[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Notices]
[Pages 67671-67673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27522]


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

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-48]


Larry Elbert Perry, M.D.; Decision and Order

    On July 2, 2012, Chief Administrative Law Judge John J. Mulrooney, 
Jr., issued the attached Recommended Decision. Neither party filed 
exceptions to the Recommended Decision.
    Having reviewed the entire record, I have decided to adopt the 
ALJ's findings of fact, conclusions of law, and recommended order. 
Accordingly, I will order that Respondent's DEA Certificate of 
Registration be revoked and that any pending application to renew or 
modify his registration be denied.

[[Page 67672]]

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 Number BP2742357, issued to Larry Elbert Perry, M.D., be, 
and it hereby is, revoked. I further order that any pending application 
of Larry Elbert Perry, M.D., to renew or modify his registration, be, 
and it hereby is, denied. This Order is effective December 13, 2012.

    Dated: October 26, 2012.
Michele M. Leonhart,
Administrator.

Theresa Krause, Esq., for the Government
Frank J. Scanlon, Esq., for the Respondent

ORDER GRANTING THE GOVERNMENT'S UNOPPOSED MOTION FOR SUMMARY 
DISPOSITION, DENYING THE GOVERNMENT'S MOTION TO STAY AND RECOMMENDED 
DECISION

    Chief Administrative Law Judge John J. Mulrooney II. On May 4, 
2012, the Deputy Assistant Administrator of the Drug Enforcement 
Administration (DEA), issued an Order to Show Cause (OSC), proposing to 
revoke the DEA Certificate of Registration (COR), Number BP2742357, of 
Larry Elbert Perry, M.D. (Respondent), pursuant to 21 U.S.C. Sec.  
824(a)(3) and (4) (2006), and to deny any pending applications for 
renewal or modification of such registration, pursuant to 21 U.S.C. 
Sec.  823(f). In the OSC, the Government alleges that revocation is 
necessary because the Respondent does ``not have authority to practice 
medicine or handle controlled substances in the State of Kentucky,'' 
the State of the Respondent's registration. OSC, at 1-2.
    On June 6, 2012, the DEA Office of Administrative Law Judges (OALJ) 
received from the Respondent, through counsel, a timely filed request 
for hearing (Hearing Request) that contained a request for continuance, 
and which conceded that the Respondent lacks authority to handle 
controlled substances in the State of Kentucky. The Respondent's 
Hearing Request contended that the loss of his Kentucky authority was 
based, in large part, on a disciplinary action by the Tennessee Board 
of Medicine, and that an extension should be granted for ``a reasonable 
period of time to allow [the Respondent] to regain his licenses in 
Tennessee and Kentucky.'' The same day, by order of this tribunal, the 
Respondent's motion for a continuance was denied. Order Denying the 
Respondent's Request for Continuance and Directing the Filing of 
Government Evidence in Support of its Lack of State Authority 
Allegation and Briefing Schedule (``Briefing Schedule Order''), at 1. 
In addition to denying the request for a continuance, the Briefing 
Schedule Order directed the Government ``to provide evidence to support 
the allegation that the Respondent lacks state authority to handle 
controlled substances [on or before] June 15, 2012.'' Id. at 2. In this 
regard, the Schedule Order set a June 15, 2012, deadline for the 
Government to file a motion for summary disposition regarding the 
Respondent's alleged lack of state authority and a June 25, 2012, 
deadline for any response to such motion. Id. at 2.
    On June 7, 2012, the Government filed a Motion for Stay of 
Proceedings and Summary Disposition (``MSD''), seeking: (1) summary 
disposition; (2) a recommendation that ``the Respondent's DEA COR as a 
practitioner be revoked, based on the Respondent's lack of a state 
licensure;'' (3) the transmission of the instant matter to the 
Administrator for Final Agency Action; and (4) ``a stay of these 
administrative proceedings pending the results of this Government 
motion.'' MSD, at 5. A copy of a November 19, 2009, Emergency Order of 
Suspension (Suspension Order) issued by the Commonwealth of Kentucky 
Board of Medical Licensure, and a copy of a September 26, 2011, Agreed 
Order of Surrender, which memorialized the Respondent's surrender of 
his state license to practice medicine, were both attached to the MSD. 
The Respondent did not file a response to the Government's motion 
within the time allowed.\1\ Accordingly, the motion will be deemed 
unopposed.
---------------------------------------------------------------------------

    \1\ Indeed, a week has passed since the response due date with 
no word from the Respondent or his counsel.
---------------------------------------------------------------------------

    Congress does not intend for administrative agencies to perform 
meaningless tasks. See Philip E. Kirk, M.D., 48 Fed. Reg. 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). Thus, 
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 Fed. Reg. 14945 (1997); Dominick A. Ricci, M.D., 58 Fed. Reg. 51104 
(1993), Here, both parties agree that the Respondent is without 
authorization to practice medicine or handle controlled substances in 
Kentucky, the jurisdiction where the Respondent holds the DEA COR that 
is the subject of this litigation.
    In order to revoke a registrant's DEA registration, the Government 
has the burden of proving that the requirements for revocation are 
satisfied. 21 C.F.R. Sec.  1301.44(e). Once the Government has made its 
prima facie case for revocation of the registrant's DEA COR, the burden 
of production shifts to the Respondent to show that, given the totality 
of the facts and circumstances in the record, revoking the registrant's 
registration would be inappropriate. Morall v. DEA, 412 F.3d 165, 174 
(D.C. 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 Fed. Reg. 72311 (1980).
    The Controlled Substances Act (CSA) requires that, in order to 
maintain a DEA registration, a practitioner must be authorized to 
handle controlled substances in ``the jurisdiction in which he 
practices.'' 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 Fed. Reg. 20346, 20347 (2009); Scott Sandarg, D.M.D., 74 
Fed. Reg. 17528, 174529 (2009); John B. Freitas, D.O., 74 Fed. Reg. 
17524, 17525 (2009); Roger A. Rodriguez, M.D., 70 Fed. Reg. 33206, 
33207 (2005); Stephen J. Graham, M.D., 69 Fed. Reg. 11661 (2004); 
Dominick A. Ricci, M.D., 58 Fed. Reg. 51104 (1993); Abraham A. Chaplan, 
M.D., 57 Fed. Reg. 55280 (1992); Bobby Watts, M.D., 53 Fed. Reg. 11919 
(1988); see also Harrell E. Robinson, 74 Fed. Reg. 61370, 61375 (2009).
    As explained above, summary disposition of an administrative case 
is warranted where, as here, ``there is no factual dispute of 
substance.'' See Veg-

[[Page 67673]]

Mix, Inc., 832 F.2d 601, 607 (DC Cir. 1987) (``an agency may ordinarily 
dispense with a hearing when no genuine dispute exists'').\2\ At this 
juncture, no genuine dispute exists over the fact that the Respondent 
lacks state authority to handle controlled substances in the State of 
Kentucky. 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 would provide sufficient 
grounds to allow the Respondent to continue to hold his COR. 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 Fed. Reg. 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).
---------------------------------------------------------------------------

    \2\ Even assuming arguendo the possibility that the Respondent's 
state controlled substances privileges could be reinstated, summary 
disposition would still be warranted because ``revocation is also 
appropriate when a state license has been suspended, but with the 
possibility of future reinstatement,'' Rodriguez, 70 Fed. Reg. 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 Fed. Reg. 5661, 5662 
(2000).
---------------------------------------------------------------------------

    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.

    July 2, 2012.

John J. Mulrooney II,

Chief Administrative Law Judge.

[FR Doc. 2012-27522 Filed 11-9-12; 8:45 am]
BILLING CODE 4410-09-P