[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Notices]
[Pages 17672-17673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7390]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 10-64]


Alfred E. Boyce, M.D.; Decision and Order

    On August 12, 2010, Administrative Law Judge (ALJ) John J. 
Mulrooney, II, issued the attached recommended decision. The Respondent 
did not file exceptions to the decision.
    Having reviewed the record in its entirety including the ALJ's 
recommended decision, I have decided to adopt the ALJ's rulings, 
findings of fact, conclusions of law, and recommended Order.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b) and 0.104, I order that DEA 
Certificate of Registration, FB0003943, issued to Alfred E. Boyce, 
M.D., be, and it hereby is, revoked. I further order that any pending 
application of Alfred E. Boyce, M.D., to renew or modify his 
registration, be, and it hereby is, denied. This Order is effective 
immediately.

    Dated: March 18, 2011.
Michele M. Leonhart,
Administrator.
James Hambuechen, Esq., for the Government;
Bradford M. Cohen, Esq., for the Respondent

Order Granting Government Motion for Summary Disposition and 
Recommended Decision

    John J. Mulrooney, Administrative Law Judge. The Deputy Assistant 
Administrator, Drug Enforcement Administration (DEA or Government), 
issued an Order to Show Cause (OSC), dated May 13, 2010, proposing to 
revoke the DEA Certificate of Registration (COR), Number FB0003943, of 
Alfred E. Boyce, D.O. (Respondent), pursuant to 21 U.S.C. 824(a)(3) and 
(4), and deny any pending applications for renewal or modification of 
the COR, pursuant to 21 U.S.C. 823(f), because the Respondent's 
continued registration is inconsistent with the public interest as that 
term is used in 21 U.S.C. 823(f). In the OSC, the Government alleges 
that the Respondent is, inter alia, ``without authority to handle 
controlled substances in the state of Florida'' as grounds for 
revocation of Respondent's DEA registration.
    On July 22, 2010, the DEA Office of Administrative Law Judges 
(OALJ) received two separate documents from Respondent's counsel, each 
dated July 19, 2010, reflecting a notice of attorney appearance and a 
timely \1\ request for hearing.\2\
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    \1\ Because the initial record contained no indication about the 
actual service date of the OSC or other information allowing for an 
evaluation of whether the Respondent's hearing request was timely 
made pursuant to 21 CFR 1301.43, an order issued on July 27, 2010 
wherein the Government was directed to provide evidence of the date 
of OSC service. After review of the submissions of the parties, it 
appears that the Respondent's hearing request was timely filed.
    \2\ The Respondent's request for a hearing ``in the matter of: 
Department of Health v. Alfred Eversley Boyce, D.O., Case No. 10-
3167PL'' (emphasis supplied), i.e. the state administrative action 
in Florida, that was filed on OALJ is herein deemed to constitute a 
sufficient request for hearing relative to these proceedings.
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    On July 27, 2010, an order issued which directed, inter alia, that 
the Government provide evidence to support its allegation that 
Respondent lacks state authority in the state in which he is registered 
with DEA to handle controlled substances. A briefing schedule was also 
provided in the order fixing dates for the requesting filings, any 
Government motions for summary judgment or termination of proceedings 
based thereon, and any reply thereto by the Respondent.
    On July 28, 2010, the Government timely filed a document styled 
``Government's Motion for Stay of Proceedings and Summary Disposition'' 
(Government's Motion) wherein it seeks relief in the form of summary 
disposition based on its assertion that the Respondent ``is not duly 
authorized to possess, dispense, or otherwise handle controlled 
substances in the State of Florida, the jurisdiction in which the 
Respondent engages in the practice of medicine.'' Govt. Mot. at 1. 
Attached to the Government's Motion was a copy of an Order of Emergency 
Suspension of License (Emergency Suspension Order) issued by the State 
of Florida Department of Health (Florida DOH) on April 28, 2010. Govt. 
Mot. at Attach. 1 \3\ (Florida DOH Order of Emergency Suspension of 
License dated April 28, 2010). The Emergency Suspension Order reflects 
the immediate suspension of the Respondent's license to practice as an 
osteopathic physician in the state, pending further proceedings. The 
Florida DOH action is not based upon pending DEA proceedings, but based 
upon on its own factual findings that the Respondent violated numerous 
Florida statutes and administrative code provisions related to the 
prescribing of controlled substances, and its determination that the 
Respondent's ``continued practice as an osteopathic physician 
constitutes an immediate serious danger to the health, safety, or 
welfare of the public.'' Id. In its motion, the Government correctly 
contends that state authority is a necessary condition precedent for 
the acquisition or maintenance of a DEA registration, and the 
suspension of the Respondent's state practitioner's license precludes 
the continued maintenance of his DEA COR, thus requiring revocation. 
Govt. Mot. at 2; see id. at Attach. 1.
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    \3\ The Government's attachment will be included in the record 
as Government Exhibit 1.
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    The Respondent filed an opposition on August 10, 2010, asserting, 
in essence, that the CSA does not strictly require COR revocation 
pursuant to 21 U.S.C. 824(a)(3) where a registrant's state license has 
been suspended and the registrant has lost state authorization to 
dispense controlled substances. The Respondent argues that sanctions 
provided for under the CSA that are lesser than revocation are 
appropriate, such as suspension of his COR,\4\ or limiting the 
suspension or revocation of his COR only ``to the particular controlled 
substance [] with respect to which grounds for revocation or suspension 
exist.'' 21 U.S.C. 824(b). As a mitigating basis for a sanction 
recommendation lesser than revocation, the Respondent points out that 
the cases cited by the Government in its summary disposition motion 
involve DEA COR revocations based on conduct other than

[[Page 17673]]

a temporary suspension of a state medical license. For that reason, the 
Respondent argues that a summary disposition in these DEA proceedings, 
based on the suspension of his state licensure, ``would be inconsistent 
with [the Agency's] previous rulings and would create a manifest 
injustice to Respondent.'' While the Respondent's position is not 
without some level of facial appeal, it is unsupported by the 
applicable statutes, regulations and precedent emanating from both the 
courts and the Agency.
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    \4\ See 21 U.S.C. 824(a) (``A registration * * * may be 
suspended or revoked * * *.'' (emphasis supplied)).
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    The Controlled Substances Act (CSA) requires that a practitioner 
must be currently authorized to handle controlled substances in ``the 
jurisdiction in which he practices'' in order to maintain a DEA 
registration. See 21 U.S.C. 802(21) (``[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 id. Sec.  823(f) (``The Attorney 
General shall register practitioners * * * if the applicant is 
authorized to dispense * * * controlled substances under the laws of 
the State in which he practices.''). Therefore, 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]'' 
(emphasis supplied). Roy Chi Lung, 74 FR 20346, 20347 (2009); 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); Dominick A. Ricci, 
M.D., 58 FR 51104 (1993); Abraham A. Chaplan, M.D., 57 FR 55280 (1992); 
Bobby Watts, M.D., 53 FR 11919 (1988).
    Denial of an application or revocation of a registration via a 
summary disposition procedure is also warranted if the period of a 
suspension is temporary, or if there exists the potential that 
Respondent's state controlled substances privileges will be reinstated, 
because ``revocation is also appropriate when a state license has been 
suspended, but with the possibility of future reinstatement,'' 
Rodriguez, 70 FR at 33207 (citations omitted), and even where there is 
a judicial challenge to the state medical board action actively pending 
in the state courts. Michael G. Dolin, M.D., 65 FR 5661, 5662 (2000).
    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). Once DEA has made its prima facie case for 
revocation of the registrant's DEA COR, the burden of production then 
shifts to the Respondent to show that, given the totality of the facts 
and circumstances in the record, revoking the registrant's registration 
would not be appropriate. Morall v. DEA, 412 F.3d 165, 174 (DC 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).
    Regarding the Government's request for summary disposition of the 
present case, 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), under the rationale that 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).
    The record evidence in the instant case clearly demonstrates that 
no genuine dispute exists over the established material fact that 
Respondent currently lacks state authority to handle controlled 
substances in Florida, his state of registration with the DEA, since 
his state osteopathic medical practitioner's license was suspended on 
April 28, 2010. Notwithstanding the Respondent's attempts to 
distinguish the rationale for revocation in the cases cited by the 
Government as factually dissimilar to his own circumstances, the 
dispositive consideration here is that because the Respondent presently 
lacks state authority, both the plain language of the applicable 
federal statutory provisions and Agency interpretive precedent set 
forth herein dictate that the Respondent is not entitled to maintain 
his DEA registration, and therefore a registration action less than 
revocation is not appropriate. Simply put, there is no contested 
factual matter adducible at a hearing that can provide the Agency with 
authority to continue (or a fortiori for me to recommend) his 
entitlement to a COR under the circumstances and further delay in 
ruling on the Government's motion for summary disposition is not 
warranted.
    Accordingly, the Government's Motion for Summary Disposition is 
hereby granted, its Motion for Stay of Proceedings is denied as moot, 
and in view of the presently uncontroverted fact that the Respondent 
lacks state authority to handle controlled substances, it is herein 
recommended that the Respondent's DEA registration be revoked forthwith 
and any pending applications for renewal be denied.

    Dated: August 12, 2010.
John J. Mulrooney, II,
U.S. Administrative Law Judge.
[FR Doc. 2011-7390 Filed 3-29-11; 8:45 am]
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