82 FR 39614 - Arnold E. Feldman, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 160 (August 21, 2017)

[Federal Register Volume 82, Number 160 (Monday, August 21, 2017)]
[Notices]
[Pages 39614-39618]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-17640]


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

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 17-17]


Arnold E. Feldman, M.D.; Decision and Order

    On January 24, 2017, the Assistant Administrator, Diversion Control 
Division, issued an Order to Show Cause to Arnold E. Feldman, M.D. 
(Respondent), of Baton Rouge, Louisiana. The Show Cause Order proposed 
the revocation of Respondent's DEA Certificate of Registration No. 
BF4179203, and the denial of his application for a registration, on the 
ground that he ``do[es] not have authority to handle controlled 
substances in the State of Louisiana, the [S]tate in which [he is] 
registered . . . and [is] applying'' for registration. Show Cause 
Order, at 1.
    As to the jurisdictional basis for the proceeding, the Show Cause 
Order alleged that Respondent is ``registered . . . as a data-waived/
100 practitioner in [s]chedules II-V pursuant to [Registration No.] 
BF4179203 with a registered address at 505 East Airport [Blvd.], Baton 
Rouge, Louisiana,'' and that this registration does not expire until 
``September 30, 2018.'' Id. The Order also alleged that ``[o]n July 31, 
2013, [Respondent] applied for a separate . . . [r]egistration as a 
practitioner in [s]chedules II-V with a registered address of 505 East 
Airport [Blvd.], Baton Rouge, Louisiana.'' Id.
    As to the substantive ground for the proceeding, the Show Cause 
Order alleged that Respondent's ``[a]uthority to prescribe and 
administer controlled substances in the State of Louisiana was 
suspended effective October 19, 2016.'' Id. at 2. The Order then 
asserted that as a consequence of Respondent's ``lack of authority to 
handle controlled substances in the State of Louisiana,'' Respondent's 
registration is subject to revocation and his application must be 
denied. Id.
    The Show Cause Order notified Respondent of his right to request a 
hearing on the allegation or to submit a written statement while 
waiving his right to a hearing and the procedure for electing either 
option. Id. (citing 21 CFR 1301.43). In addition, the Order notified 
Respondent of his right to submit a corrective action plan pursuant to 
21 U.S.C. 824(c)(2)(C). Id. at 2-3.
    On February 23, 2017, Respondent requested a hearing on the 
allegation. Letter from Respondent to Hearing Clerk, Office of 
Administrative Law Judges (Feb. 23, 2017). The same day, the matter was 
assigned to Administrative Law Judge Charles Wm. Dorman (hereinafter, 
ALJ), who issued an order (also on Feb. 23) directing the Government to 
file evidence supporting the allegation by March 10, 2017 at 2 p.m., as 
well any motion for summary disposition. Briefing Schedule For Lack Of 
State Authority Allegations, at 1. The ALJ's order also provided that 
if the Government moved for summary disposition, Respondent's 
opposition was due by March 24, 2017 at 2 p.m. Id.
    The next day, Respondent emailed the ALJ's law clerk seeking a 
continuance in order to engage counsel. Email from Respondent to ALJ's 
law clerk (Feb. 24, 2017). Respondent explained that he was seeking the 
continuance because ``I have court cases pending in multiple 
jurisdictions including a Mar 16 hearing, a Mar 20 hearing in 
Mississippi and appeals in Louisiana and Mississippi and California.'' 
Id. Respondent subsequently sought `` `a continuance of at least 120 
days' due to constant court appearances in Louisiana, Mississippi, and 
California.'' Order Denying The Respondent's Request For Continuance, 
at 1 (Feb. 27, 2017). Noting that his Briefing Schedule order 
``provided the Respondent [with] a date to respond, if the government 
files such a motion,'' the ALJ reasoned that ``[b]ecause the government 
ha[d] not filed a motion for summary disposition . . . Respondent's 
request . . . is premature.'' Id.
    On March 2, 2017, the Government filed its Motion for Summary 
Disposition. As support for its motion, the Government provided: (1) A 
copy of Respondent's registration; (2) his July 30, 2013 application 
for registration as a hospital/clinic; (3) the Decision and Order of 
the Louisiana State Board of Medical Examiners (Aug. 15, 2016) which 
ordered the suspension of his medical license for a period of two years 
to begin 30 days from the date of the Order, and a subsequent Order of 
the Board (Sept. 13, 2016), which extended the commencement of the 
suspension until October 14, 2016; (4) a copy of a judgment issued by 
the Civil District Court for the Parish of Orleans which stayed the 
Board's Order from October 14, 2016 through October 19, 2016 and 
further ordered the Board to ``show cause'' as to ``why the stay should 
not continue''; and (5) a Declaration of a Diversion Investigator as to 
various matters, including that the Board's Order had gone into effect 
on October 19, 2016. Mot. for Summ. Disp., at Appendix A-E.
    On March 10, 2017, counsel for Respondent entered a notice of 
appearance. On March 23, 2017, Respondent filed his Reply to the 
Government's Motion.
    Therein, ``Respondent acknowledge[d] that his license to practice 
medicine in . . . Louisiana has been suspended in accordance with the . 
. . Board of Medical Examiners' Order.'' Resp. Reply, at 1. Respondent 
contended, however, ``that there are material questions of fact and law 
that require resolution in a plenary, evidentiary proceeding.''
    According to Respondent, these issues were that he possesses ``an 
active and unrestricted'' license to practice medicine in Alabama and 
``a full and unrestricted Alabama Controlled

[[Page 39615]]

Substance Certificate.'' Id. at 2. Respondent argued that ``none of the 
cases cited by the Government'' address the situation ``where a 
physician has lost authority to practice in one state, while retaining 
unrestricted authority in another.'' Id. at 3. He also argued that the 
Agency's longstanding rule that a practitioner must possess authority 
under the laws of the State in which he engages in professional 
practice ``is based on the indiscriminate intermingling of'' 21 U.S.C. 
823 and 824, ``each of which deals with different aspects of the 
control and enforcement authority to dispense controlled substances.'' 
Id. at 3. He further contended that while section 823 mandates that the 
Attorney General register the applicant if he ``is authorized to 
dispense controlled substances under the laws of the State in which he 
practices,'' ``[t]he term `practitioner' does not appear in'' section 
824 and the latter provision ``does not speak to a physician's 
authorization to practice or dispense under the laws of the state in 
which the registrant practices.'' Id. at 4.
    In Respondent's view, section 824 authorizes revocation ``only if 
the registrant is no longer authorized by State law to engage in the 
dispensing of controlled substances . . . under state law.'' Id. at 4-
5. He also maintained that ``[t]he fact that Congress employed the term 
`practitioner' in'' section 823(f) but not in section 824 ``is a clear 
indication that it did not intend to authorize revocation or suspension 
of a [registration] where a registrant has continued to maintain 
authority to practice and dispense under the laws of any state.'' Id.; 
see also id. at 5 & n.16 (``Where Congress includes particular language 
in one section of a statute but omits it in another . . . it is 
generally presumed that Congress acts intentionally and purposely in 
the disparate inclusion or exclusion.'') (quoting Keene Corp. v United 
States, 508 U.S. 200, 208 (1993) (other citation omitted)).
    Finally, Respondent contended that ``[t]he Government's 
indiscriminate intermingling of [sections 823 and 824], and its 
misinterpretation of 21 U.S.C. 824(a)(3) amount to a violation of [his] 
constitutional right to travel.'' Id. at 6. He explained that 
``[t]heoretically, [he] should be able to pack up and remove himself 
and his practice from Louisiana to . . . Alabama, where he is 
authorized to practice medicine and dispense controlled substances. 
But[] his constitutional right to do so is impaired by the Government's 
misinterpretation of its authority to revoke'' his registration. Id.
    On April 3, 2017, the ALJ granted the Government's Motion. The ALJ 
found that ``Respondent conceded in his Reply that his Louisiana 
medical license is currently suspended'' and that ``it is undisputed 
that . . . Respondent lacks state authorization to handle controlled 
substances in Louisiana, where [he is] registered, and where [he] has 
applied for an additional'' registration. R.D. 6. Because Respondent is 
registered in Louisiana, the ALJ found it irrelevant that Respondent 
holds a license to practice medicine in Alabama. Id. at 4. The ALJ 
noted that ``both the CSA's `definition of the term ``practitioner'' 
and the registration provision applicable to practitioners make clear 
that a practitioner must be currently authorized to dispense controlled 
substances by the State in which he practices in order to obtain and 
maintain a registration,' '' and that Agency's interpretation has been 
upheld by the Fourth Circuit. Id. (quoting Rezik A. Saqer, 81 FR 22122, 
22125 (2016) and citing Hooper v. Holder, 481 Fed. App'x 826 (4th Cir. 
2012)). The ALJ further reasoned that ``Respondent's analysis is 
counter to the way the DEA has interpreted the CSA for nearly forty 
years.'' Id. at 5 (citing Saqer, 81 FR at 22126 (citing Frederick Marsh 
Blanton, 43 FR 27616 (1978))).
    The ALJ also rejected Respondent's contention that the Agency's 
interpretation impairs his constitutional right to travel. Id. at 5-6. 
The ALJ noted that under DEA regulations, `` `[a] separate registration 
is required for each principal place of business.' '' Id. at 5 (quoting 
21 CFR 1301.12(a)). The ALJ also noted that in 2006, the Agency issued 
a final rule which ``clarif[ied] that a practitioner must obtain a 
separate DEA registration for each state in which he or she practices'' 
and that `` `[j]ust as a license to practice medicine in one State does 
not authorize a practitioner to practice in any other State, a DEA 
registration based on a particular State's license cannot authorize 
dispensing controlled substances in another State.' '' Id. at 6 
(quoting Clarification of Registration Requirements for Individual 
Practitioners, 71 FR 69478, 69479 (2006) and citing Joe W. Morgan, 78 
FR 61961, 61965 n.13 (2013)). The ALJ thus explained that ``Respondent 
is able to pack up and remove himself and his practice from Louisiana 
to Alabama--he just cannot dispense or prescribe controlled substances 
there unless he first obtains a separate DEA registration for his 
Alabama location in accordance with 21 CFR 1301.12(a).'' Id. The ALJ 
thus recommended that I revoke Respondent's registration and deny any 
pending applications. Id. at 7.
    Respondent filed Exceptions to the ALJ's Recommended Decision. On 
May 1, 2017, the ALJ forwarded the record to me for Final Agency 
Action.
    Having considered the record and Respondent's Exceptions, I reject 
Respondent's various contentions and adopt the ALJ's Recommended 
Decision. I will therefore also adopt the ALJ's recommendation that I 
revoke Respondent's registration and deny his application. I make the 
following findings.

Findings of Fact

    Respondent is the holder of DEA Certificate of Registration No. 
BF4179203, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered address of: ``The Pain Treatment CTR of B.R.,'' 505 E. 
Airport Blvd., Baton Rouge, Louisiana. Mot. for Summ. Disp., Appendix 
A. Under this registration, Respondent also holds an identification 
number (XF4179203), id., pursuant to which he is authorized to dispense 
or prescribe schedule III through V ``narcotic controlled substances 
which have been approved by the Food and Drug Administration . . . 
specifically for use in maintenance or detoxification treatment'' to up 
to 100 patients. 21 CFR 1301.28(a). Respondent's registration (and 
identification number) do not expire until September 30, 2018. Mot. for 
Summ. Disp., Appendix A.
    On July 30, 2013, Respondent submitted an application to register 
an entity known as ``First Choice Surgery Center of BA'' as a Hospital/
Clinic, at the same address as above. Id. Appendix B. This application 
remains pending before the Agency.
    Respondent also holds a medical license issued by the Louisiana 
State Board of Medical Examiners. However, on August 15, 2016, the 
Board suspended his medical license for a period of two years; this 
Order became effective on or about October 19, 2016.\1\ See Mot. for 
Summ. Disp., Appendices B & E; Resp.'s reply, at 1. Accordingly, I find 
that Respondent

[[Page 39616]]

currently lacks authority to dispense controlled substances under the 
laws of the State of Louisiana.
---------------------------------------------------------------------------

    \1\ While ``[t]he suspension was to commence after [30] days,'' 
the Board, following flooding in the Baton Rouge area, extended the 
effective date of the suspension until October 14, 2016. Mot., 
Appendix C, at 1. On October 12, 2016, the Civil District Court for 
the Parish of Orleans stayed enforcement of the Board's Order 
through October 19, 2016, and directed the Board to show cause on 
October 19, 2016 as to ``why the stay should not continue.'' Mot., 
Appendix D, at 1. However, it is undisputed that the court lifted 
the stay and that the Board's Order has gone into effect. Mot., 
Appendix E, at 2 (DI Declaration); see also Resp.'s Reply at 1.
---------------------------------------------------------------------------

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.'' With respect 
to a practitioner, 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).
    Respondent acknowledges that the Agency's precedents ``do indeed 
reveal a consistent [and in his view] uncritical repetition of th[is] 
claim, to an extent . . . that the proposition has come to attain near 
sacrosanct status.'' Exceptions, at 2. As he did before the ALJ, he 
contends that the Agency's rule ``is based on the indiscriminate 
intermingling of'' the registration requirements of section 823 and the 
suspension/revocation authority of section 824. Id. at 3. He again 
argues that because ``the term `practitioner' is employed solely in 21 
U.S.C. 823'' and ``does not appear in section 824'' this ``is a clear 
indication that [Congress] did not intend to authorize an automatic, 
summary revocation . . . where a registrant has continued to maintain 
authority to practice and dispense under the laws of any state.'' Id. 
at 4.
    Respondent is mistaken. As the Agency has repeatedly noted, the 
Agency's rule actually derives from the text of section 802(21), which 
defines the term ``practitioner,'' and section 823(f). Notably, in 
section 802(21), 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). 
The text of this provision makes clear that a physician is not a 
practitioner within the meaning of the CSA if he is not ``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.
    To the same effect, Congress, in setting the requirements for 
obtaining a practitioner's registration, 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). Thus, based on 
these provisions, the Agency held nearly forty years ago that ``[s]tate 
authorization to dispense or otherwise handle controlled substances is 
a prerequisite to the issuance and maintenance of a Federal controlled 
substances registration.'' Blanton, 43 FR at 27617 (revoking 
physician's registration based on one-year suspension of his state 
license) (emphasis added).
    As the ALJ recognized, the CSA also provides that ``[a] separate 
registration shall be required at each principal place of business or 
professional practice where the applicant . . . dispenses controlled 
substances.'' 21 U.S.C. 822(e).\2\ Based on this provision, the Agency 
has further explained that, because the issuance of a registration is 
dependent on a practitioner having authority to dispense controlled 
substances under the laws of a particular state, a registration issued 
for a location in one state cannot authorize the practitioner to engage 
in controlled substance dispensing in another state. See Clarification 
of Registration Requirements for Individual Practitioners, 71 FR 69478 
(2006); 21 CFR 1301.12(a) & (b)(3). 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.'').\3\
---------------------------------------------------------------------------

    \2\ See also 21 U.S.C. 822(b) (``Persons registered by the 
Attorney General . . . to . . . dispense controlled substances . . . 
are authorized to possess . . . or dispense such substances . . . to 
the extent authorized by their registration and in conformity with 
the other provisions of this subchapter.'').
    \3\ While the CSA was amended in 1984 to provide the Agency with 
authority to deny a practitioner's registration on public interest 
grounds, the requirement that a practitioner be ``authorized to 
dispense . . . controlled substances under the laws of the States in 
which he practices,'' 21 U.S.C. 823(f), was unaltered by this 
legislation.
---------------------------------------------------------------------------

    Notably, while Respondent holds a medical license in Alabama, his 
registration authorizes him to dispense controlled substances only in 
the State of Louisiana. Moreover, the Show Cause Order proposes only 
the revocation of this registration\4\ and the denial of his 
application for an additional registration in Louisiana. Because 
Congress has clearly mandated that a practitioner possess state 
authority in order to be deemed a practitioner under the Act, and 
Respondent is no longer authorized to dispense controlled substances 
under the laws of Louisiana, the State in which he is registered and 
has applied for an additional registration, revocation of his 
registration and denial of his application are the appropriate 
sanctions. See, e.g., Hooper, 76 FR at 71371-72; Sheran Arden Yeates, 
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.
---------------------------------------------------------------------------

    \4\ There is no evidence in the record as to whether Respondent 
holds a DEA registration in Alabama. Nor does this matter, because 
the Government proposes only the revocation of his Louisiana 
registration and the denial of his application for a second 
registration in that State.
---------------------------------------------------------------------------

    As noted above, Respondent contends that Congress' use of the word 
``registrant'' rather the word ``practitioner'' in section 824 is a 
clear indication that it did not intend to authorize an automatic, 
summary revocation . . . where a registrant has continued to maintain 
authority to practice and dispense under the laws of any state.'' 
Exceptions, at 4. A practitioner is, however, a particular category of 
registrant and thus falls within section 824(a). Given the provisions 
of section 802(21) and 823(f), it is not clear why Congress needed to 
use the word ``practitioner'' in section 824(a) to authorize the Agency 
to effectuate the policy expressed by sections 802(21) and 823(f). 
Moreover, Respondent ignores that there is a good reason for why 
Congress used different language in sections 823(f) and 824(a) to 
describe the class of persons who are subject to each provision, and 
this reason provides no support for Respondent's contention.
    Section 823(f) is specifically applicable to those applicants 
seeking registration as a practitioner, which is just one of eight 
different categories of registration under the CSA. See generally 21 
U.S.C. 823. By contrast, section 824(a), which authorizes the 
imposition of sanctions against a registrant based on any one of five 
findings, is applicable to all categories of registrants under the CSA, 
including Respondent. See, e.g., James L. Hooper,

[[Page 39617]]

76 FR 71371 (2011), pet. for rev. denied Hooper v. Holder, 481 Fed. 
Appx. 826, 829 (4th Cir. 2012).
    As explained above, the Agency's rule that revocation is warranted 
whenever a practitioner is no longer authorized to dispense controlled 
substances under the laws of the state in which he engages in 
professional practice is derived from the specific provisions of the 
Act which define the term ``practitioner'' and set forth the 
registration requirements which are specifically applicable to 
practitioners.\5\ Hooper, 76 FR at 71371-72. Indeed, were I to adopt 
Respondent's view, he would be allowed to maintain his registration 
even though his lack of state authority bars him from obtaining a 
registration in Louisiana in the first place. 21 U.S.C. 823(f).
---------------------------------------------------------------------------

    \5\ Section 824(a)(3) grants authority applicable to all 
categories of DEA registrants (and not only practitioners) as well 
as each of the enumerated findings. As explained in Hooper, this 
general grant of authority in imposing a sanction must be reconciled 
with the CSA's specific provisions which mandate that a practitioner 
hold authority under state law in order to obtain and maintain a DEA 
registration. 76 FR, at 71371-72 (quoting Gozlon-Peretz v. United 
States, 498 U.S. 395, 407 (1991) (``A specific provision controls 
over one of more general application.'') and Bloate v. United 
States, 130 S.Ct. 1345, 1354 (2010) (quoting D. Ginsberg & Sons, 
Inc., v. Popkin, 285 U.S. 204, 208 (1932) (``General language of a 
statutory provision, although broad enough to include it, will not 
be held to apply to a matter specifically dealt with in another part 
of the same enactment.'')).
---------------------------------------------------------------------------

    Moreover, under DEA regulations, a practitioner's registration is 
good for a period of three years, after which a practitioner must 
submit a renewal application. Yet that renewal application remains 
subject to section 823(f), which requires that ``the applicant is 
authorized to dispense . . . controlled substances under the laws of 
the State in which he practices.'' Respondent's view leads to the 
illogical result that a practitioner would need to hold state authority 
to obtain his initial registration and any subsequent renewal of the 
registration, but would not need to hold state authority during the 
intervening period between the granting of his initial application and 
the granting of his renewal application.
    I reject Respondent's contention and adhere to the Agency's 
longstanding and consistent interpretation of the Act, which has been 
affirmed by two courts of appeals. See Hooper v. Holder, 481 Fed. Appx. 
at 828; Maynard v. DEA, 117 Fed. Appx. 941, 945 (5th Cir. 2004). As the 
Fourth Circuit explained in Hooper, in rejecting the practitioner's 
contention that the agency's revocation of his registration ignored the 
discretion granted by section 824 and read the suspension option out of 
the statute:

    We find Hooper's contention unconvincing. Section 824(a) does 
state that the [Agency] may ``suspend or revoke'' a registration, 
but the statute provides for this sanction in five different 
circumstances, only one of which is loss of a State license. Because 
Sec.  823(f) and Sec.  802(21) make clear that a practitioner's 
registration is dependent upon the practitioner having state 
authority to dispense controlled substances, the [Agency'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. 
The [Agency's] decision does not ``read[] the suspension option'' 
out of the statute, because that option may still be available for 
the other circumstances enumerated in Sec.  824(a).

481 Fed. Appx., at 828. See also Maynard, 117 Fed. Appx. at 945 (5th 
Cir. 2004) (upholding revocation of DEA registration after Texas DPS 
summarily suspended practitioner's controlled substance registration, 
noting that the Agency ``has construed the CSA to require revocation 
when a registrant no longer possesses valid state authority to handle 
controlled substances''; ``We agree with [the] argument that it may 
have been arbitrary and capricious had the DEA failed to revoke [the 
physician's] registration under the circumstances.'').
    Respondent makes an additional argument beyond that made in Hooper. 
He contends that ``[it] is noteworthy that [section] 824(a) . . . 
employs the word `may' in authorizing the Attorney General to revoke or 
suspend a registration, when among other factors, the registrant is no 
longer authorized by State law to engage in the dispensing of 
controlled substances.'' Exceptions, at 5. In Respondent's view, 
``under [section] 824(a), the loss of state authority is only one of 
several factors that may result in suspension or revocation of a 
practitioner's DEA registration.'' Id. He thus maintains that ``[t]he 
correct interpretation is that [section] 802(21) and [section] 823(f) 
require state authority in order for the Administrator to grant an 
application for registration, but [section] 824(a)(3) only renders a 
loss of state authority a discretionary factor in determining whether 
to suspend or revoke an existing registration.'' Id. Respondent thus 
contends that Agency's ``practice of deciding these cases on summary 
disposition without providing [him with] the opportunity to present 
other evidence supporting continued registration not only violates the 
plain language of the [CSA] . . . it also denies [him] the due process 
rights to which he is entitled under the'' Administrative Procedure 
Act. Id. at 6.
    Respondent cites no authority for his contention that the various 
grounds set forth in section 824(a) pursuant to which the Agency is 
authorized to suspend or revoke a registration are merely 
``discretionary factors'' in the same manner as are the public interest 
factors of section 823. Indeed, his argument is refuted by the texts of 
section 823(f) and 824(a) and the history of the CSA.
    Notably, section 823(f) instructs that ``[i]n determining the 
public interest, the following factors shall be considered'' and then 
lists the five factors. 21 U.S.C. 823(f). By contrast, section 824(a) 
makes no reference to ``factors.'' Rather, the provision begins with 
the word ``Grounds'' and then states that ``[a] registration pursuant 
to section 823 of this title . . . may be suspended or revoked by the 
Attorney General upon a finding that'' one of the five different 
grounds apply to the registrant.\6\ Id. Sec.  824(a).
---------------------------------------------------------------------------

    \6\ As noted above, Respondent invokes the canon of statutory 
construction that ``[w]here Congress includes particular language in 
one section of a statute but omits it in another . . . , it is 
generally presumed that Congress acts intentionally and purposely in 
the disparate inclusion or exclusion''; he argues that it is 
significant that while Congress used the word ``practitioner'' in 
section 823, it used the word ``registrant'' in section 824(a). 
Exceptions, at 4 (quoting Keene Corp., 508 U.S. at 208 (other 
citation omitted)). Contrary to Respondent's contention, the correct 
comparison is between the language of section 823(f), which states 
that ``[i]n determining the public interest, the following factors 
shall be considered,'' and the language of section 824(a), which 
authorizes the Agency to suspend or revoke a registration upon 
making one of the five enumerated ``finding[s].''
---------------------------------------------------------------------------

    Had Congress intended that the various findings set forth in 
section 824(a) be treated as ``discretionary factors,'' it would have 
done so by using language similar to that it used in section 823(f). 
See Jama v. ICE, 543 U.S. 335, 341 (2005) (``We do not lightly assume 
that Congress has omitted from its adopted text requirements that it 
nonetheless intends to apply, and our reluctance is even greater when 
Congress has shown elsewhere in the same statute that it knows how to 
make such a requirement manifest.'').
    Rather, the findings enumerated in section 824(a) are grants of 
authority, each of which provides an independent and adequate ground to 
impose a sanction on a registrant. See Alfred S. Santucci, 67 FR 68688 
(2002) (``Loss of state authority is an independent ground to revoke a 
practitioner's registration under 21 U.S.C. 824(a)(3).''); VI Pharmacy, 
Rushdi Z. Salem, 69 FR 5584, 5585 (2004) (``Pursuant to 21 U.S.C. 
824(a)(1), falsification of a DEA application constitutes independent 
grounds to revoke a registration.'');

[[Page 39618]]

Lazaro Guerra, 68 FR 15226, 15227 (2003) (``mandatory exclusion from 
participation in the Medicare program pursuant to 42 U.S.C. 1320a-7(a) 
. . . is an independent ground for revoking a DEA registration'' 
(citing 21 U.S.C. 824(a)(5)). See also Richard B. Lynch, Jr., 50 FR 
7844, 7845 (1985) (Agency made findings under section 824(a) (1), 
824(a)(2), and 824(a)(3); ``The Administrator concludes that there are 
three independent statutory grounds for denial of the subject 
application.'').
    The Agency's interpretation is buttressed by the CSA's legislative 
history. As originally enacted, the CSA granted the Attorney General 
authority to suspend or revoke a registration:
upon a finding that the registrant--

    (1) has materially falsified any application filed pursuant to 
or required by this title [the CSA] or title III [the Controlled 
Substance Import Export Act (CSIEA), 21 U.S.C. 951-971];
    (2) has been convicted of a felony under [the CSA or CSIEA] or 
any other law of the United States, or of any State, relating to any 
substance defined in this title as a controlled substance; or
    (3) has had his state license or registration suspended, 
revoked, or denied by competent state authority and is no longer 
authorized by State law to engage in the . . . dispensing of 
controlled substances.

Pub. L. 91-513, Sec.  304, 84 Stat. 1255 (codified at 21 U.S.C. 
824(a)).\7\
---------------------------------------------------------------------------

    \7\ Cf. Reiter v. Sonotone Corp., 442 U.S.C. 330, 339 (1979) 
(``Canons of construction ordinarily suggest that terms connected by 
a disjunctive be given separate meanings, unless the context 
dictates otherwise[.]) (citing FCC v. Pacifica Foundation, 438 U.S. 
726, 739-40 (1978)).
---------------------------------------------------------------------------

    Describing this provision, the House Report explained that 
``[s]ubsection (a) of this section empowers the Attorney General to 
revoke or suspend any registration issued under this title if it is 
found that the holder has falsified his application, lost his State 
license, or has been convicted of a felony violation relating to any 
controlled substance.'' H. Rep. No. 91-1444 (1970), as reprinted in 
1970 U.S.C.C.A.N. 4566, 4608-09. Absent from this statement is any 
discussion that in determining the sanction, the Attorney General was 
required to consider not only whether a registrant had lost his state 
authority, but also whether he had also materially falsified his 
application or had been convicted of a felony related to a controlled 
substance.
    Moreover, while in 1984, Congress amended the CSA by granting the 
Attorney General authority to deny an application for a practitioner's 
registration and to revoke an existing registration on public interest 
grounds, it did so to increase the Agency's authority to respond to the 
``[i]mproper diversion of controlled substances by practitioners,'' 
which Congress explained ``is one of the most serious aspects of the 
drug abuse problem.'' H. Rep. No. 98-1030, at 266 (1984), as reprinted 
in 1984 U.S.C.C.A.N. 3182, 3448. The House Report explained that 
``effective Federal actions against practitioners has been severely 
inhibited by the limited authority in current law to deny or revoke 
practitioner registrations'' and that ``the current limited grounds for 
revoking or denying a practitioner's registration have been cited as 
contributing to the problem of diversion of dangerous drugs.'' Id. 
Finding that ``the overly limited bases in current law for denial or 
revocation of a practitioner's registration do not operate in the 
public interest,'' Congress amended section 823(f) ``to expand the 
authority of the Attorney General to deny a practitioner's registration 
application'' based upon a finding ``that registration would be 
`inconsistent with the public interest.''' Id. (emphasis added).
    While Congress also amended section ``824(a) to add to the current 
bases for denial, revocation, or suspension of registration a finding 
that registration would be inconsistent with the public interest on the 
grounds specified in [section] 823, which will include consideration of 
the new factors added by'' the amendment, id. at 266-67, Congress did 
not otherwise alter the text of section 824(a), which makes clear that 
the various paragraphs of this provision are findings, each of which 
provides an independent and adequate ground to support agency action 
against a registration, and not discretionary factors to be considered 
by the Agency. Indeed, Respondent points to nothing in the language of 
section 824 or the CSA's legislative history to support his position, 
which would fundamentally alter the scope of the Agency's authority 
under section 824.
    Nor is there any merit to Respondent's contention that denying him 
``the opportunity to present other evidence supporting [his] continued 
registration'' denies him due process. Exceptions, at 6. As explained 
above, in a proceeding brought against a practitioner under section 
824(a)(3), the only fact that is material is whether the practitioner 
is currently authorized to dispense controlled substances under laws of 
the state in which he practices and is registered. Because ``other 
evidence supporting [his] continued registration'' is not material to 
the outcome of this proceeding, and Respondent was provided with the 
opportunity to put forward evidence disputing the only material fact at 
issue, I reject his contention that the use of summary disposition 
denied him due process. See Rezik A. Saqer, 81 FR 22122, 22124 (2016) 
(citing cases).
    I therefore reject each of Respondent's Exceptions. Based on the 
ALJ's finding that Respondent is not currently authorized to dispense 
controlled substances in Louisiana, the State in which he holds the DEA 
registration at issue in this proceeding and seeks an additional 
registration, I will adopt the ALJ's recommended order that I revoke 
his registration and deny his application.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
BF4179203 issued to Arnold E. Feldman, M.D., as well as DATA 
Identification No. XF4179203, be, and they hereby are, revoked. I 
further order that the Application of Arnold E. Feldman, M.D., for a 
registration as a Hospital/Clinic, as well any application to renew the 
above the registration or for any other registration in the State of 
Louisiana, be, and it hereby is, denied. This ORDER is effective 
immediately.\8\
---------------------------------------------------------------------------

    \8\ Based on the Board's findings with respect to the sixth 
charge of the Administrative Complaint, which found that he violated 
state law by prescribing, dispensing, or administering legally 
controlled substances or any dependency-inducing medication without 
legitimate medical justification thereof or in other than a legal or 
legitimate manner,'' I find that the public interest necessitates 
that this Order be effective immediately. Mot. for Summ. Disp., 
Appendix C, at 13, 15; see also 21 CFR 1316.67.

    Dated: August 14, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-17640 Filed 8-18-17; 8:45 am]
 BILLING CODE 4410-09-P