[Federal Register Volume 77, Number 221 (Thursday, November 15, 2012)]
[Notices]
[Pages 68149-68150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27692]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-51]


Karen Paul Holley, M.D.; Decision and Order

    On July 27, 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. 
According, I will order that Respondent's DEA Certificate of 
Registration be revoked and that any pending application to renew or 
modify her registration 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 Number BH8988339, issued to Karen P. Holley, M.D., be, and 
it hereby is, revoked. I further order that any pending application of 
Karen P. Holley, M.D., to renew or modify her registration, be, and it 
hereby is, denied. This Order is effective December 17, 2012.

    Dated: October 26, 2012.
Michele M. Leonhart,
Administrator.
Theresa Krause, Esq., for the Government
John H. Musser, IV, Esq., for the Respondent

Order Granting the Government's Motion for Summary Disposition and 
Recommended Decision

    Chief Administrative Law Judge John J. Mulrooney, Jr. The Deputy 
Assistant Administrator, Drug Enforcement Administration (Government), 
issued an Order to Show Cause (OSC), dated May 21, 2012, proposing to 
revoke the DEA Certificate of Registration (COR), Number BH8988339, of 
Karen Paul Holley, M.D. (Respondent), pursuant to 21 U.S.C. 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. 823(f). In the 
OSC, the Government alleges that revocation is necessary because the 
Respondent is ``without authority to handle controlled substances in 
the State of Louisiana,'' the state of the Respondent's registration. 
OSC, at 1-2.
    On July 3, 2012, the DEA Office of Administrative Law Judges (OALJ)

[[Page 68150]]

received from the Respondent, through counsel, a timely filed request 
for hearing (Hearing Request) which, concedes that the Respondent lacks 
authority to handle controlled substances in the State of Louisiana. 
The same day, this tribunal issued an order: (1) Directing the 
Government to ``provide evidence to support the allegation that the 
Respondent lacks state authority to handle controlled substances'' on 
or before July 13, 2012; (2) setting a deadline of July 13, 2012, for 
the Government to file a motion for summary disposition; and (3) 
setting a deadline of July 25, 2012, for the Respondent to respond to 
any motion for summary disposition. Briefing Schedule, at 1-2.
    On July 6, 2012, the Government filed a Motion for Summary 
Disposition (``MSD''), seeking: (1) Summary disposition; and (2) a 
recommendation that ``the Respondent's DEA COR as a practitioner be 
revoked, based on the Respondent's lack of a state license.'' MSD, at 
5. A copy of an April 21, 2012, Order for Summary Suspension of Medical 
License issued by the Louisiana State Board of Medical Examiners 
(Louisiana Board Order) was attached to the motion. The Respondent did 
not file a response to the Government's motion within the time allowed. 
Accordingly, the motion will be deemed unopposed.
    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. 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.''). DEA has long held that possession 
of authority under state law to dispense controlled substances is an 
essential condition for obtaining and maintaining a DEA registration. 
Serenity Caf[eacute], 77 FR 35027, 35028 (2012); David W. Wang, 72 FR 
54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 
11919 (1988). 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); see 
also 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); 
Abraham A. Chaplan, M.D., 57 FR 55280 (1992); see also Harrell E. 
Robinson, 74 FR 61370, 61375 (2009). ``[R]evocation is warranted even 
where a practitioner's state authority has been summarily suspended and 
the State has yet to provide the practitioner with a hearing to 
challenge the State's action at which he may ultimately prevail.'' 
Kamal Tiwari, M.D., 76 FR 71604, 71606, (2011); see also Bourne 
Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne Lazar Thorn, 62 FR 
12847 (1997).
    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). 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 FR 14945 (1997); Dominick A. Ricci, M.D., 58 FR 51104 (1993), Here, 
both parties agree, and the supplied Louisiana Board Order establishes, 
that the Respondent is without authorization to practice medicine or 
handle controlled substances in Louisiana, the jurisdiction where the 
Respondent holds the DEA COR that is the subject of this litigation.
    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 (D.C. Cir. 1987) (``an agency may ordinarily 
dispense with a hearing when no genuine dispute exists'').\1\ At this 
juncture, no genuine dispute exists over the fact that the Respondent 
lacks state authority to handle controlled substances in the State of 
Louisiana. 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 DEA with the 
authority 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 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).
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    \1\ 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 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).
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    Accordingly, I hereby
    Grant the Government's Motion for Summary Disposition; and 
recommend that the Respondent's DEA registration be revoked forthwith 
and any pending applications for renewal be denied.


    Dated: July 27, 2012.
John J. Mulrooney, II,
Chief Administrative Law Judge
[FR Doc. 2012-27692 Filed 11-14-12; 8:45 am]
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