[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Notices]
[Pages 71371-71374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29709]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 11-66]


James L. Hooper, M.D.; Decision and Order

    On August 9, 2011, Chief Administrative Law Judge (ALJ) John J. 
Mulrooney, II, issued the attached recommended decision. On August 25, 
2011, the Respondent filed Exceptions to the ALJ's decision.
    Having reviewed the record in its entirety including the ALJ's 
recommended decision, and Respondent's Exceptions, I have decided to 
adopt the ALJ's rulings, findings of fact, conclusions of law, and 
recommended order.\1\
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    \1\ All citations to the ALJ's recommended decision are to the 
slip opinion as issued by the ALJ.
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    In his Exceptions, Respondent contends ``that the proper decision 
is suspension'' of his DEA Registration to be effective co-extensively 
with the one-year suspension of his state license to practice medicine. 
Exceptions at 1. He argues that because his state license has been 
suspended for a definite period after which it will be 
``automatic[ally] reinstate[d],'' his case is unlike those cases relied 
on by the Government and ALJ because they involved state suspensions 
which were of an indefinite or indeterminate duration. Id.
    According to Respondent, the Agency's decision in Anne Lazar Thorn, 
M.D., 62 FR 12847 (1997), stands for the proposition that the Agency's 
consistent practice of revoking registrations based on a loss of state 
authority ``rests on the indefinite nature of a State suspension.'' 
Exceptions at 1-2. Respondent quotes the following passage from Thorn:

    [T]he Acting Deputy Administrator recognizes that he has 
discretionary authority to either revoke or suspend a DEA 
registration. However, given the indefinite nature of the suspension 
of Respondent's state license to practice medicine, the Acting 
Deputy Administrator agrees with [the ALJ] that revocation is 
appropriate in this case.

Id. at 2 (quoting 62 FR at 12848).

    Notwithstanding the implication of the above passage, no decision 
of this Agency has held that a suspension (rather than a revocation) is 
warranted where a State has imposed a suspension of a fixed or certain 
duration. To the contrary, in the case of practitioners, DEA has long 
and consistently interpreted the CSA as mandating the possession of 
authority under state law to handle controlled substance as a 
fundamental condition for obtaining and maintaining a registration. 
See, e.g., Leonard F. Faymore, 48 FR 32886, 32887 (1983) (collecting 
cases). As the Thorn decision further explained:

    DEA has consistently interpreted the Controlled Substances Act 
to preclude a practitioner from holding a DEA registration if the 
practitioner is without authority to handle controlled substances in 
the state in which he/she practices. This prerequisite has been 
consistently upheld.
* * * * *
    The Acting Deputy Administrator finds that the controlling 
question is not whether a practitioner's license to practice 
medicine in the state is suspended or revoked; rather it is whether 
the Respondent is currently authorized to handle controlled 
substances in the state. In the instant case, it is undisputed that 
Respondent is not currently authorized to handle controlled 
substances in the [state in which she practices medicine]. 
Therefore, * * * Respondent is not currently entitled to a DEA 
registration.

62 FR at 128438 (citing and quoting 21 U.S.C. 823(f) and 802(21) and 
collecting cases). Accordingly, in Thorn, the Agency rejected the 
Respondent's contention that her registration should be suspended 
rather than revoked.
    Respondent nonetheless argues that ``[r]evocation is not mandated 
for a [state license] suspension for a time certain,'' and that ``[i]n 
such circumstances, suspension of the [DEA registration] is the more 
appropriate remedy.'' Exceptions at 3. Respondent returns to the Thorn 
language that `` `[t]he Acting Deputy Administrator recognizes that he 
has the discretionary authority to either revoke or suspend a DEA 
registration,' '' and argues that ``[t]here are reason[s] the statutory 
framework (21 U.S.C. 824(a)) provides for both suspension and 
revocation. The [ALJ's] Recommended Decision reads the suspension 
option out of the statute.'' Id.
    It is acknowledged that the opening sentence of section 824(a) 
provides that a registration ``may be suspended or revoked by the 
Attorney General'' upon the Attorney General's finding that one of the 
five grounds set forth exist. 21 U.S.C. 824(a). However, Respondent 
does not elaborate on the ``reason[s]'' Congress granted the Agency 
authority to suspend or revoke and how they apply in the context of a 
proceeding brought under section 824(a)(3). In any event, this general 
grant of authority in imposing a sanction must be reconciled with the 
CSA's specific provisions which mandate that a practitioner hold

[[Page 71372]]

authority under state law in order to obtain and maintain a DEA 
registration. See Gozlon-Peretz v. United States, 498 U.S. 395, 407 
(1991) (``A specific provision controls over one of more general 
application.''); see also 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.'')).
    In enacting the CSA, Congress defined the term ``practitioner'' to 
``mean[] 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.'' 21 U.S.C. 802(21). Consistent 
with this definition, Congress, in setting forth the requirements for 
obtaining a practitioner's registration, directed that ``[t]he Attorney 
General shall register practitioners * * * to dispense * * * controlled 
substances * * * if the applicant is authorized to dispense * * * 
controlled substances under the laws of the State in which he 
practices.''' Id. Sec.  823(f) (emphasis added). As these provisions 
make plain, a practitioner can neither obtain nor maintain a DEA 
registration unless the practitioner currently has authority under 
state law to handle controlled substances. Moreover, Respondent ignores 
that even where a practitioner's state license has been suspended for a 
period of certain duration, the practitioner no longer meets the 
statutory definition of a practitioner. Accordingly, notwithstanding 
the language of the grant of authority in section 824(a), I conclude 
that the revocation of Respondent's registration is warranted.\2\
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    \2\ This case presents no occasion to consider whether a state 
suspension of a practitioner's controlled substance authority is of 
such a short duration that revocation of his registration would be 
deemed arbitrary and capricious.
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    Finally, Respondent argues that while the Consent Order constitutes 
resolution of the Board's charges, he did ``not admit any of the facts 
found or any wrongdoing.'' Exceptions, at 4 n.1. As stated above, 
Respondent's argument is not well taken because the State's action in 
suspending his medical license is by itself, and independent ground to 
revoke his registration. 21 U.S.C. 824(a)(3).
    Accordingly, I will adopt the ALJ's recommended decision and will 
order that Respondent's DEA registration be revoked and that any 
pending applications for renewal be denied.

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), I order that DEA Certificate of 
Registration BH4289028, issued to James L. Hooper, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
James L. Hooper, M.D., to renew or modify his registration, be, and it 
hereby is, denied. This Order is effective immediately.\3\
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    \3\ Based on the extensive findings set forth in the State 
Consent Order establishing that Respondent diverted controlled 
substances, and the State Board's ultimate conclusion that he 
``prescribed * * * drugs for illegitimate medical purposes in 
violation of state law,'' GX A, at 23; I conclude that the public 
interest requires that this Order be made effective immediately. 21 
CFR 1316.67.

    Dated: November 8, 2011.
Michele M. Leonhart,
Administrator.

Jonathan P. Novak, Esq., for the Government

Allen H. Sachsel, Esq., for the Respondent

Order Granting Motion for Summary Disposition and Recommended Decision

    John J. Mulrooney, II, Chief Administrative Law Judge. The Deputy 
Assistant Administrator, Drug Enforcement Administration (DEA or 
Government), issued an Order to Show Cause (OSC), dated June 27, 2011, 
proposing to revoke the DEA Certificate of Registration (COR), Number 
BH4289028, of James L. Hooper, M.D. (Respondent), pursuant to 21 U.S.C. 
824(a)(3) and (4) (2006), because, according to the Government, the 
Respondent's continued registration is inconsistent with the public 
interest as that term is used in 21 U.S.C. 823(f) (2006 & Supp. III 
2010). Among several alleged factual predicates presented in support of 
revocation, the Government's OSC alleges that the Respondent is without 
authority to handle controlled substances in Maryland, the registered 
location of his COR. OSC at 1.
    On July 22, 2011, the Respondent, through counsel, filed a timely 
request for hearing (Hearing Request). Therein, the Respondent conceded 
that he is presently under a one-year suspension from the practice of 
medicine by the Maryland Board of Physicians (Maryland Board) and 
acknowledged that he has turned in his DEA COR to that body.
    On July 25, 2011, I issued an order which directed, inter alia, 
that the Government provide evidence to support its allegation that the 
Respondent lacks authority to handle controlled substances in the state 
in which he is registered with DEA, and set out a schedule for the 
parties to brief the issues.
    On July 26, 2011, the Government timely filed a document styled 
``Motion for Summary Disposition'' (Motion for Summary Disposition), 
wherein it avers that the Respondent was licensed by the state of 
Maryland to practice medicine, but through a Consent Order between the 
Respondent and the Maryland Board of Physicians effective June 7, 2011 
(attached to the Motion for Summary Disposition), his state medical 
license was, inter alia, suspended for a period of one year. See Gov't 
Mot. for Summ. Dispo. at 1, Ex. A at 23. The Government has 
simultaneously requested a stay of proceedings pending a ruling on its 
Motion for Summary Disposition. Id. at 2.\1\
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    \1\ At present, there are neither directives pending compliance, 
nor are there outstanding event dates scheduled by this tribunal, 
aside from the briefing schedule previously issued in this matter.
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    On its face, the Consent Order from the Maryland Board suspends the 
Respondent's license with the voluntary assent of the Respondent, id., 
Ex. A at 27, after concluding that, inter alia, ``Respondent is guilty 
of unprofessional conduct in the practice of medicine, in violation of 
[Md. Code Ann., Health Occ.] Sec.  14-404(a)(3)(ii); is professionally 
* * * incompetent, in violation of [Md. Code Ann., Health Occ.] Sec.  
14-404(a)(4); and [had] prescribed * * * drugs for * * * illegitimate 
medical purposes in violation of [Md. Code Ann., Health Occ.] Sec.  14-
404(a)(27),'' id., Ex. A at 23. Persistently scrutinized among the 
Board's findings is the Respondent's prescribing practices related to 
controlled substances.
    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. Id. at 1-2; see 
id., Ex. A at 23.
    The Respondent's timely-filed response in opposition asserts, 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. Resp't Resp. at 3. The Respondent argues that 
sanctions provided for under the CSA that are less severe than 
revocation are appropriate, such as

[[Page 71373]]

suspension of his COR.\2\ Id. As a mitigating basis for a sanction 
recommendation less than revocation, the Respondent points out that the 
cases cited by the Government in its summary disposition motion involve 
DEA COR revocations based on a state disciplinary action other than a 
temporary, definite-period suspension of a state medical license. Id. 
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 rationale of prior DEA decisions.'' 
Id. at 4.
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    \2\ See 21 U.S.C. 824(a) (2006) (``A registration * * * may be 
suspended or revoked * * *'') (emphasis supplied).
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    The Respondent also argues that the structure of the Consent Order 
somehow affects the Agency's ability to issue or maintain a COR in the 
absence of state authority. Specifically, the Respondent posits that 
under his circumstances, where ``a self-executing [o]rder * * * 
restores [his] medical license * * * automatically, and at a time 
certain,'' that the appropriate remedy is ``suspension coextensive with 
the loss of State privileges * * * and [that] is consistent with the 
rationale of prior DEA decisions.'' Resp't Resp. at 4-5 (emphasis 
removed). However, the plain language employed by the Agency in the 
principal case cited by the Respondent in support of his position, Anne 
Lazar Thorn, M.D., 62 FR 12847 (1997), undermines any action short of 
summary revocation. In Thorn, the Agency affirmed the Administrative 
Law Judge's summary disposition recommended decision and specifically 
rejected the view that a COR could coexist in the face of an absence of 
state authority to handle controlled substances. In that case, the 
Agency held that:

the controlling question is not whether a practitioner's license to 
practice medicine in the state is suspended or revoked; rather, it 
is whether the Respondent is currently authorized to handle 
controlled substances in the state. In the instant case, it is 
undisputed that Respondent is not currently authorized to handle 
controlled substances in the [state where his COR has its listed 
address]. Therefore, * * * Respondent is not currently entitled to a 
DEA [COR].

Id. at 12848 (emphasis supplied). The controlling question posed on the 
acknowledged facts here must, like the Respondent's petition for a 
hearing, be answered in the negative. In this regard, it is also 
imperative to acknowledge that it is DEA's responsibility to determine 
suitability to maintain a COR, not the Maryland Board. See Edmund 
Chein, M.D., 72 FR 6580, 6590 (2007) (ultimate responsibility to 
determine whether a registration is consistent with the public interest 
has been delegated exclusively to the DEA, not to entities within state 
government), aff'd, Chein v. DEA, 533 F.3d 828 (DC Cir. 2008), cert. 
denied, ---- U.S. ----, 129 S. Ct. 1033, 1033 (2009); Mortimer B. 
Levin, D.O., 55 FR 8209, 8210 (1990) (even reinstatement of state 
medical license does not affect DEA's independent responsibility to 
determine whether a registration is in the public interest). The 
considerations employed by, and the public responsibilities of, a state 
medical board in determining whether a practitioner may continue to 
practice within its borders are not coextensive with those attendant 
upon the determination that must be made by DEA relative to continuing 
a registrant's authority to handle controlled substances. Put another 
way, adopting the Respondent's argument would imbue the drafters of 
state medical board orders to circumscribe the options of the DEA 
relative to its registrants. Such a result finds no support in the 
statutes and regulations governing DEA or the Maryland Board and is 
contrary to logic.
    In Calvin Ramsey, M.D., 76 FR 20034, 20036 (2011), the Agency 
stated its position regarding the current factual scenario with such 
unambiguous precision that little room is realistically left for debate 
on the matter:

DEA has repeatedly held that the CSA requires the revocation of a 
registration issued to a practitioner whose state license has been 
suspended or revoked. David W. Wang, 72 [FR] 54297, 54298 (2007); 
Sheran Arden Yeates, 71 [FR] 39130, 39131 (2006); Dominck A. Ricci, 
58 [FR] 51104, 51105 (1993); Bobby Watts, 53 [FR] 11919, 11920 
(1988). This is so even where a state board has suspended (as 
opposed to revoked) a practitioner's authority with the possibility 
that the authority may be restored at some point in the future. 
[Roger A. Rodriguez, 70 FR 33206, 33207 (2005)].

    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].'' 
Alfred E. Boyce, M.D., 76 FR 17672, 17673 (2011) (emphasis supplied) 
(quoting Scott Sandarg, D.M.D., 74 FR 17528, 174529 (2009); John B. 
Freitas, D.O., 74 FR 17524, 17525 (2009)); Roy Chi Lung, 74 FR 20346, 
20347 (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) (2011). 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.

[[Page 71374]]

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). To paraphrase the Agency's view 
as stated in Ramsey,

[t]here being no dispute that the Respondent lacks the requisite 
authority, there [is] no need for an evidentiary hearing, as summary 
judgment has been used for more than 100 years to resolve legal 
``actions in which there is no genuine issue as to any material 
fact'' and has never been deemed to violate Due Process. See Fed. R. 
Civ. P. 56 (Advisory Committee Notes 1937 Adoption). Cf. Codd v. 
Velger, 429 U.S. 624, 627 (1977).

76 FR at 20036.
    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 Maryland, his state of registration with the DEA, since 
his state medical practitioner's license was suspended (with his own 
consent) on June 7, 2011. Notwithstanding the Respondent's arguments to 
the contrary, the dispositive consideration lies in his absence of 
state authority to handle controlled substances, which inexorably 
dictates that he is not entitled to maintain his DEA registration. 
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 a 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 9, 2011.
John J. Mulrooney, II,
Chief Administrative Law Judge.
[FR Doc. 2011-29709 Filed 11-16-11; 8:45 am]
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