[Federal Register Volume 78, Number 60 (Thursday, March 28, 2013)]
[Notices]
[Pages 19009-19012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07194]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 13-7]


Gary Alfred Shearer, M.D.; Decision And Order

    On February 4, 2013, Administrative Law Judge (ALJ) Christopher B. 
McNeil issued the attached recommended decision. Neither party filed 
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,\1\ and
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    \1\ In opposing the Government's Motion for Summary Disposition, 
Respondent argues that the Kentucky Board of Medical Licensure's 
Order is based upon information provided by law enforcement which 
``is seriously flawed, misconstrued, unverified, unsupported, or 
simply, untrue.'' Resp. Reply to Govt's Mot. for Summ. Disp., at 2. 
Respondent raises a plethora of contentions, including that the 
conduct of the investigators ``was highly prejudicial and, frankly, 
inept,'' id.; that the Board ``cherry-picked'' the charts its 
consultant reviewed and that the consultant's conclusion that 
Respondent ``violated the standard of care was wrong--because there 
was no standard of care in Kentucky regarding what a physician 
should do in the face of inconsistent [urine drug screens] at the 
time these patients were being treated,'' id. at 4; and that the 
Board ignored the consultant's recommendations that his prescribing 
issues could be addressed by educating [him] about proper follow 
up.'' Id. at 8. He then concludes by arguing that ``DEA created the 
case against [him] that led to his suspension[,]'' that ``[t]he 
agency now wants to bootstrap the suspension it caused as a reason 
to revoke [his] license to write controls'' [sic], and that the 
Board ``most likely would never have suspended [his] medical license 
without the DEA's biased, unfairly prejudicial input.'' Id. at 26-
27. As relief, Respondent seeks a hearing and a stay of the matter 
until after the Board's hearing.
    The fact remains that the Board's Order of Emergency Suspension 
remains in effect, and ``DEA has held repeatedly that a registrant 
cannot collaterally attack the result of a state criminal or 
administrative proceeding in a proceeding under section 304, 21 
U.S.C. 824, of the CSA.'' Zhiwei Lin, 77 FR 18862, 18864 (2012) 
(citing cases). As I held in Lin, ``Respondent's various challenges 
to the validity of the [Board's] Suspension Order must be litigated 
in the forums provided by the State,'' and his ``contentions 
regarding the validity of the [Board's] Suspension Order are 
therefore not material to this Agency's resolution of whether he is 
entitled to maintain his DEA registration in'' Kentucky. Id. As 
explained by the ALJ, because Respondent no longer meets the CSA's 
threshold requirement for holding a practitioner's registration, see 
U.S.C. 802(21) and 823(f), he is not entitled to maintain his 
registration and I decline his request to stay the matter until the 
State concludes its proceeding.

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[[Page 19010]]

recommended Order.\2\
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    \2\ While the ALJ ``order[ed] that this case be forwarded to the 
Deputy Assistant Administrator for final disposition,'' Order 
Granting Govt's Motion for Summ. Disp., at 9; under Department of 
Justice regulations, that official has not been delegated the 
authority to issue ``final orders in connection with [the] 
suspension, denial or revocation of [a] registration.'' 28 CFR 
0.104, Appendix to Subpart R of Part 0, Sec.  7.
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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 AS6213172, issued to Gary Alfred Shearer, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Gary Alfred Shearer, 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 findings set forth by the Kentucky Board of 
Medical Licensure in the Emergency Order of Suspension, I conclude 
that the public interest necessitates that this Order be effective 
immediately. See 21 CFR 1316.67.

    Dated: March 21, 2013.
Michele M. Leonhart,
Administrator.
Anthony Yim, Esq., for the Government
Robert T. Core, Esq., for the Respondent

Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

Procedural History

    Christopher B. McNeil, Administrative Law Judge. On November 28, 
2012, the Deputy Administrator of the Drug Enforcement Administration, 
Office of Diversion Control, filed an Order to Show Cause proposing to 
revoke the DEA Certificate of Registration, Number AS6213172, issued to 
Gary Alfred Shearer, M.D. (``Respondent''), pursuant to 21 U.S.C. 
824(a)(3),(4) and 21 U.S.C. 823(f). As grounds for revocation, the 
Government alleges that Respondent is ``without authority to handle 
controlled substances in the State of Kentucky.'' \1\
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    \1\ Order to Show Cause Nov. 28, 2012 at 1.
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    On December 26, 2012, Respondent, through counsel, filed a timely 
request for hearing. Respondent does not dispute that his state license 
was suspended by the Kentucky Board of Medical Licensure. He argues, 
however, that the suspension was imposed ``without any due process 
hearing'' and ``is temporary in nature and is not permanent.'' \2\
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    \2\ Request for Hearing Dec. 26, 2012 at 1.
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    On January 2, 2013, the Government was ordered to provide evidence 
to support the allegation that Respondent lacks state authority to 
handle controlled substances. Its Motion for Summary Disposition was 
received on January 8, 2013, with proof of service upon the Respondent. 
Accompanying the Motion was an affidavit by Stephanie Burkhart, dated 
January 3, 2013, and a photocopy of a document entitled ``Emergency 
Order of Suspension,'' appearing to be filed on September 24, 2012, 
with the Commonwealth of Kentucky Board of Medical Licensure. This 
Order states that the Board suspended the medical license it issued to 
the Respondent, Gary A. Shearer, M.D., effective upon the Respondent's 
receipt of the Order.
    In my Order dated January 2, 2013, I provided to Respondent the 
opportunity to respond to the Government's Motion for Summary 
Disposition. I received that response on January 22, 2013. In his Reply 
to the Government's Motion for Summary Disposition, Respondent, through 
counsel, requests that I overrule the Government's motion, that a 
hearing be held prior to the disposition of this administrative charge, 
that these proceedings be held in abeyance until at least May 7, 2013, 
at which time Respondent anticipates presenting evidence to the 
Kentucky Medical Board, and that he be given an opportunity ``to prove 
that he has violated no law and adhered to the standards of care of his 
profession.'' \3\
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    \3\ Reply to the Government's Motion for Summary Disposition 
Jan. 22, 2013 at 1.
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    Accompanying the Respondent's Reply was a compact disk, the 
contents of which were described within the Reply. Summarized, the 
contents include records that Respondent avers are relevant to his 
assertion that he has violated no law and has adhered to the standards 
of care of his profession. I have not read all of the pages contained 
on the disk. I have, however, examined portions of the 7,000 or so 
pages contained therein. Coupled with the factual and legal premises 
Respondent's counsel presented in his Reply, I believe I have a 
sufficient understanding of the contents of the disk to proceed. (For 
reasons set forth below, the disk has not been admitted as an exhibit, 
nor are its contents evidence in this proceeding. The disk remains in 
the record strictly as a proffer.)
    Contained on the disk are medical records reflecting treatment 
provided by Respondent and other medical professionals. The records 
provide information about the treatment of patients whose circumstances 
were examined by the Kentucky Medical Board. In his Reply brief, 
Respondent states that the Motion for Summary Disposition now before me 
is based on the judgment of the Kentucky Medical Board, but that the 
Board's judgment was not predicated on evidence gathered during a Board 
hearing, and that in fact Respondent has not yet been permitted to 
present evidence to that Board. He stated he expects to make such a 
presentation during a due process hearing currently scheduled to take 
place before the Kentucky Medical Board on May 7, 8, and 9, 2013.\4\
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    \4\ Id.
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Issue

    The substantial issue raised by Respondent concerns this set of 
circumstances. Respondent correctly contends that the Government's 
Motion for Summary Disposition is based on the determination by the 
Kentucky Medical Board that his license to practice medicine in the 
Commonwealth should be suspended. He states that he currently is not 
practicing medicine and is not prescribing any controlled substances. 
He states that because of the temporary suspension of his license, his 
medical practice is now idled.\5\
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    \5\ Id. at 1-2.
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    Beyond his contention that the Medical Board's action has been 
taken without the opportunity to present evidence or respond to the 
same, Respondent makes a pointed claim regarding the role of the United 
States Department of Justice and the Drug Enforcement Administration. 
Respondent contends that the Medical Board's action is predicated 
wholly on action by investigators of the Drug Enforcement 
Administration, averring that ``the suspension was imposed by the Board 
because of information furnished to it by Diversion and Task Force 
Investigators of the DEA.'' \6\ He then asserts that DEA Diversion 
personnel ``approached the [Medical Board] and loaded the [B]oard up 
with misinformation [].'' \7\ He contends that ``much of the alleged 
information the DEA Diversion Investigators provided the [Medical 
Board] is seriously flawed, misconstrued, unverified, unsupported, or, 
simply, untrue.'' \8\ According to Respondent, the evidence presented 
to the Medical Board ``was highly prejudicial and, frankly, inept.'' 
\9\ The

[[Page 19011]]

sum and substance of this feature of Respondent's Reply is that the 
Diversion investigators ``ought not be permitted to engineer a state 
licensure suspension, then bootstrap that questionable conduct into a 
DEA summary revocation.'' \10\
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    \6\ Id. at 2.
    \7\ Id.
    \8\ Id.
    \9\ Id.
    \10\ Id.
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The Respondent's Contentions

    There are thus two legal bases upon which Respondent relies in his 
argument against summary disposition. First, he challenges the 
propriety of the Kentucky Medical Board's decision to summarily suspend 
his medical license without first giving him the opportunity to 
confront evidence against him and introduce evidence in support of his 
own cause. Second, he challenges the propriety (and the fairness) of 
conditions that permit the DEA to force the revocation of his DEA 
Certificate without ever having the opportunity to present evidence in 
his own behalf and without the chance to challenge evidence that has 
been presented against him.
    Missing from the otherwise thorough iteration of his premises is 
any reference to authority, legal or otherwise, that would permit me to 
enter into the weighing of the evidence Respondent has presented in 
this Reply. The scope and focus of the proceedings now before me are 
relatively concrete and highly circumscribed. They also are accurately 
set forth by the Government in its Motion for Summary Disposition, an 
analysis I am endorsing here.

Scope of Authority

    The case before me is presented under a grant of authority to 
either suspend or revoke a registration ``upon a finding'' that a 
registrant ``has had his State license or registration suspended, 
revoked, or denied by competent State authority and is no longer 
authorized by State law to engage in the * * * dispensing of controlled 
substances.'' \11\ My authority in this case arises because the DEA has 
jurisdiction over, and can register, ``practitioners.'' Federal 
statutory authority describes a ``practitioner'' as ``a physician * * * 
or other person licensed, registered, or otherwise permitted, by the 
United States or the jurisdiction in which he practices * * * to 
distribute, dispense, * * * [or] administer * * * a controlled 
substance in the course of professional practice * * *.'' \12\ In 
addition, Congress provided that the Attorney General, through the 
DEA's Administrator, ``shall register practitioners * * * if the 
applicant is authorized to dispense * * * controlled substances under 
the laws of the State in which he practices.'' \13\ These two 
provisions are internally consistent and are unambiguous. They also 
support the core premise set forth in the Government's Motion: that 
upon suspension or revocation of his medical license in Kentucky, 
Respondent no longer meets the statutory definition of a 
``practitioner,'' which is a mandatory condition to continuing as a 
Registrant.\14\ This construction of statutory authority has been 
endorsed and applied by the Administration and by courts on appeal.\15\
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    \11\ 21 U.S.C. 824(a)(3).
    \12\ 21 U.S.C. 802(21).
    \13\ 21 U.S.C. 823(f).
    \14\ Government's Motion for Summary Disposition Jan. 8, 2013 at 
4.
    \15\ See Id.
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Facts

    Given this body of law, the material fact here, indeed the sole 
fact of consequence, is whether the Kentucky Medical Board has 
suspended Respondent's medical license. Where, as here, no material 
fact is in dispute, there is no need for an evidentiary hearing and 
summary disposition is appropriate.\16\ The sole question of fact 
before me can be addressed, and has been addressed, by stipulation. Our 
record includes a declaration under penalty of perjury \17\ by 
Stephanie Burkhart.\18\ Ms. Burkhart is the Lead Diversion Investigator 
associated with this case. In her declaration, Ms. Burkhart avers that 
the Kentucky Medical Board suspended Respondent's medical license on 
September 24, 2012.\19\ She further states that this license is 
currently suspended, and that Respondent is not authorized to prescribe 
or dispense controlled substances in the Commonwealth.\20\ (Although I 
note that, while the Government attributes Board action to that of the 
Florida Department of Health,\21\ its citation to Appendix B 
establishes that such action was by the Board in Kentucky, not 
Florida.)
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    \16\ See Michael G. Dolin, M.D., 65 FR 5661 (2000); see also 
Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom. Kirk v. 
Mullen, 749 F.2d 297 (6th Cir. 1984).
    \17\ See 28 U.S.C. 1746.
    \18\ Government's Motion for Summary Disposition Jan. 8, 2013 at 
Appendix A.
    \19\ Id. at 1.
    \20\ Id.
    \21\ Id. at 2.
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    Also accompanying the Government's Motion is a photocopy of the 
Commonwealth's Emergency Order of Suspension issued by Board of Medical 
Licensure.\22\ This document appears to confirm the factual contentions 
presented in D.I. Burkhart's Declaration, in that it declares it to be 
an Emergency Order and orders the suspension of Respondent's medical 
license, effective ``upon receipt by the licensee.'' \23\ There is a 
certificate of service accompanying the Board's Order, indicating that 
a copy was sent by certified mail on September 24, 2012.
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    \22\ Id. at Appendix B.
    \23\ Id. at 13-14.
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    In order to establish the factual predicate necessary to determine 
this issue, I issued a procedural order dated January 23, 2013, 
directing the Respondent to indicate whether the following four facts 
are in dispute:

    1. Respondent is registered with the Drug Enforcement 
Administration as a practitioner in Schedules II through V pursuant 
to DEA registration AS6213172, with a registered location of 7210 
Turfway Road, Suite B, Florence, Kentucky 41042. This registration 
expires by its terms on February 28, 2015.
    2. On September 24, 2012, the Kentucky Board of Medical 
Licensure, in case number 1433, issued an Emergency Order of 
Suspension, suspending the Respondent's license to practice medicine 
and prescribe controlled substances in Kentucky.
    3. The Order of Suspension described above is admitted as ALJ 
Exhibit 1.
    4. The Order of Suspension is currently in effect, and has been 
in effect continuously since the date Dr. Shearer received a copy of 
that Order.

    On January 31, 2013, I received Respondent's Response to this 
procedural order, in which he stipulated to these four statements as 
being true. Also noted in the procedural order was the fact that the 
record did not establish when the Kentucky Board's Emergency Order of 
Suspension was received by Respondent. The evidence otherwise 
establishes that, indeed, Respondent has received the Board's Order, 
and receipt is deemed to have been effective as of September 28, 2012.

Analysis

    In determining whether to grant the Government's motion for summary 
disposition, I am required to apply the principle of law that holds 
such a motion may be granted in an administrative proceeding if no 
material question of fact exists:

    It is settled law that when no fact question is involved or the 
facts are agreed, a plenary, adversary administrative proceeding 
involving evidence, cross-examination of witnesses, etc., is not 
obligatory--even though a pertinent statute prescribes a hearing. In 
such situations, the rationale is that Congress does not intend 
administrative agencies to perform meaningless tasks (citations 
omitted).\24\
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    \24\ NLRB v. International Assoc. of Bridge, 549 F.2d 634, 638 
(9th Cir. 1977) (quoting United States v. Consolidated Mines & 
Smelting Co., Ltd., 455 F.2d 432, 453 (9th Cir. 1971)).


[[Page 19012]]


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    In this context, I am further guided by prior decisions before the 
DEA involving certificate holders whose state medical licenses have 
been revoked or suspended. On the issue of whether an evidentiary 
hearing is required, ``it is well settled that when there is no 
question of material fact involved, there is no need for a plenary, 
administrative hearing.'' \25\ Under this guidance, the Government's 
motion must be sustained unless a material fact question has been 
presented.
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    \25\ See Michael G. Dolin, M.D., 65 FR 5661 (2000); Jesus R. 
Juarez, M.D., 62 FR 14945 (1997); see also Philip E. Kirk, M.D., 48 
FR 32887 (1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th 
Cir. 1984).
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    The Government argues that the sole determinative fact now before 
me is that Respondent's medical license has been suspended by the 
Kentucky Medical Board. I agree. In order for a medical doctor to be 
authorized to administer controlled substances, he or she must meet the 
definition of ``practitioner'' as found in the Controlled Substances 
Act.\26\ Such a person must be ``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.'' \27\ Delegating to the Attorney 
General the authority to determine who may or may not be registered to 
perform these duties, Congress permitted such registration only ``if 
the applicant is authorized to dispense * * * controlled substances 
under the laws of the state in which he practices.'' \28\
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    \26\ 21 U.S.C. 802(21).
    \27\ Id.
    \28\ 21 U.S.C. 823(f).
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    These two sources of authority complement the provision that is 
triggered when a registrant loses his or her state license to practice: 
where, as here, a registrant ``has had his State license or 
registration suspended, revoked, or denied by competent State authority 
and is no longer authorized by State law to engage in the * * * 
dispensing of controlled substances,'' \29\ the registrant is no longer 
entitled to registration by the DEA. As cited by the Government in its 
Motion for Summary Disposition, there is substantial authority both 
through agency precedent and through decisions of courts in review of 
that precedent, holding that a petitioner's DEA registration is 
dependent upon his or her license to practice medicine.\30\ Under the 
doctrine before me, the Government meets its burden of establishing 
grounds to revoke a registration upon sufficient proof establishing the 
registrant's medical license has been suspended or revoked. That proof 
is in the record before me, and it warrants the summary revocation of 
Respondent's DEA certificate.
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    \29\ 21 U.S.C. 824(a)(3).
    \30\ Government's Motion for Summary Disposition Jan. 8, 2013 at 
4, and cases cited therein.
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    I am mindful of the arguments raised by Respondent in his Reply to 
the Government's Motion for Summary Disposition. At the outset, 
Respondent noted that he has not yet had an opportunity to present 
evidence to the Kentucky Medical Board, and urges that action by the 
DEA to revoke his registration wait until that process has run its 
course.\31\ Emphasizing the temporary nature of the Medical Board's 
emergency order, Respondent asserts that the Board acted on the basis 
of evidence which, according to Respondent, is of questionable 
weight.\32\ Beyond the concerns raised about not having been permitted 
to challenge this evidence and about the accuracy or sufficiency of the 
evidence, Respondent criticizes the DEA investigation and complains 
about its undue influence on the Medical Board, all occurring without 
benefit of a hearing.\33\
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    \31\ Reply to the Government's Motion for Summary Disposition 
Jan. 22, 2013 at 1.
    \32\ Id. at 2.
    \33\ Id.
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    Some care should be taken to assure the parties that the actions 
taken in this administrative proceeding conform to constitutional 
requirements. Although he cites no authority in support of his claim, I 
have examined the parties' contentions with an eye towards ensuring all 
tenets of due process have been adhered to. There is, however, no 
authority for me to evaluate the facts that underlie Respondent's 
contentions. Those contentions are summarized in his Reply to the 
Government's Motion for Summary Disposition. These generally describe 
his meritorious service as a physician and the extenuating 
circumstances that may have led to adverse outcomes for some of his 
patients.\34\ While the details of these circumstances may well be of 
interest to the Kentucky Medical Board, the facts or allegations 
presented in his Reply are not material in the administrative 
proceedings now before the DEA. In the proceedings now before me, the 
only material question is answered by the stipulation that establishes 
the suspension of Respondent's license. Further, and as is sufficiently 
set forth in the Government's Motion for Summary Disposition, 
revocation of the DEA certificate 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.'' \35\
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    \34\ Id. at 3-9 and 10-17.
    \35\ Government's Motion for Summary Disposition Jan. 8, 2013 at 
4 (quoting Kamal Tiwari, M.D., 76 FR 71604, 71606 (2011)).
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Conclusion, Order, and Recommendation

    I find there is no genuine dispute regarding the action taken by 
the Kentucky Medical Board, and that because of that action the 
Respondent's medical license in Kentucky has been and remains 
suspended. I find no other material facts at issue, for the reasons set 
forth in the Government's Motion for Summary Disposition. Accordingly, 
I grant the Government's Motion for Summary Disposition.
    Upon this finding, I order that this case be forwarded to the 
Deputy Assistant Administrator for final disposition. I recommend the 
Respondent's DEA Certificate of Registration, Number AS6213172, be 
revoked.

    Dated: February 4, 2013.
Christopher B. Mcneil,
 Administrative Law Judge.
[FR Doc. 2013-07194 Filed 3-27-13; 8:45 am]
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