[Federal Register Volume 81, Number 12 (Wednesday, January 20, 2016)]
[Notices]
[Pages 3158-3159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00895]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 16-4]


Irwin August, D.O.; Decision and Order

    On November 6, 2015, Administrative Law Judge Charles Wm. Dorman 
(ALJ) issued the attached Recommended Decision (R.D.).\1\ Therein, the 
ALJ found that it is undisputed that Respondent's Connecticut 
Controlled Substance Registration is suspended, thus rendering him 
without authority to dispense controlled substances in Connecticut, the 
State in which he holds DEA Registration FA3033002. R.D. at 4. The ALJ 
also found that, by virtue of the Voluntary Agreement Not to Practice 
Medicine which Respondent entered into with the Massachusetts Board of 
Registration in Medicine, he is also currently without authority to 
dispense controlled substances in that State, where he holds DEA 
Registration BA4089721. Id. The ALJ thus granted the Government's 
Motion for Summary Disposition and recommended that I revoke both of 
Respondent's registrations and deny any pending applications.
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    \1\ All citations to the Recommended Decision are to the slip 
opinion issued by the ALJ.
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    Neither party filed exceptions to the Recommended Decision. Having 
reviewed the record, I adopt the ALJ's factual findings that 
Respondent's Connecticut Controlled Substance Registration has been 
suspended and that he has entered into the Voluntary Agreement with the 
Massachusetts Board. I also adopt the ALJ's legal conclusions that 
Respondent currently lacks authority to dispense controlled substances 
in each State.\2\ Accordingly, I will also adopt the ALJ's 
recommendation that I revoke both registrations and deny any pending 
applications to renew or modify each registration.
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    \2\ Respondent does not dispute the allegations that his DEA 
registration for his Massachusetts office does not expire until June 
30, 2018 and that his DEA registration for his Connecticut office 
does not expire until June 30, 2017. Resp.'s Affirmation in Opp., at 
1. Accordingly, I find that there is a live controversy with respect 
to both registrations.
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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 Certificates of 
Registration BA4089721 and FA3033002 issued to Irwin August, D.O., be, 
and they hereby are, revoked. I further order that any pending 
application of Irwin August, D.O., to renew or modify either of the 
above registrations, be, and it hereby is, denied. This Order is 
effective February 19, 2016.

    Dated: January 8, 2016.
Chuck Rosenberg,
Acting Administrator.

    W. Brian Bayly, Esq., for the Government.
    John J. Tierney, Esq., for the Respondent.

Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision

    Charles Wm. Dorman, Administrative Law Judge. The Deputy Assistant 
Administrator, Drug Enforcement Administration (``DEA'' or 
``Government''), issued an Order to Show Cause (``OSC''), seeking to 
revoke the DEA Certificates of Registration (``CORs'') of Irwin August, 
D.O. (``Respondent''), pursuant to 21 U.S.C. 824(a)(3), and deny any 
pending applications for renewal or modification of the CORs, pursuant 
to 21 U.S.C. 823(f). The Government alleged that the Respondent lacks 
state authority to handle controlled substances in Massachusetts and 
Connecticut, where DEA CORs Numbers BA4089721 and FA3033002, 
respectively, are registered. OSC at 2.
    The Respondent filed a timely Request for Hearing. Therein, the 
Respondent did not discuss the voluntary suspension of his 
Massachusetts license. However, he did allege that his Connecticut 
license may be restored because the Connecticut Commissioner of 
Consumer Affairs currently is reviewing the suspension of his license. 
Req. for Hr'g at 1.

[[Page 3159]]

    On October 27, 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''). Therein, the Government 
argued that the Respondent currently lacks state authority in 
Massachusetts and Connecticut to handle controlled substances. Mot. for 
Summ. Disp. at 3. First, the Government argued that the Respondent 
voluntarily agreed with the Massachusetts Board of Registration in 
Medicine (``Massachusetts Board'') to refrain from practicing medicine. 
Mot. for Summ. Disp. at 2. Attached to the Government's Motion is a 
copy of the Voluntary Agreement Not to Practice Medicine, entered into 
by the Respondent and the Massachusetts Board. Mot. for Summ. Disp. Ex. 
C, at 3-4. Second, the Government argued that the Respondent's 
Connecticut controlled substance registration was suspended because the 
Respondent made false statements in his renewal application. Mot. for 
Summ. Disp. at 2. Attached to the Government's Motion is the 
Connecticut Department of Consumer Protection's (``CDCP'') Order of 
Immediate Suspension of Controlled Substance Registration No. 22241. 
Mot. for Summ. Disp. Ex. D, at 1-2.
    On November 4, 2015, the Respondent's counsel filed an Affirmation 
in Opposition (``Respondent's Reply''). In his Reply, the Respondent's 
counsel asserted that, although the Respondent's Connecticut controlled 
substance registration currently is suspended, the CDCP conducted a 
hearing on September 17, 2015, regarding the suspension. Resp't Reply 
at 1-2. The Respondent's counsel asserted that the CDCP's final 
decision may change his registration status. Resp't Reply at 1-2, 7-8. 
The Respondent's counsel also asserted that, although the Respondent 
signed an agreement not to practice in Massachusetts, that agreement 
was predicated on the suspension of the Respondent's Rhode Island 
license, and that his Rhode Island license may be restored.\3\ Resp't 
Reply at 4-5, 7.
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    \3\ The Respondent asserts that he entered a voluntary agreement 
suspending his Massachusetts license because his Rhode Island 
license was suspended. Resp't Reply at 4-6. The Respondent also 
asserts that he requested a hearing on the suspension of his Rhode 
Island license, but has not challenged his Massachusetts license's 
suspension. Req. for Hr'g at 1; Resp't Reply at 7. This case, 
however, do not address any DEA registration to dispense controlled 
substances in Rhode Island. Thus, the status of the Respondent's 
Rhode Island license is not considered here. See Brian Earl 
Cressman, M.D., 78 FR 12091, 12092 n.2 (2013) (noting that ``a 
registrant's controlled substance privileges in a state outside the 
state of his DEA registration [are] irrelevant'') (citing Shahid 
Musud Siddiqui, M.D., 61 FR 14818 (1996)).
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    In revocation cases, the Government has the burden of proving that 
the requirements for revocation are satisfied. 21 CFR 1301.44(e) 
(2015). The Government also bears the initial burden of production. If 
the Government makes a prima facie case for revocation, the burden of 
production shifts to the registrant to show that revocation is 
inappropriate. Morall v. DEA, 412 F.3d 165, 174 (D.C. Cir. 2005).
    To maintain a DEA registration, a practitioner must be currently 
authorized to handle controlled substances in the jurisdiction where he 
practices. See 21 U.S.C. 802(21), 823(f) (2012). A registrant must 
possess state authority to dispense controlled substances in order to 
obtain and maintain DEA registration. E.g., Serenity Caf[eacute], 77 FR 
35027, 35028 (2012). Accordingly, the Controlled Substances Act 
``requires the revocation of a registration issued to a practitioner 
whose State license has been suspended or revoked.'' Scott Sandarg, 
D.M.D., 74 FR 17528, 17529 (2009).
    The Respondent argues that his COR should not be revoked because 
the CDCP may restore his Connecticut registration. However, ``it does 
not matter whether the suspension . . . [is] pending the outcome of a 
state proceeding. Rather, what matters--as DEA has repeatedly held--is 
whether Respondent is without authority under [state] law to dispense a 
controlled substance.'' Bourne Pharmacy, Inc., 72 FR 18273, 18274 
(2007); see also Grider Drug #1 & Grider Drug #2, 77 FR 44069, 44104 
n.97 (2012).
    The Respondent requested a stay of these proceedings until the CDCP 
reaches a final decision regarding his Connecticut registration. Req. 
for Hr'g at 2; Resp't Reply at 8. This Agency routinely denies 
``requests to stay the issuance of a final order of revocation . . . 
[because] a practitioner must be currently authorized to handle 
controlled substances . . . to maintain [his] DEA registration.'' 
Gregory F. Saric, M.D., 76 FR 16821 (2011) (emphasis added) (internal 
quotations and citations omitted). Because evaluating ``whether 
Respondent's state license will be re-instated is entirely 
speculative,'' id., ``[i]t is not DEA's policy to stay proceedings . . 
. while registrants litigate in other forums.'' Newcare Home Health 
Servs., 72 FR 42126, 42127 n.2 (2007) (citing Bourne Pharmacy, 72 FR at 
18273; Oakland Med. Pharmacy, 71 FR 50100 (2006); Kennard Kobrin, M.D., 
70 FR 33199 (2005)). Therefore, the Respondent's request to stay the 
proceedings pending the CDCP's final decision is denied.
    The disposition of the Government's Motion depends on whether the 
Respondent possesses state authority to handle controlled substances. 
The administrative record establishes that he does not. The CDCP's 
Order of Immediate Suspension of Controlled Substance Registration No. 
22241 establishes that his Connecticut controlled substances 
registration currently is suspended. Accordingly, the Respondent lacks 
authorization to handle controlled substances in Connecticut, where DEA 
COR Number FA3033002 is registered. Additionally, the Massachusetts 
Voluntary Agreement Not to Practice Medicine establishes that the 
Respondent currently lacks authorization to handle controlled 
substances in Massachusetts, where DEA COR Number BA4089721 is 
registered.
    Where there is no genuine question of fact, or there is agreement 
upon the material facts, a plenary, adversarial hearing is not 
required. See, e.g., Jesus R. Juarez, M.D., 62 FR 14945 (1997). Thus, 
summary disposition is warranted here because ``there is no factual 
dispute of substance.'' See Veg-Mix, Inc., 832 F.2d 601, 607 (D.C. Cir. 
1987). As of the date of this Recommended Decision, the Respondent 
currently lacks state authority to handle controlled substances in both 
Connecticut and Massachusetts; therefore, he cannot maintain his DEA 
registrations. The Government's Motion for Summary Disposition is 
granted, and it is recommended that the Respondent's DEA registrations 
be revoked and any pending applications for renewal be denied.

    Dated: November 6, 2015
Charles Wm. Dorman,
Administrative Law Judge.
[FR Doc. 2016-00895 Filed 1-19-16; 8:45 am]
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