82 FR 18777 - William H. Wyttenbach, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 76 (April 21, 2017)

[Federal Register Volume 82, Number 76 (Friday, April 21, 2017)]
[Notices]
[Pages 18777-18779]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-08013]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 17-8]


William H. Wyttenbach, M.D.; Decision and Order

    On October 4, 2016, the Assistant Administrator, Diversion Control 
Division, issued an Order to Show Cause to William H. Wyttenbach, M.D. 
(Respondent), of Fort Myers, Florida. The Show Cause Order proposed the 
revocation of Respondent's DEA Certificate of Registration No. 
BW1311997, on the ground that he ``do[es] not have authority to handle 
controlled substances in the State of Florida, the [S]tate in which [he 
is] registered with the'' Agency. Show Cause Order, at 1 (citing 21 
U.S.C. 823(f), 824(a)(3)).
    As to the jurisdictional basis for the proceeding, the Show Cause 
Order alleged that Respondent is registered ``as a practitioner in 
[s]chedules II-V,'' pursuant to the above registration number, at the 
registered address of 16329 South Tamiami Trail, Units 5&6, Fort Myers, 
Florida. Id. The Order further alleged that Respondent's registration 
``expires by its terms on May 31, 2018.'' Id.
    As to the substantive basis for the proceeding, the Show Cause 
Order alleged that effective June 15, 2016, the Florida Board of 
Medicine ``suspended [his] authority to practice medicine,'' and that 
he is ``without authority to handle controlled substances in Florida, 
the [S]tate in which [he is] registered with'' DEA. Id. The Order thus 
alleged that Respondent's registration is subject to revocation.\1\ Id. 
(citing 21 U.S.C. 802(21), 823(f), 824(a)(3)).
---------------------------------------------------------------------------

    \1\ The Show Cause Order also notified Respondent of his right 
to submit a corrective action plan and the procedure for doing so. 
Show Cause Order, at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
---------------------------------------------------------------------------

    On November 3, 2016, Respondent submitted a request for a hearing. 
The matter was placed on the docket of the Office of Administrative Law 
Judges and assigned to ALJ Charles Wm. Dorman. Thereafter, the ALJ 
issued an order which directed the Government to submit its evidence in 
support of the allegation and any motion for summary disposition on 
this ground by 2 p.m. on November 28, 2016. See Briefing Schedule for 
Lack of State Authority Allegations, at 1. The ALJ also ordered that if 
the Government filed such motion, Respondent's reply was due by 2 p.m. 
on December 12, 2016. Id.
    On November 8, 2016, the Government filed its Motion for Summary 
Disposition, which asserted that ``on June 15, 2016, the State of 
Florida Board of Medicine suspended Respondent's state medical 
license.'' Mot. at 2. As support for its Motion, the Government 
attached a June 15, 2015 Final Order issued by the Florida Board of 
Medicine which suspended Respondent's Florida medical license ``until 
such time as he personally appears before the Board and demonstrates 
that his license to practice medicine in all jurisdictions is free from 
all encumbrances.'' Appendix C, at 4. The Government also attached an 
affidavit by a DEA Diversion Investigator attesting to the authenticity 
of the Florida Board's Final Order, see Appendix B, as well as a copy 
of Respondent's DEA registration. See Appendix A.
    Based on this evidence, the Government argued that Respondent is 
without authority to handle controlled substances in Florida and 
therefore, he does not meet the statutory definition of a practitioner. 
Motion, at 3-4 (citing 21 U.S.C. 802(21)). Invoking cases holding that 
revocation is warranted even when a registrant's state authority has 
been summarily suspended, the Government maintained that because 
possessing authority to dispense controlled substances under the laws 
of the state in which a practitioner engages in professional practice 
is a fundamental condition for maintaining a DEA registration and 
Respondent does not possess such authority, revocation of his 
registration is warranted. Id. at 4 (citing Gary Alfred Shearer, 78 FR 
19,009, 19012 (2013) (other citation omitted)).
    On December 5, 2016, Respondent filed his Response to the 
Government's Motion. Therein, Respondent stated that he ``agrees[ ] he 
has no authority to practice medicine in Florida and has not done so 
since June 4, 2015 and ongoing.'' Response, at 1. Respondent asserted, 
however, that he does have an active and unrestricted medical license 
in Wyoming. Id. He further asserted that the suspension of his Florida 
license was illegal, that the Florida Board had violated his Due 
Process rights, and that he is suing the Florida Board as well as the 
medical boards of Tennessee, Colorado, Kentucky, and Washington, and a 
DEA Agent for civil rights violations in federal district court in Fort 
Myers, Florida. Id. at 2. He also asserted that this proceeding 
violates his ``constitutional right of due process to appeal a non 
final order'' and that ``no alleged final order exists until ALL final 
appeals are exhausted.'' Id. at 2-3.
    On review, the ALJ noted that under the CSA, ``a practitioner must 
be currently authorized to handle controlled substances in the 
jurisdiction in which [he] is registered'' in order to maintain his 
registration. R.D. at 3 (citing 21 U.S.C. 802(21), 823(f)). The ALJ 
also noted that under agency precedent, revocation is warranted ``where 
the practitioner lacks state authority, even if the practitioner has 
not had the opportunity to contest the charges'' brought by the state 
board, ``or if there is a possibility that the Respondent's state 
license will be reinstated in the future.'' Id. (citing Richard H. Ng., 
77 FR 29694, 29695 (2012); other citations omitted). Finding that there 
was no dispute over the material fact that ``Respondent lacks state 
authorization to handle controlled substances in Florida, where [he] is 
registered,'' the ALJ concluded that Respondent is not entitled to 
maintain his registration and granted the Government's motion, with the 
recommendation that I revoke his registration. Id. at 4.
    On January 12, 2017, after the expiration of the time period for 
filing exceptions, the ALJ forwarded the record to my Office for final 
agency action. More than two months later, Respondent submitted a 
pleading titled as: ``Motion To Reconsider And/Or Motion for Telephonic 
Hearing, And/Or Motion To Dismiss Administrative Revocation.''
    I decline to consider Respondents' motions. To the extent 
Respondent seeks reconsideration, his motion is not ripe,\2\ and even 
if it were ripe, it would fail. First, his motion presents no newly 
discovered evidence. See ICC v. Brotherhood of Locomotive Engineers, 
482 U.S. 270, 278 (1987). Second, he does not point to any ``changed 
circumstance'' that would render my adoption of the ALJ's factual 
findings, legal conclusions and recommended order inappropriate. Id. As 
for all three motions, they simply raise legal arguments which could 
have, and should have, been raised in a brief of exceptions to the 
ALJ's recommended decision. Respondent did not, however,

[[Page 18778]]

file a brief of exceptions. Accordingly, I adopt the ALJ's factual 
findings, legal conclusions and recommended order. I make the following 
factual findings.
---------------------------------------------------------------------------

    \2\ The ALJ's recommended decision is not a final order of the 
Agency, and thus a motion for reconsideration is not ripe until the 
Agency issues its Decision and Order.
---------------------------------------------------------------------------

Findings

    Respondent is the holder of DEA Certificate of Registration No. 
BW1311997, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V, as a practitioner, at the 
registered location of Southwest Florida Medical, 16329 S. Tamiami 
Trail, Units 5 & 6, Fort Myers, Florida. Mot. for Summ. Disp., at 
Appendix A. This registration does not expire until May 31, 2018. Id.
    Respondent is also the holder of physician's license number ME 
46329, issued by the Florida Board of Medicine. Id. at Appendix C, at 3 
(Final Order adopting factual allegations of Administrative Complaint); 
id. at 8 (Complaint allegation that ``[a]t all times material to this 
Complaint, Respondent was a licensed physician within the State of 
Florida, having been issued license number ME 46329.''). However, on 
June 15, 2015, the Florida Board of Medicine issued a Final Order 
suspending ``Respondent's license to practice medicine in the State of 
Florida . . . until such time as he personally appears before the Board 
and demonstrates that his license to practice medicine in all 
jurisdictions is free from all encumbrances.'' Id. at 4. According to 
the Florida Department of Health's Web site, of which I take official 
notice, Respondent's medical license remains suspended as of the date 
of this Decision and Order.\3\
---------------------------------------------------------------------------

    \3\ Respondent may dispute this finding by filing a properly 
supported motion for reconsideration within 10 business days of the 
date this Order is mailed. See 5 U.S.C. 556(e).
---------------------------------------------------------------------------

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (CSA), ``upon a finding that the registrant . 
. . has had his State license . . . suspended [or] revoked . . . by 
competent State authority and is no longer authorized by State law to 
engage in the . . . dispensing of controlled substances.'' Moreover, 
DEA has long held 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 fundamental 
condition for obtaining and maintaining a practitioner's registration. 
See, e.g., James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied, 
481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, 43 FR 
27616 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined ``the term `practitioner' [to] mean[ ] a . . . 
physician . . . or other person 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.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he 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. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the Act, DEA has held repeatedly that revocation of 
a practitioner's registration is the appropriate sanction whenever he 
is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices medicine. See, e.g., Hooper, 76 
FR at 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 
11920 (1988); Blanton, 43 FR at 27616.
    In his Opposition, Respondent raised three main arguments. First, 
while he acknowledged that his Florida license has been suspended, he 
maintained that he has an active and unrestricted medical license in 
Wyoming. This, however, is beside the point because he is registered in 
Florida and not Wyoming, and his ability to hold a registration in 
Florida is conditioned on his possessing authority under Florida law to 
dispense controlled substances. See 21 U.S.C. 802(21), 823(f); see also 
United States v. Moore, 423 U.S. 122, 140-41 (1975) (``Registration of 
physicians and other practitioners is mandatory if the applicant is 
authorized to dispense drugs . . . under the law of the State in which 
he practices. [21 U.S.C.] Sec.  823(f). In the case of a physician, 
this scheme contemplates that he is authorized by the State to practice 
medicine and to dispense drugs in connection with his professional 
practice.''); Blanton, 43 FR at 27617 (``State authorization to 
dispense or otherwise handle controlled substances is a prerequisite to 
the issuance and maintenance of a Federal controlled substances 
registration.'').
    Second, Respondent argues that the suspension of his Florida 
license was illegal and that he is suing the Florida Board for 
violating his right to Due Process. DEA, however, has no authority to 
adjudicate the validity of the decisions of state boards, which are 
deemed to be presumptively lawful for the purposes of the Controlled 
Substances Act. See Kamal Tiwari, et al., 76 FR 71604, 71607 (2011) 
(quoting George S. Heath, 51 FR 26610 (1986) (``DEA accepts as valid 
and lawful the action of a state regulatory board unless that action is 
overturned by a state court or otherwise pursuant to state law.'')). 
Rather, Respondent is required to litigate his claims challenging the 
validity of the suspension in the administrative and judicial fora 
provided by the State of Florida. See Tiwari, 76 FR at 71607 (quoting 
Heath, 51 FR at 26610); Zhiwei Lin, 77 FR 18862, 18864 (2012); Sunil 
Bhasin, 72 FR 5082, 5083 (2007).
    Finally, Respondent maintains that this proceeding violates his due 
process right to appeal a non-final order and that no alleged final 
order exists until he exhausts his appeals. Putting aside that the 
Board characterized its Order suspending his state license as a ``Final 
Order,'' Respondent offers no support for his theory that the Agency's 
action violates whatever right he has at this point under Florida law 
to challenge the Board's Final Order. See Appendix C, at 5 (Board 
Order's notice to Respondent that under Florida law, he had 30 days to 
file a notice of appeal of the Board's Order). Indeed, nothing the 
Agency does in this proceeding, which involves the revocation of his 
DEA registration, effects his ability to seek judicial review of the 
Board's Final Order. While Respondent further argues that the Board's 
Order is not a Final Order (notwithstanding the Board's 
characterization that it is) until he exhaust his appeals, he cites 
neither a provision of the Florida statutes nor any decision of the 
Florida courts to support his contention.\4\
---------------------------------------------------------------------------

    \4\ Even if the Board Order's was not final, Respondent's 
registration would still be subject to revocation based on his lack 
of state authority. Indeed, DEA has long exercised authority to 
revoke a registration even where a State Board resorts to summary 
process to suspend a practitioner's prescribing authority, because 
notwithstanding that the practitioner may eventually prevail at 
hearing before the Board, the practitioner ``is no longer authorized 
by State law to engage in the . . . dispensing of controlled 
substances.'' 21 U.S.C. 824(a)(3); Heath, 51 FR at 26610. This 
interpretation of the Agency's authority has been sustained on 
judicial review. See Maynard v. DEA, 117 Fed. Appx. 941, 944 (5th 
Cir. 2004) (rejecting argument that DEA exceeded its authority 
revoking a practitioner's registration because his state license was 
``merely temporarily suspended'' and recognizing that ``DEA need not 
inquire into the validity of a state licensing agency's decisions 
under section 824(a)(3)''). Of note, the Board's Order makes clear 
that Respondent was given a hearing before the Board suspended his 
license. Appendix C, at 3.

---------------------------------------------------------------------------

[[Page 18779]]

    Because it is undisputed that based on the Florida Board's Final 
Order, Respondent's state license has been suspended and he ``is no 
longer authorized by State law to engage in the . . . dispensing of 
controlled substances'' in Florida, the State in which he is registered 
with the Agency, he is not entitled to maintain his registration. 21 
U.S.C. 824(a)(3); see also id. section 802(21), Blanton, 43 FR at 
27616. I will therefore order that his registration be revoked and that 
any pending application to renew or modify his registration be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) and 
28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
BW1311997 issued to William H. Wyttenbach, M.D., be, and it hereby is, 
revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
28 CFR 0.100(b), I further order that any application of William H. 
Wyttenbach, M.D., to renew or modify the above registration, be, and it 
hereby is, denied. This Order is effective May 22, 2017.

    Dated: April 14, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-08013 Filed 4-20-17; 8:45 am]
 BILLING CODE 4410-09-P