[Federal Register Volume 77, Number 28 (Friday, February 10, 2012)]
[Notices]
[Pages 7182-7183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3057]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-09]


Scott W. Houghton, M.D.; Decision and Order

    On November 4, 2011, Chief Administrative Law Judge (ALJ) John J. 
Mulrooney, II, issued the attached recommended decision. Neither party 
filed exceptions to the decision. Having reviewed the entire record, 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), I order that DEA Certificate of 
Registration BH8796077, issued to Scott W. Houghton, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Scott W. Houghton, M.D., to renew or modify his registration, be, and 
it hereby is, denied. This Order is effective immediately.\1\
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    \1\ Based on the State's Immediate Suspension of Respondent's 
Connecticut Controlled Substances Registration, I conclude that the 
public interest requires that this Order be effective immediately. 
21 CFR 1316.67.

    Dated: February 1, 2012.
Michele M. Leonhart,
Administrator.

Carrie Bland, Esq., for the Government.
R. Cornelius Danaher, Jr., Esq., for the Respondent.

Order Granting Summary Disposition and Recommended Decision

    Chief Administrative Law Judge John J. Mulrooney, II. The Deputy 
Assistant Administrator, Drug Enforcement Administration (DEA or 
Government), issued an Order to Show Cause (OSC), dated September 
27, 2011, proposing to revoke the DEA Certificate of Registration 
(COR), Number BH8796077, Scott W. Houghton, M.D. (Respondent), 
pursuant to 21 U.S.C. Sec.  824(a)(3) and (4) (2006). In the OSC, 
the Government alleges that Respondent is ``currently without 
authority to handle controlled substances in the [s]tate of 
Connecticut,'' and that, as such, Respondent's continued 
registration is inconsistent with the public interest as that

[[Page 7183]]

term is used in 21 U.S.C. Sec.  823(f) (2006 & Supp. III 2010).\1\ 
OSC at 1.
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    \1\ Interestingly, lack of state authority is the only ground 
for which the Government's charging document has supplied a factual 
basis. Beyond the issue of state authority, no factual basis has 
been included that would provide the Respondent with notice as to 
why his continued registration might be inconsistent with the public 
interest.
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    On October 26, 2011, the Respondent, through counsel, timely 
filed a request for hearing coupled with a request for a 
continuance. An order issued that day which denied the Respondent's 
continuance request and set a briefing schedule on the issue of 
whether he possessed state authority to possess controlled 
substances. The parties timely complied. On October 28, 2011, the 
Government filed a document styled ``Government's Motion for Summary 
Disposition'' (Motion for Summary Disposition) and on November 4, 
2011, the Respondent filed his reply (Respondent's Reply).
    The Government's Motion for Summary Disposition attached a copy 
of a February 3, 2010 Order of Immediate Suspension of Controlled 
Substance Registration (Suspension Order) issued by the Commissioner 
of the Connecticut Department of Consumer Protection, as well as an 
August 13, 2011 Interim Consent Order, executed by the Respondent 
and an official of the Connecticut Department of Health, which 
memorialized the former's suspension and surrender of his state 
license to practice medicine. Both parties agree that the Respondent 
is currently without authorization to practice medicine and handle 
controlled substances in Connecticut, the jurisdiction where he 
holds the DEA COR that is the subject of this litigation. Although 
the Respondent does not contest the current status of his state 
license and lack of authorization to handle controlled substances, 
in his Reply, he has stresses his intention to contest these issues 
before the Connecticut authorities in the future. Reply at 2.
    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. Sec.  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].'' 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); see also Harrell E. Robinson, 74 FR 61370, 61375 (2009).
    In order to revoke a registrant's DEA registration, the DEA has 
the burden of proving that the requirements for revocation are 
satisfied. 21 C.F.R. Sec.  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 motion, summary disposition of an 
administrative case is warranted where, as here, ``there is no 
factual dispute of substance.'' See Veg-Mix, Inc., 832 F.2d 601, 607 
(DC Cir. 1987) (``an agency may ordinarily dispense with a hearing 
when no genuine dispute exists''). A summary disposition would 
likewise be warranted even if the period of suspension were 
temporary, or if there were (as he avers) the potential that 
Respondent's state controlled substances privileges could 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). 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).
    At this juncture, no genuine dispute exists over the established 
material fact that Respondent currently lacks state authority to 
handle controlled substances. Because the Respondent lacks such 
state authority, both the plain language of applicable federal 
statutory provisions and Agency interpretive precedent dictate that 
the Respondent is not entitled to maintain his DEA registration. 
Simply put, there is no contested factual matter adducible at a 
hearing that can provide me with authority to continue his 
entitlement to a COR under the circumstances. I therefore conclude 
that further delay in ruling on the Government's motion for summary 
disposition is not warranted. See Gregory F. Saric, M.D., 76 FR 
16821 (2011) (stay denied in the face of Respondent's petition based 
on pending state administrative action wherein he was seeking 
reinstatement of state privileges).
    Accordingly, I hereby
    GRANT the Government's Motion for Summary Disposition;
    DENY the Government's Motion for Stay of Proceedings as moot;
    and further RECOMMEND that the Respondent's DEA registration be 
REVOKED forthwith and any pending applications for renewal be 
DENIED.

    Dated: November 4, 2011.

John J. Mulrooney, II,
Chief Administrative Law Judge.

[FR Doc. 2012-3057 Filed 2-9-12; 8:45 am]
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