[Federal Register Volume 80, Number 184 (Wednesday, September 23, 2015)]
[Notices]
[Pages 57391-57393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24128]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 15-25]


James Alvin Chaney, M.D.: Decision and Order

    On July 23, 2015, Chief Administrative Law Judge (CALJ) John J. 
Mulrooney, II, issued the attached Recommended Decision (cited as 
R.D.). Respondent filed Exceptions to the Recommended Decision.
    In his Recommended Decision, the CALJ found that on October 21, 
2014, the Commonwealth of Kentucky, Board of Medical Licensure, had 
issued Respondent an Emergency Order of Suspension against his medical 
license. R.D. at 2. The CALJ further found that on November 17, 2014, 
the Board issued a final order that affirmed the emergency order of 
suspension ``and that the suspension order remains in effect.'' Id. 
Noting that the Controlled Substances Act defines ``term `practitioner' 
[to] mean[ ] a physician . . . licensed, registered, or otherwise 
permitted, by . . . the jurisdiction in which he practices . . . to . . 
. dispense [or] administer . . . a controlled substance in the course 
of professional practice,'' id. at 3 (quoting 21 U.S.C. 802(21), as 
well as that the registration provision applicable to practitioners 
directs the Attorney General to ``register [a] practitioner[] . . . if 
the applicant is authorized to dispense . . . controlled substances 
under the laws of the State in which he practices,'' id. (quoting 21 
U.S.C. 823(f)), the CALJ then noted that the Agency ``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.'' Id. (collecting cases). Because there is no dispute 
that ``Respondent lacks state authority to handle controlled substances 
in'' Kentucky, the CALJ granted the Government's motion for summary 
disposition and recommended that Respondent's registration be 
revoked.\1\ Id. at 5.
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    \1\ While the Government alleged in the Order to Show Cause that 
Respondent's registration does not expire until August 31, 2016, 
Show Cause Order, at 1; and in his hearing request, Respondent 
states that he ``holds a medical license . . . and a DEA 
registration,'' Hearing Request, at 1; the Agency is still required 
to establish that it has jurisdiction to act. See Sharad C. Patel, 
80 FR 28693, 28694 n.3 (2015) (``Even in summary disposition 
proceedings which are based on a lack of state authority, the ALJ is 
obligated to make a finding establishing that the Agency has 
jurisdiction.''); see also 5 U.S.C. 706(2)(C) (directing reviewing 
courts ``to hold unlawful and set aside agency action, findings and 
conclusions found to be . . . in excess of statutory 
jurisdiction''). This generally requires the ALJ to make a finding 
either that a respondent retains an active registration or has 
submitted an application for registration.
     In the interest of conducting an expeditious review of this 
matter, I have taken official notice of Respondent's registration 
record with the Agency and find that his registration does not 
expire until August 31, 2016. See 5 U.S.C. 556(e); 21 CFR 
1316.59(e). However, in the future, where a recommended decision 
lacks the requisite finding, I will remand the matter for this 
purpose.
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    In his Exceptions, Respondent argues that Board's Emergency Order 
suspending his license ``is not a final order as it has been appealed 
and is currently being reviewed by the Kentucky Court of Appeals.'' 
Exceptions at 1. He argues that the CALJ's Recommended Decision is 
therefore ``based upon an order that is not final and consequently will 
constitute arbitrary and capricious action.'' Id. at 2. Finally, 
Respondent contends that ``[s]ummary judgment is improper because 
issues of fact exist concerning the enforceability of the temporary 
suspension of [his] medical license given its unconstitutionality.'' 
Id.
    I reject Respondent's contentions. Putting aside whether--in light 
of the state Hearing Officer's issuance of the ``Final Order Affirming 
The Emergency Order of Suspension''--Respondent has accurately 
described the procedural posture of the state licensing matter, based 
on the plain language of sections 802(21) and 823(f), this Agency has 
held repeatedly that ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a DEA 
registration ```is currently authorized to handle controlled substances 
in the [S]tate.''' James L. Hooper, 76 FR 71371, 71371 (2011) (quoting 
Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), pet. for rev.

[[Page 57392]]

denied, Hooper v. Holder, 481 Fed.Appx. 826 (4th Cir. 2012). Thus, it 
is of no consequence that the State has employed summary process in 
suspending Respondent's state license and that the Board's ``order 
remains subject to challenge in either [further] administrative or 
judicial proceedings.'' Patel, 80 FR at 28694; see also Gary Alfred 
Shearer, 78 FR 19009, 19012 (2013); Michael G. Dolin, 65 FR at 5661, 
5662 (2000).
    As for Respondent's contention that summary disposition is 
inappropriate ``because issues of fact exist concerning the 
enforceability of the temporary suspension'' order, the only fact that 
is material in this proceeding is whether Respondent ``is currently 
authorized to handle controlled substances'' by the State. Hooper, 76 
FR at 71371; cf. Sunil Bhasin, 72 FR 5082, 5083 (2007) (holding that a 
registrant cannot collaterally attack the results of a state 
administrative or criminal proceeding in a proceeding brought under 
section 304 (21 U.S.C. 824(a)). Accordingly, because the suspension 
order remains in effect, I adopt the Recommended Decision \2\ and will 
order that Respondent's registration be revoked.
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    \2\ Notwithstanding that the language of section 824(a) 
authorizes either the suspension or revocation of a registration 
upon the making of one of the five findings enumerated therein, see 
R.D. at 4 n.1, the Agency has consistently interpreted the CSA as 
mandating revocation where a practitioner's state authority has been 
suspended or revoked. As the Fourth Circuit has held, ``[b]ecause 
sections 823(f) and 802(21) make clear that a practitioner's 
registration is dependent upon the practitioner having state 
authority to dispense controlled substances, the [Administrator's] 
decision to construe section 824(a)(3) as mandating revocation upon 
suspension of a state license is not an unreasonable interpretation 
of the CSA.'' Hooper, 481 Fed.Appx. at 828.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 28 
CFR 0.100(b), I order that DEA Certificate of Registration BC3278492 
issued to James Alvin Chaney, M.D., be, and it hereby is, revoked. I 
further order that any application of James Alvin Chaney, 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\ For the same reasons that lead the Board to order the 
emergency suspension of Respondent's medical license (i.e., his 
indictment on various counts of the unlawful distribution of 
controlled substances), I find that the public interest necessitates 
that this Order be effective immediately. 21 CFR 1316.67.

    Dated: September 15, 2015.
Chuck Rosenberg,
Acting Administrator.
Brian Bayly, Esq., for the Government.
Lisa English Hinkle, Esq., for the Respondent.

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

    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 May 21, 2015, 
seeking to revoke the DEA Certificate of Registration (COR), Number 
BC3278492, of James Alvin Chaney, M.D. (Respondent), pursuant to 21 
U.S.C. 824(a)(3) and 21 U.S.C. 823(f), and deny any pending 
applications for renewal or modification of the COR, pursuant to 21 
U.S.C. 823(f). In the OSC, the Government alleges that the Respondent 
is, inter alia, without ``authority to handle controlled substances in 
the Commonwealth of Kentucky'' as grounds for revocation of the 
Respondent's DEA registration. On July 2, 2015, the Respondent, by 
counsel, filed a Request for Hearing in the above-captioned matter. The 
Request for Hearing stated that a hearing is appropriate because ``the 
review of [the Kentucky Board of Medical Licensure's] illegal 
suspension by emergency order of [the Respondent's] medical license is 
currently on appeal before the Kentucky Court of Appeals . . .'' and 
because ``any action concerning [the Respondent's DEA COR] . . . is 
premature . . . .'' Req. for Hrg. at 7.
    Consistent with my direction, the parties have briefed the issues. 
On July 9, 2015, the Government filed a Motion for Summary Disposition 
Based on Respondent's Lack of State Authorization to Handle Controlled 
Substances and Submission of Evidence in Support of Such Motion (Motion 
for Summary Disposition), seeking that this tribunal issue a 
Recommended Decision granting the Government's Motion on the ground 
that the Respondent is currently without state authority to handle 
controlled substances. Mot. for Summary Disp. at 1. According to the 
Government's Motion, the Commonwealth of Kentucky, Board of Medical 
Licensure (BML) suspended the Respondent's license to practice medicine 
effective October 21, 2014, and that suspension order remains in 
effect. Id. Attached to the Government's Motion is the BML Emergency 
Order of Suspension dated October 21, 2014 suspending the Respondent's 
state license No. 28914 on the grounds that there was probable cause to 
believe that the Respondent's practice constituted a danger to the 
health, welfare, and safety of his patients or the general public, as 
evidenced by the Respondent's indictments for crimes related to 
controlled substances. Id. at 1-2; Attachment 1 at 1-4. Also attached 
to the Government's Motion is the BML Final Order Affirming the 
Emergency Order of Suspension, dated November 17, 2014. Attachment 2 at 
17.
    On July 23, the Respondent, through counsel, filed a reply styled 
``Response to Government's Motion for Summary Judgment'' (Respondent's 
Reply). In his Reply, the Respondent alleges that his situation is 
distinguishable from Agency precedent mandating revocation for lack of 
state authority, Resp't Reply at 4-5, because the BML's suspension of 
his license was ``based on the [BML's] application of an incorrect rule 
of law and an unconstitutional regulation.'' Id. at 5. In opposing the 
Government's requested relief, the Respondent also avers that inasmuch 
as he is not currently practicing medicine or prescribing controlled 
substances, maintenance of his DEA COR constitutes no danger to the 
public, and that he ``should not be penalized'' by the DEA because his 
underlying federal criminal charges have not yet been resolved. Id. at 
8.
    In order to revoke a registrant's DEA registration, the DEA has the 
burden of proving that the requirements for revocation are satisfied. 
21 CFR 1301.44(e) (2015). Once the 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 
(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 FR 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. 802(21) (2012) (``[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 21 U.S.C. 823(f) (2012) (``The 
Attorney General shall register practitioners . . . if the applicant is 
authorized to dispense . . . controlled substances under the laws of 
the State

[[Page 57393]]

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, M.D., 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, M.D., 74 FR 61370, 61375 (2009).\1\ ``[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, M.D., 62 FR 12847 (1997). Additionally, Agency precedent has 
established that the existence of other proceedings in which the 
Respondent is involved is not a basis upon which to justify a stay of 
DEA administrative enforcement proceedings. Grider Drug #1 & Grider 
Drug #2, 77 FR 44069, 44104 n.97 (2012).
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    \1\ But see 21 U.S.C. 824(a)(3) (2012) (``A registration 
pursuant to section 823 of this title to manufacture, distribute, or 
dispense a controlled substance may be suspended or revoked by the 
Attorney General upon a finding that the registrant . . . has had 
his State license or registration suspended, revoked, or denied by 
competent State authority . . . .'') (emphasis added). Thus, 
notwithstanding the Agency's extensive body of internal precedent to 
the contrary, the plain language of section 824(a)(3) provides that 
loss of state authority constitutes a discretionary--not mandatory--
basis for revocation. However, inasmuch as the Agency precedent is 
clear on the matter, I am without authority or inclination to render 
a contrary interpretation.
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    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, the supplied 
BML Order establishes, and the Respondent does not contest, that the 
Respondent is currently without authorization to handle controlled 
substances in Kentucky, 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'').\2\ While not 
unsympathetic to the procedural issues raised by the Respondent in his 
state administrative proceedings, under current Agency precedent, the 
disposition of the Government's motion is wholly dependent upon a 
single issue: whether he continues to possess authority under state law 
to handle controlled substances--which he does not.
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    \2\ Even assuming, arguendo, the possibility that the 
Respondent's state controlled substances privileges could be 
reinstated, summary disposition would still be warranted because 
under Agency precedent ``revocation is also appropriate when a state 
license has been suspended, but with the possibility of future 
reinstatement,'' Rodriguez, 70 FR 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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    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 he 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.
    Accordingly, I hereby

    GRANT the Government's Motion for Summary Disposition; and further

    RECOMMEND that the Respondent's DEA registration be REVOKED 
forthwith \3\ and any pending applications for renewal be DENIED.

    \3\ While Agency precedent has held that a stay of DEA 
administrative proceedings is unlikely ever to be justified by the 
existence of ancillary proceedings (Grider Drug #1 & Grider Drug, 
#2, 77 FR 44069, 44104 n.97 (2012)), the Agency recently held 
revocation proceedings in abeyance at the post-hearing adjudication 
level for a lengthy period pending the resolution of criminal fraud 
charges and ``pending resolution of [a state] Board proceeding.'' 
Odette L. Campbell, M.D., 80 FR 41062, 41064 (2015). However, 
inasmuch as no stay was sought by the Respondent here, and good 
cause does not appear to exist in any event, the Government's motion 
will be granted and the case forwarded for a final order.
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Dated: July 23, 2015.
John J. Mulrooney II,
Chief Administrative Law Judge.

[FR Doc. 2015-24128 Filed 9-22-15; 8:45 am]
 BILLING CODE 4410-09-P