[Federal Register Volume 81, Number 218 (Thursday, November 10, 2016)]
[Notices]
[Pages 79051-79052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27116]



[[Page 79051]]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 16-26]


Thomas Horiagon, M.D.; Decision and Order

    On June 9, 2016, the Deputy Assistant Administrator, of the then 
Office of Diversion Control, issued an Order to Show Cause to Thomas 
Horiagon, M.D. (Respondent), of Highlands Ranch, Colorado. The Show 
Cause Order proposed the revocation of Respondent's DEA Certificate of 
Registration No. BH2378025, pursuant to which he is authorized to 
dispense controlled substances in schedules II through V as a 
practitioner, on the ground that he does ``not have authority to handle 
controlled substances in . . . Colorado, the [S]tate in which [he is] 
registered with the DEA.'' Show Cause Order, at 1 (citing 21 U.S.C. 
824(a)(3)). As the specific factual basis for the action, the Order 
alleged that effective March 10, 2016, the Colorado Medical Board 
revoked Respondent's ``authority to practice medicine.'' Id.
    The Show Cause Order notified Respondent of his right to request a 
hearing on the allegations or to submit a written statement of position 
in lieu of a hearing, the procedure for electing either option, and the 
consequence for failing to elect either option. Id. at 2 (citing 21 CFR 
1301.43). In addition, the Show Cause Order notified Respondent of his 
right under 21 U.S.C. 824(c)(2)(C) to submit a corrective action plan 
(hereinafter, CAP) to the Deputy Assistant Administrator and the 
procedure for doing so. Id. at 2-3.
    On July 15, 2016, Respondent filed a letter with the Office of 
Administrative Law Judges pursuant to which he requested a hearing on 
the allegations of the Show Cause Order and submitted his CAP. Letter 
from Respondent to Hearing Clerk (July 11, 2016). In his letter, 
Respondent did not dispute that his Colorado medical license ``was 
revoked on March 10, 2016.'' Id. at 1. He maintained, however, that 
``this revocation was arbitrary and capricious, an abuse of discretion, 
and otherwise contrary to law'' and advised ``[t]he matter is now 
before the Colorado Court of Appeals.'' Id. Respondent also advised 
that he is a defendant in two criminal cases and requested ``the 
services of a federal public defender in this hearing.'' Id.
    As for his CAP, Respondent explained:

    My corrective action plan is quite simple. I hold a Wyoming 
medical license . . . and that license establishes my continued 
eligibility to hold DEA [Registration] #BH2378025. It is a simple 
matter for me to establish a business address in the State of 
Wyoming and I will do this as an alternative to proceeding with the 
administrative hearing process. However, by making this contingent 
offer, I am not waiving my right to a hearing at this time.

    Id.
    Upon receipt of Respondent's letter, the matter was placed on the 
docket of the Office of Administrative Law Judges and was assigned to 
ALJ Charles Wm. Dorman (hereinafter, ALJ). In an order issued the same 
day, the ALJ denied Respondent's request for a public defender, noting 
that there is ``no constitutional right to appointed counsel in these 
proceedings.'' Order for Evidence of Service and Briefing Schedule for 
Lack of State Authority Allegations, at 1 (citing Calvin Ramsey, 76 FR 
20034, 20035 (2011) (citing Goldberg v. Kelly, 397 U.S. 254, 270 
(1970))). The ALJ did, however, advise Respondent that he had the 
``right to be represented by an attorney at his own expense.'' Id. 
(citing 21 CFR 1316.50).
    The ALJ also ordered the Government to file evidence to support the 
allegation that Respondent lacks state authority to handle controlled 
substances and an accompanying motion for summary disposition no later 
than 2 p.m. on August 5, 2016. Id. And in the event the Government 
filed a motion for summary disposition, the ALJ ordered Respondent to 
file his reply by 2 p.m. on August 12, 2016.\1\ Id. at 1-2.
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    \1\ In the Order, the ALJ also directed the Government to file 
evidence establishing the date on which Respondent was served with 
the Show Cause Order and a motion to terminate the proceeding in the 
event Respondent's request was out of time. Order, at 1. In 
response, the Government provided an affidavit which establishes 
that the Show Cause Order was not delivered to Respondent until July 
8, 2016. Gov. Resp. to Order, at 1; id. at Appendix, at 1. Thus, 
Respondent's hearing request was not untimely.
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    On July 18, 2016, Government Counsel forwarded Respondent's CAP to 
the Deputy Assistant Administrator. However, on July 20, 2016, before 
the Deputy Assistant Administrator had ruled on Respondent's CAP (and 
more than two weeks before its motion for summary disposition was due), 
the Government moved for summary disposition. The Government supported 
its motion by providing a copy of the Colorado Medical Board's Final 
Board Order.\2\ Mot. for Summ. Disp., at Appendix B. The Board's Final 
Order establishes that Respondent's medical license was revoked 
effective March 10, 2016. Id. at 2.
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    \2\ The Government also submitted a copy of the Initial Decision 
issued by the state ALJ. Mot. for Summ. Disp., at Appendix B.
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    The next day, Respondent filed a brief opposing the Government's 
motion. Br. in Opp. to Gov. Mot. for Summ. Disp., at 1. Therein, 
Respondent did not dispute that his Colorado medical license has been 
revoked but reiterated that the ``revocation was arbitrary and 
capricious, an abuse of discretion, and otherwise contrary to law'' and 
the matter ``is now before the Colorado Court of Appeals.'' Id. 
Respondent argued, however, that because the Colorado Court of Appeals 
has not ruled on his claims, the DEA proceeding is not ripe for 
adjudication. Id. at 1-2. He also argued that ``[i]f the DEA is seeking 
to increase the collateral consequences of improper and illegal actions 
by a Colorado state agency when the underlying questions of fact and 
law have not been heard by a court of competent jurisdiction at the 
state level, then [DEA's] actions can also be claimed to be arbitrary 
and capricious, an abuse of discretion, and otherwise contrary to 
law.'' \3\ Id. at 2.
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    \3\ Respondent also argued that the reasoning of FTC v. Phoebe 
Putney Health System, Inc., 113 S.Ct. 1003 (2013), applies to this 
case because his case challenging the Colorado Board's revocation of 
his license ``concerns a claim of improper state actions to restrict 
the activities of a licensed professional.'' Opp. at 1. Respondent 
then argues that ``[t]he applicability of the reasoning in Phoebe 
Putney to this case [the DEA case] is claimed by [him] and judicial 
review is requested.'' Id.
     At issue in Phoebe Putney Health System was whether the 
acquisition of a hospital by a city-county hospital authority was 
exempt from being enjoined under section 5 of the Federal Trade 
Commission Action (15 U.S.C. 45) and section 7 of the Clayton Act 
(15 U.S.C. 18) because it would ``substantially reduce competition 
in the market for acute-care hospital services'' or whether the 
acquisition was immune from anti-trust liability under the state-
action immunity. See Parker v. Brown, 317 U.S. 341 (1943). In short, 
Phoebe Putney Health System has nothing to do with whether 
Respondent's registration should be revoked.
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    Respondent also asserted that he ``holds a medical license'' in 
Wyoming and that he ``has submitted a . . . corrective action plan 
consisting in part of a change in the [S]tate of DEA registration to 
Wyoming.'' Id. at 1. Respondent argued that ``[t]his issue should be 
remanded to the DEA for consideration of [his] corrective action 
plan.'' Id. at 2. He further argued that if a remand was not granted, 
he was entitled to a full hearing ``on the questions of fact and law in 
this case.'' Id. at 2.
    On July 25, 2016, the ALJ granted the Government's motion, finding 
it undisputed that ``Respondent does not currently have a Colorado 
medical license,'' and that Respondent conceded as much. Order Granting 
Summary Judgment and Recommended Rulings, Findings of Fact, Conclusions 
of Law, and Decision, at 3-4. The ALJ thus

[[Page 79052]]

found that ``it is undisputed that the Respondent lacks state 
authorization to handle controlled substances in Colorado,'' where he 
is registered. Id. at 3.
    The ALJ further rejected Respondent's contention that the case is 
not ripe because he is the subject of two pending criminal cases in 
Colorado. Id. As the ALJ explained, because Respondent's medical 
license has been revoked, the case was not dependent ``on future events 
that may not occur'' and ``present[s] a concrete case or controversy.'' 
Id. at 3-4 (citing Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 
568, 579 (1985); Texas v. United States, 523 U.S. 296, 300 (1998)). The 
ALJ further noted that ``these proceedings are independent from 
Colorado's criminal proceedings and any factual findings made therein'' 
and that `` `[i]t is not DEA's policy to stay proceedings . . . while 
registrants litigate in other forums.' '' Id. at 4 (quoting Newcare 
Home Health Servs., 72 FR 42126, 42127 n.2 (2007)) (other citations 
omitted). Finally, the ALJ rejected Respondent's argument that the 
Board's action in revoking his license ``was arbitrary [and] 
capricious, an abuse of discretion and contrary to law,'' as being a 
collateral attack on the state proceedings. Id. As the ALJ explained, 
``a registrant's challenges to the validity of a state action must be 
litigated in the forums provided by the state.'' Id. (citing Zhiwei 
Lin, 77 FR 18862, 18864 (2012); also citing Kristen Lee Raines, 81 FR 
14890, 14891-92 (2016)).
    The ALJ also declined to consider Respondent's CAP, reasoning that 
he ``does not have the statutory authority to evaluate it.'' Id. The 
ALJ further explained that ``[t]he Administrator will consider the 
Respondent's corrective action plan.'' Id. (citing 21 U.S.C. 
824(a)(3)).
    On August 3, 2016, the Deputy Assistant Administrator rejected 
Respondent's CAP. Letter from Deputy Assistant Administrator Louis J. 
Milione to Respondent. The Deputy Assistant Administrator further 
explained that he had ``determined [that] there is no potential 
modification of [it] that could or would alter [his] decision.'' Id.
    Neither party filed exceptions to the ALJ's decision. Thereafter, 
on August 23, 2016, the ALJ forwarded the recorded to me for Final 
Agency Action.
    Having considered the record in its entirety, I adopt the ALJ's 
factual finding that Respondent's medical license has been revoked and 
his legal conclusion that he does not hold authority under Colorado law 
to dispense controlled substances and is therefore not entitled to 
maintain his registration.\4\ I also adopt the ALJ's ruling that 
Respondent was not entitled to appointed counsel, his ruling rejecting 
Respondent's claim that this proceeding is not ripe for adjudication 
and his ruling rejecting Respondent's challenge to the lawfulness of 
the State Board proceedings.
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    \4\ I further find that Respondent's registration does not 
expire until October 31, 2017. See Mot. for Summ. Disp., at Appendix 
A.
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    As the ALJ explained, the Controlled Substances Act requires that a 
practitioner possess state authority to dispense controlled substances 
in order to maintain his registration. R.D. at 3; see also 21 U.S.C. 
802(21) (defining ``the term `practitioner' [to] mean[ ] a . . . 
physician . . . or other person 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''); 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.'').
    Because Congress has clearly mandated that a physician possess 
state authority in order to be deemed a practitioner under the Act, DEA 
has long held that revocation of a practitioner's registration is the 
appropriate sanction whenever he is no longer authorized to dispense 
controlled substances under the laws of the State in which he practices 
medicine. See Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978); 
see also Hooper v. Holder, 481 Fed. Appx. 826, 828 (4th Cir. 2012); 
Calvin Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); 
Bobby Watts, 53 FR 11919, 11920 (1988); see also 21 U.S.C. 824(a)(3). 
Thus, it is of no consequence that Respondent has sought judicial 
review of the Board's action. See Fiaz Afsal, 79 FR 61651, 61655 (2014) 
(citing Calvin Ramsey, 76 FR 20034, 20036 (2011) (citing Michael G. 
Dolin, 65 FR 5661, 5662 (2000))). Rather, ``[u]nder the CSA, all that 
matters is that Respondent is no longer currently authorized to 
dispense controlled substances in'' Colorado, the State in which he is 
registered. Afsal, 79 FR at 61655.
    As for Respondent's CAP, I conclude that there are adequate grounds 
for denying it. Specifically, while Respondent maintains that he holds 
a Wyoming medical license and this ``license establishes [his] 
continued eligibility to hold'' his registration, the online records of 
the Wyoming Board (of which I take official notice) show that this 
license has been suspended.\5\ Accordingly, Respondent is not eligible 
to be registered in Wyoming and I therefore reject his CAP. 21 U.S.C. 
802(21), 823(f).
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    \5\ Respondent may refute this finding by filing a properly 
supported motion with my Office no later than fifteen (15) calendar 
days from the date of this Order. See 5 U.S.C. 556(e).
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) and 
28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
BH2378025 issued to Thomas Horiagon, M.D., be, and it hereby is, 
revoked. I further order that any pending application of Thomas 
Horiagon, M.D., to renew or modify this registration, be, and it hereby 
is, denied. This Order is effective December 12, 2016.

    Dated: November 2, 2016.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2016-27116 Filed 11-9-16; 8:45 am]
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