82 FR 21408 - Judson J. Somerville, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 87 (May 8, 2017)

[Federal Register Volume 82, Number 87 (Monday, May 8, 2017)]
[Notices]
[Pages 21408-21410]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-09284]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 17-12]


Judson J. Somerville, M.D.; Decision and Order

    On October 20, 2016, the Assistant Administrator, Division of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Judson J. Somerville, M.D. (Respondent), of Laredo, 
Texas. The Show Cause Order proposed the revocation of Respondent's 
Certificates of Registration, on the ground that he ``do[es] not have 
authority to handle controlled substances in Texas, the [S]tate in 
which [he is] registered with the'' Agency. Show Cause Order, at 1 
(citing 21 U.S.C. 824(a)(3)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Respondent is registered as a practitioner in schedules II 
through V, pursuant to Certificate of Registration No. BS3909718, at 
the address of Saguaro Anesthesia Associates, d/b/a The Pain Clinic, 
9114 McPherson Road, Suite 2508, Laredo, Texas.\1\ Id. The Show Cause 
Order alleged that this registration expires on February 28, 2018. Id. 
The Order also alleged that Respondent is registered as a practitioner 
in schedules II though V, pursuant to Certificate of Registration No. 
FS3571660, at the address of 4646 Corona Drive, Corpus Christi, Texas. 
Id. at 2. The Show Cause Order alleged that this registration expires 
on February 28, 2019. Id.
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    \1\ In the Show Cause Order, the Government listed the number of 
this registration as BP3909718. Show Cause Order, at 1. However, on 
December 2, 2016, the Government notified the CALJ that the correct 
number was BS3909718. See Gov. Notice of Correction for the Order to 
Show Cause, at 1.
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    As to the substantive ground for the proceeding, the Show Cause 
Order alleged that on October 6, 2016, the Texas Medical Board entered 
an Order of Temporary Suspension suspending Respondent's Texas Medical 
License effective the same day, ``which `shall remain in effect until 
it is superseded by a subsequent Order of the Board,' '' and that this 
``order prohibits [him] from practicing medicine in the State of 
Texas.'' Id. The Order then alleged that ``[d]ue to the Order and under 
state law, [Respondent] lack[s] authority to handle controlled 
substances in Texas, the [S]tate in which [he is] registered'' and this 
``constitutes grounds to revoke [his] [r]egistration.'' Id. (citing 21 
U.S.C. 802(21) and 824(a)(3)) (other citations omitted).\2\
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    \2\ The Show Cause Order also notified Respondent of his right 
to request a hearing or to submit a written statement while waiving 
his right to a hearing, the procedure for electing either option, 
and the consequence of failing to elect either option. Show Cause 
Order, at 3 (citing 21 CFR 1301.43). Also, the Show Cause Order 
notified Respondent of his right to submit a Corrective Action Plan 
and the procedures for doing so. Id. (citing 21 U.S.C. 
824(c)(2)(C)).
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    Following service of the Show Cause Order, Respondent requested a 
hearing on the allegations. The matter was placed on the docket of the 
Office of Administrative Law Judges and assigned to Chief 
Administrative Law Judge John J. Mulrooney, II (hereinafter, CALJ). On 
November 22, 2016, the CALJ ordered the Government to submit evidence 
to support the allegation and any motion for summary disposition no 
later than December 7, 2016. See Order Directing the Filing of 
Government Evidence of Lack of State Authority Allegation and Briefing 
Schedule, at 1. In the order, the ALJ also directed Respondent to file 
a response to any motion for summary disposition no later than December 
21, 2016. Id.
    On December 2, 2016, the Government filed its Motion for Summary 
Disposition. Therein, it argued that it is undisputed that based on the 
Texas Medical Board's October 6, 2016 Order of Temporary Suspension, 
Respondent is prohibited from practicing medicine in the State of Texas 
and that his license remains suspended as of the date of its Motion. 
Gov. Motion, at 5. The Government further argued ``that the possession 
of authority to dispense controlled substances under the laws of the 
State in which a practitioner engaged in professional practice is a 
fundamental condition for both obtaining and maintaining a 
practitioner's registration,'' and that under the Agency's precedents, 
revocation is warranted even where a State has invoked summary process 
to suspend a practitioner's state authority and has yet to provide the 
practitioner with a hearing where he may prevail. Mot. for Summ. Disp., 
at 3-7 (citations omitted). As support for its motion, the Government 
attached a copy of the Medical Board's Order of Temporary Suspension 
and a printout from the Medical Board's Web site showing that his 
license status was ``SUSPENDED, ACTIVE.'' Id. at GXs C & D.
    Respondent did not dispute that his medical license has been 
suspended by the Texas Board. Resp.'s Reply to Gov. Mot. for Summ. 
Disp., at 1. Instead, he argued that the Board's Order cannot ``serve 
as a predicate for summary disposition'' because the Order is not a 
``permanent action[] of the Board'' and is ``not valid until and unless 
the matters in the . . . order[] are brought before a panel of the 
Medical Board for an `Informal Settlement Conference' and if not 
resolved at the . . . conference, [a] formal adjudication[] . . . which 
must be initiated as soon as possible.'' Id. at 1-2. Respondent argued 
that the Medical Board has acted in violation of Texas law by exempting 
itself from the requirement that it initiate proceedings within 30 days 
from the date of the issuance of a summary suspension order. Id. at 2-
3. He further argued that subsequent to the issuance of the Board's 
Order, there has been no settlement conference and the Board did not 
commence formal administrative proceedings either within the 30 day 
period or `` `as soon as practicable' as mandated by Texas'' law. Id. 
at 4. Respondent thus maintains that the Government's Motion is based 
on the illegal actions of the Board. Id. Respondent requested that the 
CALJ deny the Government's Motion and ``hold in abeyance any decision 
on the Government's application until the proper exhaustion of 
administrative and judicial channels takes place in Texas.'' Id. at 5.
    The CALJ rejected Respondent's contentions, noting that ``the 
Controlled Substances Act (CSA) requires that, in order to obtain or 
maintain a DEA registration, a practitioner must be authorized to 
handle controlled substances in the State in which he practices.'' R.D. 
at 3-4 (citing 21 U.S.C. 823(f) and 802(21) (quotations omitted)). 
While he was ``not unmindful of Respondent's arguments regarding the 
legality of the Board's actions,'' the CALJ explained that ``it is not 
within this tribunal's authority to evaluate the lawfulness of the 
basis of a registrant's lack of state authority, and the validity of 
other entities' actions is not what is at issue in these proceedings.'' 
Id. at 4. The CALJ then explained that the ``disposition of the 
Government's Motion is wholly dependent upon the

[[Page 21409]]

single issue of whether or not the Respondent currently possesses the 
requisite authority under state law to handle controlled substances-
which he does not.'' Id. The CALJ further denied Respondent's request 
to hold the proceeding in abeyance pending the exhaustion of his state 
remedies.\3\ Id. at 4.
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    \3\ The CALJ noted that the Agency has previously held ``that a 
stay in administrative enforcement proceedings is `unlikely to ever 
be justified' due to ancillary proceedings involving the 
Respondent.'' R.D. 5 (quoting Grider Drug #1 & Grider Drug #2, 77 FR 
44070, 44104 n.97 (2012)). I agree with this statement of the 
Agency's precedents. However, the CALJ also cited Odette L. 
Campbell, 80 FR 41062 (2015), as contrary authority. See id. The 
CALJ characterized Campbell as ``holding revocation proceedings in 
abeyance at the post-hearing adjudication level for a lengthy period 
pending the resolution of both criminal fraud charges and concurrent 
state administrative proceedings against the respondent.'' Id. I 
respectfully disagree with the CALJ's reading of Campbell. In 
Campbell, the respondent failed to comply with the Agency's 
regulation which, because she was subject to an Order to Show Cause, 
required her to file her renewal application at least 45 days before 
the expiration of her registration. 80 FR 41063. Of note, the 
respondent's registration expired one week after the evidentiary 
hearing, and she did not file a renewal application until three 
months later, after she received a largely favorable decision from 
the ALJ. Id. Thus, at the time the proceeding was held in abeyance, 
the proceeding did not involve a revocation as the respondent no 
longer held a registration. See 21 CFR 1301.36(i).
     Most significantly, one week before the evidentiary hearing, 
the respondent was indicted on 30 counts of Health Care Fraud, as 
well as five counts of altering records during a federal 
investigation. 80 FR at 41063. Had the respondent been convicted of 
Health Care Fraud, she would have been subject to mandatory 
exclusion from federal healthcare programs under 42 U.S.C. 1320a-
7(a) and her application would have been subject to denial on that 
basis. Id. at 41064 (citing 21 U.S.C. 824(a)(5)). Moreover, even 
after the respondent successfully completed pre-trial diversion and 
the charges were dismissed, the state medical board brought a 
proceeding against her license, and had the board suspended or 
revoked her medical license, denial of her application would have 
been required under the CSA. Id. (citing 21 U.S.C. 802(21) & 
823(f)). Given the pending proceedings, Campbell was the rare case 
where withholding the issuance of a final decision was warranted.
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    The CALJ then found that there was no dispute over the material 
fact that ``Respondent currently lacks state authority to handle 
controlled substances in Texas due to the Board['s] Order dated October 
6, 2016, which temporarily suspended his state license to practice 
medicine.'' Id. at 6. Reasoning that ``[b]ecause . . . Respondent lacks 
state authority at the present time . . . he is not entitled to 
maintain his . . . registrations,'' the CALJ granted the Government's 
motion and recommended that his registrations be revoked and that any 
pending applications be denied. Id.
    Neither party filed exceptions to the CALJ's Recommended Decision. 
Thereafter, the record was forwarded to my Office for Final Agency 
Action. Having reviewed the record, I adopt the CALJ's finding that by 
virtue of the Texas Board's Order, Respondent is currently without 
authority to handled controlled substances in Texas, the State in which 
he holds his registrations with the Agency, and is thus, not entitled 
to maintain his registrations. I further adopt the CALJ's 
recommendation that I revoke his registrations and deny his pending 
applications. I make the following factual findings.

Findings of Fact

    Respondent is a physician who holds Texas Medical License No. H-
6622. GX C, at 1. However, on October 6, 2016, the Disciplinary Panel 
of the Texas Medical Board issued an Order of Temporary Suspension to 
Respondent based on its finding that ``Respondent's continuation in the 
practice of medicine would constitute a continuing threat to the public 
welfare.'' Id. at 5. The Panel further ordered that the suspension be 
``effective on the date rendered'' and ``shall remain in effect until 
it is superseded by a subsequent Order of the Board.'' Id. Respondent 
offered no evidence in its Opposition to the Government's Motion or at 
any time thereafter showing that the Board has lifted the suspension. 
Based on the above, I find that Respondent does not currently have 
authority under the laws of Texas to dispense controlled substances.
    Respondent is also the holder of two DEA Certificates of 
Registration, pursuant to which he was authorized to dispense 
controlled substances in schedules II through V as a practitioner. 
Pursuant to Registration No. BS3909718, Respondent was authorized to 
dispense controlled substances at the address of Saguaro Anesthesia 
Associates, d/b/a The Pain Management Clinic, 9114 McPherson Road, 
Suite 2508, Laredo, Texas. GX A. This registration does not expire 
until February 28, 2018. Id. Pursuant to Registration No. FS3571660, 
Respondent was authorized to dispense controlled substances at the 
address of 4646 Corona Drive, Suite 256, Corpus Christi, Texas. GX B. 
According to the declaration of a Diversion Investigator, this 
registration does not expire until February 28, 2019. GX F, at 2.

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.'' Also, 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); see also Frederick Marsh Blanton, 43 FR 27616 (1978) (``State 
authorization to dispense or otherwise handle controlled substances is 
a prerequisite to the issuance and maintenance of a Federal controlled 
substances registration.'').
    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).
    Moreover, because ``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,'' Hooper, 76 FR at 71371 (quoting Anne Lazar Thorn, 62 
FR 12847, 12848 (1997)), the Agency has also long held that revocation 
is warranted even where a practitioner has lost his state authority by 
virtue of the State's use of summary process and the State has yet to 
provide a hearing to challenge the suspension. Bourne Pharmacy, 72 FR 
18273, 18274 (2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, 
it is of no consequence that the Texas Medical Board has employed 
summary process in suspending Registrant's state license and that 
Respondent may prevail at the hearing schedule for late June.
    Respondent further argues that the Board's order cannot be the 
basis for revoking his registration because the Board has acted in 
violation of Texas law when it neither provided Respondent with an 
informal settlement conference nor commenced formal administrative 
proceedings within the time frame required by Texas law. DEA,

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however, ``accepts as valid and lawful the actions of a state 
regulatory board unless that action is overturned by a state court . . 
. pursuant to state law.'' Kamal Tiwari, 76 FR 71604, 71607 (2011) 
(quoting George S. Heath, 51 FR 26610 (1986)). Rather, Respondent's 
challenge to the lawfulness of the Texas Board's Suspension Order must 
be raised in the forums provided by the State. Id. (quoting 51 FR at 
26610). See also Calvin Ramsey, 76 FR 20034, 20036 (2011) (quoting 
Hicham K. Riba, 73 FR 75773, 75774 (2008) (``DEA has repeatedly held 
that a registrant cannot collaterally attack the results of a state 
criminal or administrative proceeding in a proceeding brought under 
section 304 [21 U.S.C. 824] of the CSA.'')).
    Here, there is no dispute over the material fact that Respondent is 
no longer currently authorized to dispense controlled substances in 
Texas, the State in which he is registered. Accordingly, he is not 
entitled to maintain his registrations. I will therefore adopt the 
CALJ's recommendation that I revoke Respondent's registrations and deny 
any pending applications to renew his registrations. R.D. 6.

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 Certificates of Registration Nos. 
BS3909718 and FS3571660 be, and they hereby are, revoked. Pursuant to 
the authority vested in me by 21 U.S.C. 823(f), I order that any 
applications to renew the above registrations be, and they hereby are, 
denied. This Order is effective immediately.\4\
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    \4\ For the same reasons which led the Texas Board to order the 
temporary suspension of Respondent's medical license, I conclude 
that the public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: May 1, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-09284 Filed 5-5-17; 8:45 am]
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