doc. 2015–24120 Filed 9–22–15; 8:45 am]
Methadone intermediate (9254) II dispute that ‘‘Respondent lacks state
BILLING CODE 4410–09–P Oripavine (9330) ......................... II authority to handle controlled
Tapentadol (9780) ...................... II
substances in’’ Kentucky, the CALJ
DEPARTMENT OF JUSTICE The company plans to manufacture granted the Government’s motion for
the listed controlled substances in bulk summary disposition and recommended
Drug Enforcement Administration for distribution and sale to its that Respondent’s registration be
customers. revoked.1 Id. at 5.
[Docket No. DEA–392]
In reference to oripavine (9330), the In his Exceptions, Respondent argues
Bulk Manufacturer of Controlled company plans to acquire the listed that Board’s Emergency Order
Substances Application: Euticals, Inc. controlled substance in bulk from a suspending his license ‘‘is not a final
domestic source in order to manufacture order as it has been appealed and is
ACTION: Notice of application. currently being reviewed by the
other controlled substances in bulk for
Kentucky Court of Appeals.’’ Exceptions
distribution to its customers.
DATES: Registered bulk manufacturers of at 1. He argues that the CALJ’s
the affected basic classes, and Dated: September 16, 2015. Recommended Decision is therefore
applicants therefore, may file written Joseph T. Rannazzisi, ‘‘based upon an order that is not final
comments on or objections to the Deputy Assistant Administrator. and consequently will constitute
issuance of the proposed registration in [FR Doc. 2015–24124 Filed 9–22–15; 8:45 am] arbitrary and capricious action.’’ Id. at 2.
accordance with 21 CFR 1301.33(a) on BILLING CODE 4410–09–P Finally, Respondent contends that
or before November 23, 2015. ‘‘[s]ummary judgment is improper
ADDRESSES: Written comments should because issues of fact exist concerning
be sent to: Drug Enforcement DEPARTMENT OF JUSTICE the enforceability of the temporary
Administration, Attention: DEA Federal suspension of [his] medical license
Register Representative/ODXL, 8701 Drug Enforcement Administration given its unconstitutionality.’’ Id.
Morrissette Drive, Springfield, Virginia [Docket No. 15–25] I reject Respondent’s contentions.
22152. Request for hearings should be Putting aside whether—in light of the
sent to: Drug Enforcement James Alvin Chaney, M.D.: Decision state Hearing Officer’s issuance of the
Administration, Attention: Hearing and Order ‘‘Final Order Affirming The Emergency
Clerk/LJ, 8701 Morrissette Drive, Order of Suspension’’—Respondent has
On July 23, 2015, Chief accurately described the procedural
Springfield, Virginia 22152. Administrative Law Judge (CALJ) John J. posture of the state licensing matter,
SUPPLEMENTARY INFORMATION: The Mulrooney, II, issued the attached based on the plain language of sections
Attorney General has delegated her Recommended Decision (cited as R.D.). 802(21) and 823(f), this Agency has held
authority under the Controlled Respondent filed Exceptions to the repeatedly that ‘‘the controlling
Substances Act to the Administrator of Recommended Decision. question’’ in a proceeding brought
the Drug Enforcement Administration In his Recommended Decision, the under 21 U.S.C. 824(a)(3) is whether the
(DEA), 28 CFR 0.100(b). Authority to CALJ found that on October 21, 2014, holder of a DEA registration ‘‘‘is
exercise all necessary functions with the Commonwealth of Kentucky, Board currently authorized to handle
respect to the promulgation and of Medical Licensure, had issued controlled substances in the [S]tate.’’’
implementation of 21 CFR part 1301, Respondent an Emergency Order of James L. Hooper, 76 FR 71371, 71371
incident to the registration of Suspension against his medical license. (2011) (quoting Anne Lazar Thorn, 62
manufacturers, distributors, dispensers, R.D. at 2. The CALJ further found that FR 12847, 12848 (1997)), pet. for rev.
importers, and exporters of controlled on November 17, 2014, the Board issued
substances (other than final orders in a final order that affirmed the 1 While the Government alleged in the Order to
connection with suspension, denial, or emergency order of suspension ‘‘and Show Cause that Respondent’s registration does not
revocation of registration) has been that the suspension order remains in expire until August 31, 2016, Show Cause Order,
redelegated to the Deputy Assistant at 1; and in his hearing request, Respondent states
effect.’’ Id. Noting that the Controlled that he ‘‘holds a medical license . . . and a DEA
Administrator of the DEA Office of Substances Act defines ‘‘term registration,’’ Hearing Request, at 1; the Agency is
Diversion Control (‘‘Deputy Assistant ‘practitioner’ [to] mean[ ] a physician still required to establish that it has jurisdiction to
Administrator’’) pursuant to section 7 of . . . licensed, registered, or otherwise act. See Sharad C. Patel, 80 FR 28693, 28694 n.3
28 CFR part 0, appendix to subpart R. (2015) (‘‘Even in summary disposition proceedings
permitted, by . . . the jurisdiction in which are based on a lack of state authority, the ALJ
In accordance with 21 CFR which he practices . . . to . . . dispense is obligated to make a finding establishing that the
1301.33(a), this is notice that on July 23, [or] administer . . . a controlled Agency has jurisdiction.’’); see also 5 U.S.C.
2015, Euticals, Inc., 2460 W. Bennett substance in the course of professional 706(2)(C) (directing reviewing courts ‘‘to hold
Street, Springfield, Missouri 65807– unlawful and set aside agency action, findings and
practice,’’ id. at 3 (quoting 21 U.S.C. conclusions found to be . . . in excess of statutory
1229 applied to be registered as a bulk 802(21), as well as that the registration jurisdiction’’). This generally requires the ALJ to
manufacturer of the following basic provision applicable to practitioners make a finding either that a respondent retains an
classes of controlled substances: active registration or has submitted an application
mstockstill on DSK4VPTVN1PROD with NOTICES
directs the Attorney General to ‘‘register
for registration.
[a] practitioner[] . . . if the applicant is In the interest of conducting an expeditious
Controlled Substance Schedule authorized to dispense . . . controlled review of this matter, I have taken official notice of
Gamma Hydroxybutyric Acid I
substances under the laws of the State Respondent’s registration record with the Agency
in which he practices,’’ id. (quoting 21 and find that his registration does not expire until
(2010). August 31, 2016. See 5 U.S.C. 556(e); 21 CFR
Amphetamine (1100) .................. II U.S.C. 823(f)), the CALJ then noted that 1316.59(e). However, in the future, where a
Lisdexamfetamine (1205) ........... II the Agency ‘‘has long held that recommended decision lacks the requisite finding,
Methylphenidate (1724) .............. II possession of authority under state law I will remand the matter for this purpose.
VerDate Sep<11>2014 18:00 Sep 22, 2015 Jkt 235001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\23SEN1.SGM 23SEN1](https://thefederalregister.org/doc/80_FR_57575/page/1.svg)
![57392 Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices
denied, Hooper v. Holder, 481 ORDER GRANTING THE danger to the health, welfare, and safety
Fed.Appx. 826 (4th Cir. 2012). Thus, it GOVERNMENT’S MOTION FOR of his patients or the general public, as
is of no consequence that the State has SUMMARY DISPOSITION AND evidenced by the Respondent’s
employed summary process in RECOMMENDED RULINGS, FINDINGS indictments for crimes related to
suspending Respondent’s state license OF FACT, CONCLUSIONS OF LAW, controlled substances. Id. at 1–2;
and that the Board’s ‘‘order remains AND DECISION OF THE Attachment 1 at 1–4. Also attached to
subject to challenge in either [further] ADMINISTRATIVE LAW JUDGE the Government’s Motion is the BML
administrative or judicial proceedings.’’ Chief Administrative Law Judge John Final Order Affirming the Emergency
Patel, 80 FR at 28694; see also Gary J. Mulrooney, II. The Deputy Assistant Order of Suspension, dated November
Alfred Shearer, 78 FR 19009, 19012 Administrator, Drug Enforcement 17, 2014. Attachment 2 at 17.
(2013); Michael G. Dolin, 65 FR at 5661, On July 23, the Respondent, through
Administration (DEA or Government),
5662 (2000). counsel, filed a reply styled ‘‘Response
issued an Order to Show Cause (OSC)
As for Respondent’s contention that to Government’s Motion for Summary
dated May 21, 2015, seeking to revoke
summary disposition is inappropriate Judgment’’ (Respondent’s Reply). In his
the DEA Certificate of Registration
‘‘because issues of fact exist concerning Reply, the Respondent alleges that his
(COR), Number BC3278492, of James
the enforceability of the temporary situation is distinguishable from Agency
Alvin Chaney, M.D. (Respondent),
suspension’’ order, the only fact that is precedent mandating revocation for lack
pursuant to 21 U.S.C. 824(a)(3) and 21
material in this proceeding is whether of state authority, Resp’t Reply at 4–5,
U.S.C. 823(f), and deny any pending
Respondent ‘‘is currently authorized to because the BML’s suspension of his
applications for renewal or modification
handle controlled substances’’ by the license was ‘‘based on the [BML’s]
of the COR, pursuant to 21 U.S.C. 823(f). application of an incorrect rule of law
State. Hooper, 76 FR at 71371; cf. Sunil
Bhasin, 72 FR 5082, 5083 (2007) In the OSC, the Government alleges that and an unconstitutional regulation.’’ Id.
(holding that a registrant cannot the Respondent is, inter alia, without at 5. In opposing the Government’s
collaterally attack the results of a state ‘‘authority to handle controlled requested relief, the Respondent also
administrative or criminal proceeding in substances in the Commonwealth of avers that inasmuch as he is not
a proceeding brought under section 304 Kentucky’’ as grounds for revocation of currently practicing medicine or
(21 U.S.C. 824(a)). Accordingly, because the Respondent’s DEA registration. On prescribing controlled substances,
the suspension order remains in effect, July 2, 2015, the Respondent, by maintenance of his DEA COR
I adopt the Recommended Decision 2 counsel, filed a Request for Hearing in constitutes no danger to the public, and
and will order that Respondent’s the above-captioned matter. The that he ‘‘should not be penalized’’ by
registration be revoked. Request for Hearing stated that a hearing the DEA because his underlying federal
is appropriate because ‘‘the review of criminal charges have not yet been
Order [the Kentucky Board of Medical resolved. Id. at 8.
Pursuant to the authority vested in me Licensure’s] illegal suspension by In order to revoke a registrant’s DEA
by 21 U.S.C. 824(a) and 28 CFR 0.100(b), emergency order of [the Respondent’s] registration, the DEA has the burden of
I order that DEA Certificate of medical license is currently on appeal proving that the requirements for
Registration BC3278492 issued to James before the Kentucky Court of Appeals revocation are satisfied. 21 CFR
Alvin Chaney, M.D., be, and it hereby is, . . .’’ and because ‘‘any action 1301.44(e) (2015). Once the DEA has
revoked. I further order that any concerning [the Respondent’s DEA made its prima facie case for revocation
application of James Alvin Chaney, COR] . . . is premature . . . .’’ Req. for of the registrant’s DEA COR, the burden
M.D., to renew or modify his Hrg. at 7. of production then shifts to the
registration be, and it hereby is, denied. Consistent with my direction, the Respondent to show that, given the
This Order is effective immediately.3 parties have briefed the issues. On July totality of the facts and circumstances in
Dated: September 15, 2015.
9, 2015, the Government filed a Motion the record, revoking the registrant’s
for Summary Disposition Based on registration would not be appropriate.
Chuck Rosenberg,
Respondent’s Lack of State Morall v. DEA, 412 F.3d 165, 174 (D.C.
Acting Administrator.
Authorization to Handle Controlled Cir. 2005); Humphreys v. DEA, 96 F.3d
Brian Bayly, Esq., for the Government. Substances and Submission of Evidence
Lisa English Hinkle, Esq., for the 658, 661 (3d Cir. 1996); Shatz v. U.S.
in Support of Such Motion (Motion for Dept. of Justice, 873 F.2d 1089, 1091
Respondent.
Summary Disposition), seeking that this (8th Cir. 1989); Thomas E. Johnston, 45
2 Notwithstanding that the language of section
tribunal issue a Recommended Decision FR 72311 (1980).
824(a) authorizes either the suspension or granting the Government’s Motion on The Controlled Substances Act (CSA)
revocation of a registration upon the making of one the ground that the Respondent is requires that, in order to maintain a
of the five findings enumerated therein, see R.D. at currently without state authority to DEA registration, a practitioner must be
4 n.1, the Agency has consistently interpreted the
CSA as mandating revocation where a practitioner’s
handle controlled substances. Mot. for authorized to handle controlled
state authority has been suspended or revoked. As Summary Disp. at 1. According to the substances in ‘‘the jurisdiction in which
the Fourth Circuit has held, ‘‘[b]ecause sections Government’s Motion, the he practices.’’ See 21 U.S.C. 802(21)
823(f) and 802(21) make clear that a practitioner’s Commonwealth of Kentucky, Board of (2012) (‘‘[t]he term ‘practitioner’ means
registration is dependent upon the practitioner
having state authority to dispense controlled
Medical Licensure (BML) suspended the a physician . . . licensed, registered, or
substances, the [Administrator’s] decision to Respondent’s license to practice otherwise permitted, by . . . the
construe section 824(a)(3) as mandating revocation medicine effective October 21, 2014, jurisdiction in which he practices . . .
upon suspension of a state license is not an
mstockstill on DSK4VPTVN1PROD with NOTICES
and that suspension order remains in to distribute, dispense, [or] administer
unreasonable interpretation of the CSA.’’ Hooper,
481 Fed.Appx. at 828. effect. Id. Attached to the Government’s . . . a controlled substance in the
3 For the same reasons that lead the Board to Motion is the BML Emergency Order of course of professional practice’’); see
order the emergency suspension of Respondent’s Suspension dated October 21, 2014 also 21 U.S.C. 823(f) (2012) (‘‘The
medical license (i.e., his indictment on various suspending the Respondent’s state Attorney General shall register
counts of the unlawful distribution of controlled
substances), I find that the public interest
license No. 28914 on the grounds that practitioners . . . if the applicant is
necessitates that this Order be effective there was probable cause to believe that authorized to dispense . . . controlled
immediately. 21 CFR 1316.67. the Respondent’s practice constituted a substances under the laws of the State
VerDate Sep<11>2014 18:00 Sep 22, 2015 Jkt 235001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\23SEN1.SGM 23SEN1](https://thefederalregister.org/doc/80_FR_57575/page/2.svg)
![Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices 57393
in which he practices.’’). DEA has long Int’l Assoc. of Bridge, Structural & forthwith 3 and any pending
held that possession of authority under Ornamental Ironworkers, AFL–CIO, 549 applications for renewal be DENIED.
state law to dispense controlled F.2d 634 (9th Cir. 1977); United States Dated: July 23, 2015.
substances is an essential condition for v. Consol. Mines & Smelting Co., 455 John J. Mulrooney II,
obtaining and maintaining a DEA F.2d 432, 453 (9th Cir. 1971). Thus, it Chief Administrative Law Judge.
registration. Serenity Café, 77 FR 35027, is well-settled that, where no genuine [FR Doc. 2015–24128 Filed 9–22–15; 8:45 am]
35028 (2012); David W. Wang, 72 FR question of fact is involved or when the BILLING CODE 4410–09–P
54297, 54298 (2007); Sheran Arden material facts are agreed upon, a
Yeates, 71 FR 39130, 39131 (2006); plenary, adversarial administrative
Dominick A. Ricci, M.D., 58 FR 51104 proceeding is not required. See Jesus R. DEPARTMENT OF JUSTICE
(1993); Bobby Watts, M.D., 53 FR 11919 Juarez, M.D., 62 FR 14945 (1997);
(1988). Because ‘‘possessing authority Dominick A. Ricci, M.D., 58 FR 51104 Drug Enforcement Administration
under state law to handle controlled (1993). Here, the supplied BML Order [Docket No. 15–23]
substances is an essential condition for establishes, and the Respondent does
holding a DEA registration,’’ this not contest, that the Respondent is Brown’s Discount Apothecary, BC,
Agency has consistently held that ‘‘the currently without authorization to Inc., and Bolling Apothecary, Inc.
CSA requires the revocation of a handle controlled substances in On May 18, 2015, the Deputy
registration issued to a practitioner who Kentucky, the jurisdiction where the Assistant Administrator, Office of
lacks [such authority].’’ Roy Chi Lung, Respondent holds the DEA COR that is Diversion Control, Drug Enforcement
M.D., 74 FR 20346, 20347 (2009); see the subject of this litigation. Administration, issued an Order to
also Scott Sandarg, D.M.D., 74 FR Summary disposition of an Show Cause to Brown’s Discount
17528, 174529 (2009); John B. Freitas, administrative case is warranted where, Apothecary, BC, Inc. (holder of DEA
D.O., 74 FR 17524, 17525 (2009); Roger as here, ‘‘there is no factual dispute of Certificate of Registration FB3717153),
A. Rodriguez, M.D., 70 FR 33206, 33207 substance.’’ See Veg-Mix, Inc., 832 F.2d of Jasper, Alabama and Bolling
(2005); Stephen J. Graham, M.D., 69 FR 601, 607 (D.C. Cir. 1987) (‘‘an agency Apothecary, Inc., (holder of DEA
11661 (2004); Abraham A. Chaplan, may ordinarily dispense with a hearing Certificate of Registration AB9375456),
M.D., 57 FR 55280 (1992); see also when no genuine dispute exists’’).2 of Fayette, Alabama. Show Cause Order,
Harrell E. Robinson, M.D., 74 FR 61370, While not unsympathetic to the at 1. The Show Cause Order proposed
61375 (2009).1 ‘‘[R]evocation is procedural issues raised by the the revocation of each pharmacy’s DEA
warranted even where a practitioner’s Respondent in his state administrative Certificate of Registration, on the ground
state authority has been summarily proceedings, under current Agency that on April 7, 2015, the Alabama State
suspended and the State has yet to precedent, the disposition of the Board of Pharmacy issued an Emergency
provide the practitioner with a hearing
Government’s motion is wholly Suspension Order suspending each
to challenge the State’s action at which
dependent upon a single issue: whether pharmacy’s Alabama Controlled
he may ultimately prevail.’’ Kamal
he continues to possess authority under Substances Permit, and that therefore,
Tiwari, M.D., 76 FR 71604, 71606,
state law to handle controlled each pharmacy is ‘‘without authority to
(2011); see also Bourne Pharmacy, Inc.,
substances—which he does not. handle controlled substances in
72 FR 18273, 18274 (2007); Anne Lazar
Thorn, M.D., 62 FR 12847 (1997). At this juncture, no genuine dispute Alabama, the [S]tate in which each is
Additionally, Agency precedent has exists over the fact that the Respondent registered with the DEA.’’ Id. at 1–2.
lacks state authority to handle On May 20, 2015, a Diversion
established that the existence of other
controlled substances in the state of Investigator from the Birmingham
proceedings in which the Respondent is
Kentucky. Because the Respondent District Office personally served the
involved is not a basis upon which to
justify a stay of DEA administrative lacks such state authority, both the plain Order to Show Cause on Bolling
enforcement proceedings. Grider Drug language of applicable federal statutory Apothecary, Inc. Notice of Service of
#1 & Grider Drug #2, 77 FR 44069, provisions and Agency interpretive Order to Show Cause, at 1. According to
44104 n.97 (2012). precedent dictate that he is not entitled the Government, on June 2, 2015, an
Congress does not intend for to maintain his DEA registration. attorney ‘‘accepted service by email of
administrative agencies to perform Simply put, there is no contested factual the Order to Show Cause on behalf of
meaningless tasks. See Philip E. Kirk, matter adducible at a hearing that would Brown’s Discount Apothecary and its
M.D., 48 FR 32887 (1983), aff’d sub provide DEA with the authority to allow owner George Bolling, Jr. Id.
nom. Kirk v. Mullen, 749 F.2d 297 (6th the Respondent to continue to hold his On June 1, 2015, George R. Bolling,
Cir. 1984); see also Puerto Rico COR. Sr., owner of Respondent Bolling
Aqueduct & Sewer Auth. v. EPA, 35 Accordingly, I hereby Apothecary, Inc., filed a request for a
F.3d 600, 605 (1st Cir. 1994); NLRB v. hearing on behalf of the pharmacy with
GRANT the Government’s Motion for the Office of Administrative Law Judges
1 But see 21 U.S.C. 824(a)(3) (2012) (‘‘A
Summary Disposition; and further
registration pursuant to section 823 of this title to RECOMMEND that the Respondent’s 3 While Agency precedent has held that a stay of
manufacture, distribute, or dispense a controlled DEA registration be REVOKED DEA administrative proceedings is unlikely ever to
substance may be suspended or revoked by the be justified by the existence of ancillary
Attorney General upon a finding that the registrant proceedings (Grider Drug #1 & Grider Drug, #2, 77
2 Even assuming, arguendo, the possibility that FR 44069, 44104 n.97 (2012)), the Agency recently
. . . has had his State license or registration
the Respondent’s state controlled substances held revocation proceedings in abeyance at the
mstockstill on DSK4VPTVN1PROD with NOTICES
suspended, revoked, or denied by competent State
authority . . . .’’) (emphasis added). Thus, privileges could be reinstated, summary disposition post-hearing adjudication level for a lengthy period
notwithstanding the Agency’s extensive body of would still be warranted because under Agency pending the resolution of criminal fraud charges
internal precedent to the contrary, the plain precedent ‘‘revocation is also appropriate when a and ‘‘pending resolution of [a state] Board
language of section 824(a)(3) provides that loss of state license has been suspended, but with the proceeding.’’ Odette L. Campbell, M.D., 80 FR
state authority constitutes a discretionary—not possibility of future reinstatement,’’ Rodriguez, 70 41062, 41064 (2015). However, inasmuch as no stay
mandatory—basis for revocation. However, FR 33207 (citations omitted), and even where there was sought by the Respondent here, and good cause
inasmuch as the Agency precedent is clear on the is a judicial challenge to the state medical board does not appear to exist in any event, the
matter, I am without authority or inclination to action actively pending in the state courts. Michael Government’s motion will be granted and the case
render a contrary interpretation. G. Dolin, M.D., 65 FR 5661, 5662 (2000). forwarded for a final order.
VerDate Sep<11>2014 18:00 Sep 22, 2015 Jkt 235001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\23SEN1.SGM 23SEN1](https://thefederalregister.org/doc/80_FR_57575/page/3.svg)
Document Created: 2015-12-15 09:45:34
Document Modified: 2015-12-15 09:45:34
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| FR Citation | 80 FR 57391 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR