[Federal Register Volume 80, Number 149 (Tuesday, August 4, 2015)]
[Notices]
[Pages 46322-46323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19122]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 15-15]


Adeline Davies Essien, M.D.; Decision and Order

    On March 25, 2015, Administrative Law Judge (ALJ) Christopher B. 
McNeil issued the attached Recommended Decision. Neither party filed 
exceptions to the Recommended Decision.
    Having reviewed the record in its entirety, I adopt the ALJ's 
findings of fact, conclusions of law and recommended order.\1\ 
Accordingly, 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.
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    \1\ I take official notice of the fact that, according to the 
registration records of the Agency, Respondent retains an active 
registration as of this date. Pursuant to 21 CFR 1316.59(e), 
Respondent may controvert this finding by filing a properly 
supported motion, no later than 10 days from the date of this Order.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a)(3), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration BE6969541, issued to Adeline Davies Essien, M.D., be, and 
it hereby is, revoked. I further order that any pending application of 
Adeline Davies Essien, M.D., to renew or modify her registration, be, 
and it hereby is, denied. This Order is effective September 3, 2015.

    Dated: July 27, 2015.
Chuck Rosenberg,
Acting Administrator.

Frank W. Mann, Esq., for the Government.
Thomas P. O'Connell, Esq., for the Respondent.

ORDER GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY DISPOSITION and 
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED DECISION OF THE 
ADMINISTRATIVE LAW JUDGE

    Administrative Law Judge Christopher B. McNeil. On January 21, 
2015, the Deputy Assistant Administrator of the Drug Enforcement 
Administration (DEA) issued an Order to Show Cause as to why the DEA 
should not revoke DEA Certificate of Registration Number BE6969541 
issued to Adeline Davies Essien, M.D., the Respondent in this matter. 
The Order seeks to revoke Respondent's registration pursuant to 21 
U.S.C. 824(a)(4) and 823(f), and to deny any pending applications for 
renewal or modification of such registration, and deny any applications 
for any new DEA registrations pursuant to 21 U.S.C. 823(f). As grounds 
for denial, the Government alleges that Respondent is ``currently 
without authority to handle controlled substances in the State of 
Illinois, the state in which [Respondent is] registered with the DEA.''
    On February 27, 2015, the DEA's Office of Administrative Law Judges 
received Respondent's written request for a hearing, which is dated 
February 26, 2015. Respondent stated that she objected to the 
Government's allegation regarding Respondent's authority to handle 
controlled substances. Respondent further stated that she ``does have 
authority to practice medicine and handle controlled substances.''
    On March 3, 2015, this Office issued an Order for Briefing on 
Allegations Concerning Respondent's Lack of State Authority, Order for 
Prehearing Statements, and Order Setting the Matter for Hearing. In the 
Order, I mandated that the parties provide briefs regarding the 
allegation that Respondent lacks state authority to handle controlled 
substances no later than 2:00 p.m. on March 17, 2015. In my Order, I 
also provided that responses to any briefs be submitted by no later 
than 2:00 p.m. on March 24, 2015. On March 17, 2015, I timely received 
the Government's Response to Order and Motion for Summary Disposition. 
According to the Government's motion,

[[Page 46323]]

Respondent is without authority to prescribe, administer, or dispense 
controlled substances in the State of Illinois. In its Exhibit One 
attachment, the Government provided evidence that the State of 
Illinois, the jurisdiction where she is licensed to practice medicine 
and where Respondent is registered with the DEA, considers her license 
``Not Renewed'' with an expiration date of July 31, 2014. Additionally, 
the Government in its Exhibit Two attachment provided a sworn 
declaration of Laura Forester, Chief of Medical Prosecutions for the 
Illinois Department of Financial and Professional Regulation, stating 
that Respondent is not currently authorized under Illinois law to 
handle controlled substances. Based on this status, the Government 
moved for a summary disposition of these proceedings as well as a stay 
of these proceedings pending resolution of its Motion for Summary 
Disposition. Finding good cause was shown, I granted an Order Staying 
Proceedings with the exception of the March 24, 2015 deadline for 
Respondent's response to the Government's Motion for Summary 
Disposition.
    Respondent filed a timely response to the Government's Motion for 
Summary Disposition on March 24, 2015. In her response, Respondent 
states that her Illinois State medical license case is pending appeal 
and is therefore not a final disposition. Respondent further attached 
an affidavit affirming that she has a case pending before the Illinois 
Administrative Law Court that is pending appeal. She also attached 
``Exhibit B'' containing a statement from Lillian Walanka, who is 
representing Respondent before the Illinois Administrative Law Court. 
Ms. Walanka again confirms that the case is pending final action by 
Illinois authorities. Ms. Walanka states that although Respondent filed 
a timely renewal application of her controlled substances license, her 
controlled substances license was not renewed pending a Notice of 
Intent to Refuse to Renew by authorities in Illinois.
    The substantial issue raised by the Government rests on an 
undisputed fact. The Government asserts that Respondent's DEA 
Certificate of Registration must be revoked because Respondent does not 
have an active controlled substance registration issued by the state in 
which she practices. Under DEA precedent, a practitioner's DEA 
Certificate of Registration for controlled substances must be summarily 
revoked if the applicant is not authorized to handle controlled 
substances in the state in which she maintains her DEA registration.\2\ 
Pursuant to 21 U.S.C. 823(f), only a ``practitioner'' may receive a DEA 
registration. Under 21 U.S.C. 802(21), a ``practitioner'' must be 
``licensed, registered, or otherwise permitted, by the United States or 
the jurisdiction in which he practices or does research, to distribute 
[or] dispense . . . controlled substance[s.]'' Given this statutory 
language, the DEA Administrator does not have the authority under the 
Controlled Substances Act to maintain a practitioner's registration if 
that practitioner is not authorized to dispense controlled 
substances.\3\
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    \2\ See 21 U.S.C. 801(21), 823(f), 824(a)(3); see also House of 
Medicine, 79 FR 4959, 4961 (DEA Jan. 30, 2014); Deanwood Pharmacy, 
68 FR 41662-01 (DEA July 14, 2003); Wayne D. Longmore, M.D., 77 FR 
67669-02 (DEA Nov. 13, 2012); Alan H. Olefsky, M.D., 72 FR 42127-01 
(DEA Aug. 1, 2007); Layfe Robert Anthony, M.D., 67 FR 15811 (DEA May 
20, 2002); George Thomas, PA-C, 64 FR 15811-02 (DEA Apr. 1, 1999); 
Shahid Musud Siddiqui, M.D., 61 FR 14818-02 (DEA April 4, 1996); 
Michael D. Lawton, M.D., 59 FR 17792-01 (DEA Apr. 14, 1994); Abraham 
A. Chaplan, M.D., 57 FR 55280-03 (DEA Nov. 24, 1992). See also Bio 
Diagnosis Int'l, 78 FR 39327-03, 39331 (DEA July 1, 2013) 
(distinguishing distributor applicants from other ``practitioners'' 
in the context of summary disposition analysis).
    \3\ See Abraham A. Chaplan, M.D., 57 FR 55280-03, 55280 (DEA 
Nov. 24, 1992), and cases cited therein. In Chaplan, DEA 
Administrator Robert C. Bonner adopts the ALJ's opinion that ``the 
DEA lacks statutory power to register a practitioner unless the 
practitioner holds state authority to handle controlled 
substances.'' Id.
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    Respondent correctly argues in her response that a final 
disposition has not been made regarding her controlled substance 
registration in Illinois's administrative proceedings. However, 
Respondent mischaracterizes the Government's Motion for Summary 
Disposition when alleging that the Government is arguing that a final 
disposition had occurred. The Government is only arguing that 
Respondent is currently without authority to handle controlled 
substances in Illinois. To emphasize this point, the Government cites 
to the case of Roger A. Rodriguez, M.D. to demonstrate that even a 
temporary suspension warrants revocation.\4\ As DEA Administrator 
Michele M. Leonhart previously stated in James L. Hooper, M.D., ``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.'' \5\ In Hooper, Administrator Leonhart 
concluded 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.'' \6\ In this case, 
Respondent's state controlled substance registration has been suspended 
for an indefinite duration. As detailed above, only a ``practitioner'' 
may receive a DEA registration. Therefore, I will recommend the 
revocation of Respondent's DEA registration.
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    \4\ Roger A. Rodriguez, M.D., 70 FR 33206, 33,207 (DEA June 7, 
2005).
    \5\ James L. Hooper, M.D.; Decision and Order, 76 FR 71371-01, 
71371 (DEA Nov. 17, 2011).
    \6\ Id. at 71372.
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Order Granting the Government's Motion for Summary Disposition and 
Recommendation

    I find there is no genuine dispute regarding whether Respondent is 
a ``practitioner'' as that term is defined by 21 U.S.C. 802(21), and 
that based on the record the Government has established that Respondent 
is not a practitioner and is not authorized to dispense controlled 
substances in the state in which she seeks to practice with a DEA 
Certificate of Registration. I find no other material facts at issue. 
Accordingly, I GRANT the Government's Motion for Summary Disposition.
    Upon this finding, I ORDER that this case be forwarded to the 
Administrator for final disposition and I recommended that Respondent's 
DEA Certificate of Registration should be REVOKED and any pending 
application for the renewal or modification of the same should be 
DENIED.

    Dated: March 25, 2015
Christopher B. McNeil,
Administrative Law Judge.
[FR Doc. 2015-19122 Filed 8-3-15; 8:45 am]
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