[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Notices]
[Pages 55635-55639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25287]
[[Page 55635]]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 17-34]
Arnold E. Feldman, M.D.; Decision and Order
On May 24, 2017, the Assistant Administrator, Diversion Control
Division, issued an Order to Show Cause to Arnold E. Feldman, M.D.
(Respondent), of Natchez, Mississippi. The Show Cause Order proposed
the revocation of Respondent's DEA Certificate of Registration No.
AF2451261, on the ground that he ``do[es] not have authority to handle
controlled substances in the State of Mississippi, the [S]tate in which
[he is] registered with . . . DEA.'' Show Cause Order, at 1.
As to the jurisdictional basis for the proceeding, the Show Cause
Order alleged that Respondent is ``registered as a practitioner in
[s]chedules II-V pursuant to [Registration No.] AF2451261 with a
registered address at 114 Jefferson Davis [Blvd.], Natchez,
Mississippi.'' Id. The Order also alleged that this registration does
not expire until ``September 30, 2018.'' Id.
As to the substantive ground for the proceeding, the Show Cause
Order alleged that Respondent's ``[a]uthority to prescribe and
administer controlled substances in the State of Mississippi was
suspended effective March 16, 2017.'' Id. The Order then asserted that
as a consequence of Respondent's ``lack of authority to handle
controlled substances in the State of Mississippi,'' his registration
is subject to revocation. Id.
The Show Cause Order notified Respondent of his right to request a
hearing on the allegation or to submit a written statement while
waiving his right to a hearing and the procedure for electing either
option. Id. at 2 (citing 21 CFR 1301.43). In addition, the Order
notified Respondent of his right to submit a corrective action plan
pursuant to 21 U.S.C. 824(c)(2)(C). Id. at 2-3.
On June 15, 2017, Respondent, through his counsel, requested a
hearing on the allegation. Letter from Respondent's Counsel to Hearing
Clerk, Office of Administrative Law Judges (June 15, 2017). The same
day, the matter was assigned to Administrative Law Judge Charles Wm.
Dorman (hereinafter, ALJ), who issued an order (also on June 15)
directing the Government to file evidence supporting the allegation by
June 28, 2017 at 2 p.m., as well any motion for summary disposition.
Briefing Schedule For Lack Of State Authority Allegations, at 1. The
ALJ's order also provided that if the Government moved for summary
disposition, Respondent's opposition was due by July 12, 2017 at 2 p.m.
Id.
On June 20, 2017, the Government filed its Motion for Summary
Disposition. As support for its motion, the Government provided, inter
alia: (1) A copy of Respondent's registration; (2) the Determination of
the Mississippi State Board of Medical Licensure (Mar. 16, 2017) which
ordered the suspension of his medical license ``to run concurrently''
with the suspension of his Louisiana medical license that was imposed
by the Louisiana Board of Medical Examiners' Order of August 15, 2016;
\1\ and (3) a Declaration of a Diversion Investigator. Mot. for Summ.
Disp., Appendices A, B, C. In its motion, the Government argued that it
was undisputed that Respondent's Mississippi medical license is
suspended and that because ``Respondent no longer meets the statutory
definition of a practitioner'' and ``possession of authority to
dispense controlled substances under the laws of the State in which a
practitioner engages in professional practice is a fundamental
condition for both obtaining and maintaining a practitioner's
registration,'' the revocation of Respondent's registration for his
Mississippi office is warranted. Mot. for Summ. Disp., at 3-4.
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\1\ The Government also included various other documents from
the Mississippi Board proceeding, including an Order of Continuance,
an Order of Temporary Action Pending Hearing, a Summons issued to
Respondent, an Affidavit of a Board Investigator, and a copy of the
Louisiana Board's Decision and Order which was an exhibit in the
Mississippi Board proceeding. See generally Mot. for Summ. Disp., at
Appendix B. Based on the suspension of his Louisiana medical
license, on August 14, 2017, the former Acting Administration
revoked Respondent's DEA registration for his practice in Baton
Rouge, Louisiana. See Arnold E. Feldman, 82 FR 39614, 39618 (2017).
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On July 10, 2017, Respondent filed his Reply to the Government's
Motion. Therein, ``Respondent acknowledge[d] that his license to
practice medicine in . . . Mississippi has been suspended in accordance
with the . . . Mississippi State Board of Medical Licensure's Order.''
Resp. Reply, at 1. Respondent contended, however, ``that there are
material questions of fact and law that require resolution in a
plenary, evidentiary proceeding.'' Id.
According to Respondent, these issues are that he possesses ``an
active and unrestricted license to practice medicine in'' Alabama and
``a full and unrestricted Alabama Controlled Substance Certificate.''
Id. at 2. Respondent argued that ``none of the cases cited by the
Government'' address the situation ``where a physician has lost
authority to practice in one state, while retaining unrestricted
authority in another.'' Id. at 3. He also argued that the Agency's
longstanding rule that a practitioner must possess authority under the
laws of the State in which he engages in professional practice ``is
based on the indiscriminate intermingling of'' 21 U.S.C. 823 and 824,
``each of which deals with different aspects of the control and
enforcement authority to dispense controlled substances.'' Id. He
further contended that while section 823 mandates that the Attorney
General ``register the applicant'' if he ``is authorized to dispense
controlled substances under the laws of the State in which he
practices,'' ``[t]he term `practitioner' does not appear in'' section
824 and the latter provision ``does not speak to a physician's
authorization to practice or dispense under the laws of the state in
which the registrant practices.'' Id. at 4.
In Respondent's view, section 824 authorizes revocation ``only if
the registrant is no longer authorized by State law to engage in the
dispensing of controlled substances [under] any state law.'' Id. at 5.
He also maintained that ``[t]he fact that Congress employed the term
`practitioner' in'' section 823(f) but not in section 824 ``is a clear
indication that it did not intend to authorize revocation or suspension
of a [registration] where a registrant has continued to maintain
authority to practice and dispense under the laws of any state.'' Id.;
see also id. at 5 & n.14 (``Where Congress includes particular language
in one section of a statute but omits it in another . . . it is
generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.'') (quoting Keene Corp. v United
States, 508 U.S. 200, 208 (1993) (other citation omitted)).
Finally, Respondent contended that ``[t]he Government, and the
cases cited by it, indiscriminately (and erroneously) intermingle''
sections 823 and 824, and this intermingling along with ``its
misinterpretation of 21 U.S.C. 824(a)(3) amount to a violation of [his]
constitutional right to travel.'' Id. at 6-7. He argued that
``[t]heoretically, [he] should be able to pack up and remove himself
and his practice from Louisiana to . . . Alabama, where he is
authorized to practice medicine and dispense controlled substances.
But[] his constitutional right to do so is impaired by the Government's
misinterpretation of its authority to revoke'' his registration. Id. at
7.
On July 25, 2017, the ALJ granted the Government's Motion. The ALJ
found
[[Page 55636]]
that ``Respondent conceded in his Reply that his Mississippi medical
license is currently suspended'' and that ``it is undisputed that . . .
Respondent lacks state authorization to handle controlled substances in
Mississippi, where [his Registration] Number AF2451261[] is
registered.'' ALJ's Recommended Decision (R.D.), at 6. Because
Respondent is registered in Mississippi, the ALJ found it irrelevant
that Respondent holds a license to practice medicine in Alabama. Id. at
4 (citing cases). The ALJ noted that ``both the CSA's `definition of
the term ``practitioner'' and the registration provision applicable to
practitioners make clear that a practitioner must be currently
authorized to dispense controlled substances by the State in which he
practices in order to obtain and maintain a registration,''' and that
the Agency's interpretation has been upheld by the Fourth Circuit. Id.
(quoting Rezik A. Saqer, 81 FR 22122, 22125 (2016) and citing Hooper v.
Holder, 481 Fed. App'x 826 (4th Cir. 2012)). The ALJ further reasoned
that ``Respondent's analysis is counter to the way the DEA has
interpreted the CSA for nearly forty years.'' Id. at 5 (citing Saqer,
81 FR at 22126 (citing Frederick Marsh Blanton, 43 FR 27616 (1978))).
The ALJ also rejected Respondent's contention that the Agency's
interpretation impairs his constitutional right to travel. Id. at 5-6.
The ALJ noted that under DEA's regulation, `` `[a] separate
registration is required for each principal place of business.' '' Id.
at 5 (quoting 21 CFR 1301.12(a)). The ALJ also noted that in 2006, the
Agency issued a final rule which ``clarif[ied] that a practitioner must
obtain a separate DEA registration for each [S]tate in which he or she
practices,'' and that `` `[j]ust as a license to practice medicine in
one State does not authorize a practitioner to practice in any other
State, a DEA registration based on a particular State's license cannot
authorize dispensing controlled substances in another State.' '' Id. at
6 (quoting Clarification of Registration Requirements for Individual
Practitioners, 71 FR 69478, 69479 (2006) and citing Joe W. Morgan, 78
FR 61961, 61965 n.13 (2013)). The ALJ thus explained that ``Respondent
is able to pack up and remove himself and his practice from
[Mississippi] to Alabama--he just cannot dispense or prescribe
controlled substances there unless he first obtains a separate DEA
registration for his Alabama location in accordance with 21 CFR
1301.12(a).'' Id. The ALJ thus recommended that I revoke Respondent's
registration. Id. at 7.
Neither party filed Exceptions to the ALJ's Recommended Decision.
Thereafter, on August 22, 2017, the ALJ forwarded the record to me for
Final Agency Action.\2\
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\2\ Subsequent to the ALJ's issuance of his Recommended Order,
Respondent has not filed a motion based on newly discovered evidence
to the effect that his state licensed has been restored.
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Having considered the record, I reject Respondent's various
contentions and adopt the ALJ's Recommended Decision. I will therefore
also adopt the ALJ's recommendation that I revoke Respondent's
registration. I make the following findings.
Findings of Fact
Respondent is the holder of DEA Certificate of Registration No.
AF2451261, pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner, at the
registered address of: Southwest MS Anesthesia PA, 114 Jefferson Davis
Blvd., Natchez, Mississippi. Mot. for Summ. Disp., Appendix A. This
registration does not expire until September 30, 2018. Id.
Respondent also holds a medical license issued by the Mississippi
State Board of Medical Licensure. See Mot. for Summ. Disp., Appendix B,
Determination and Order, at 2. However, on March 16, 2017, the Board
issued a Determination and Order which suspended his medical license
for a period ``to run concurrently with'' the suspension of his
Louisiana medical license, ``that is, until October 14, 2018, at which
time [he] shall petition the Board for removal of the suspension''; the
Mississippi Board's Order was effective on April 17, 2017. Id. at 4.
Accordingly, I find that Respondent currently lacks authority to
dispense controlled substances under the laws of the State of
Mississippi.
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized
to suspend or revoke a registration issued under section 823 of the
Controlled Substances Act (CSA), ``upon a finding that the registrant .
. . has had his State license . . . suspended [or] revoked . . . by
competent State authority and is no longer authorized by State law to
engage in the . . . dispensing of controlled substances.'' With respect
to a practitioner, DEA has long held that the possession of authority
to dispense controlled substances under the laws of the State in which
a practitioner engages in professional practice is a fundamental
condition for obtaining and maintaining a practitioner's registration.
See, e.g., James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied,
481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, 43 FR
27616 (1978).
Respondent acknowledges that the Agency's precedents ``do indeed
reveal a consistent [and in his view] uncritical repetition of th[is]
claim, to an extent . . . that the proposition has come to attain near
sacrosanct status.'' Resp. Reply, at 3. Before the ALJ, he contended
that the Agency's rule ``is based on the indiscriminate intermingling
of'' the registration requirements of section 823 and the suspension/
revocation authority of section 824. Id. He also argued that because
``the term `practitioner' is employed solely in 21 U.S.C. 823'' and
``does not appear in section 824'' this ``is a clear indication that
[Congress] did not intend to authorize an automatic, summary revocation
. . . where a registrant has continued to maintain authority to
practice and dispense under the laws of any state.'' Id. at 4.
Respondent is mistaken. As the Agency has repeatedly noted, the
Agency's rule actually derives from the text of section 802(21), which
defines the term ``practitioner,'' and section 823(f), which sets forth
the requirements for obtaining a practitioner's registration. Notably,
in section 802(21), Congress defined ``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.'' 21 U.S.C. 802(21).
The text of this provision makes clear that a physician is not a
practitioner within the meaning of the CSA if he is not ``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.
To the same effect, Congress, in setting the requirements for
obtaining a practitioner's registration, directed that ``[t]he Attorney
General shall register practitioners . . . if the applicant is
authorized to dispense . . . controlled substances under the laws of
the State in which he practices.'' 21 U.S.C. 823(f). Thus, based on
these provisions, the Agency held nearly 40 years ago that ``[s]tate
authorization to dispense or otherwise handle controlled substances is
a prerequisite to the issuance and maintenance of a Federal controlled
substances registration.'' Blanton, 43 FR
[[Page 55637]]
at 27617 (revoking physician's registration based on one-year
suspension of his state license) (emphasis added).
As the ALJ recognized, the CSA also provides that ``[a] separate
registration shall be required at each principal place of business or
professional practice where the applicant . . . dispenses controlled
substances.'' 21 U.S.C. 822(e).\3\ Based on this provision, the Agency
has further explained that, because the issuance of a registration is
dependent on a practitioner having authority to dispense controlled
substances under the laws of a particular State, a registration issued
for a location in one State cannot authorize the practitioner to engage
in controlled substance dispensing in another State. See Clarification
of Registration Requirements for Individual Practitioners, 71 FR 69478
(2006); 21 CFR 1301.12(a) & (b)(3). See also United States v. Moore,
423 U.S. 122, 140-41 (1975) (``Registration of physicians and other
practitioners is mandatory if the applicant is authorized to dispense
drugs . . . under the law of the State in which he practices. [21
U.S.C. ] Sec. 823(f). In the case of a physician, this scheme
contemplates that he is authorized by the State to practice medicine
and to dispense drugs in connection with his professional
practice.'').\4\
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\3\ See also 21 U.S.C. 822(b) (``Persons registered by the
Attorney General . . . to . . . dispense controlled substances . . .
are authorized to possess . . . or dispense such substances . . . to
the extent authorized by their registration and in conformity with
the other provisions of this subchapter.'').
\4\ While the CSA was amended in 1984 to provide the Agency with
authority to deny a practitioner's registration on public interest
grounds, the requirement that a practitioner be ``authorized to
dispense . . . controlled substances under the laws of the State in
which he practices,'' 21 U.S.C. 823(f), was unaltered by this
legislation.
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Notably, while Respondent holds a medical license in Alabama, the
registration at issue in this proceeding authorizes him to dispense
controlled substances only in the State of Mississippi. Moreover, the
Show Cause Order proposes only the revocation of this registration.\5\
Because Congress has clearly mandated that a practitioner possess state
authority in order to be deemed a practitioner under the Act, and
Respondent is no longer authorized to dispense controlled substances
under the laws of Mississippi, the State of the registration at issue
here, revocation of this registration is the appropriate sanction. See,
e.g., Hooper, 76 FR at 71371-72; Sheran Arden Yeates, 71 FR 39130,
39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby
Watts, 53 FR 11919, 11920 (1988); Blanton, 43 FR at 27616.
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\5\ There is no evidence in the record as to whether Respondent
holds a DEA registration in Alabama. Nor does this matter, because
the Government proposes only the revocation of his Mississippi
registration.
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As noted above, Respondent contends that Congress' use of the word
``registrant'' rather the word ``practitioner'' in section 824 ``is a
clear indication that it did not intend to authorize an automatic
revocation of a [registration] where a registrant has continued to
maintain authority to practice and dispense under the laws of any
state.'' Resp. Reply, at 5. A practitioner is, however, a particular
category of registrant and thus falls within section 824(a). Given the
provisions of section 802(21) and 823(f), it is not clear why Congress
needed to use the word ``practitioner'' in section 824(a) to authorize
the Agency to effectuate the policy expressed by sections 802(21) and
823(f). Moreover, Respondent ignores that there is a good reason for
why Congress used different language in sections 823(f) and 824(a) to
describe the class of persons who are subject to each provision, and
this reason provides no support for Respondent's contention.
Section 823(f) is specifically applicable to those applicants
seeking registration as a practitioner, which is just one of eight
different categories of registration under the CSA. See generally 21
U.S.C. 823. By contrast, section 824(a), which authorizes the
imposition of sanctions against a registrant based on any one of five
findings, is applicable to all categories of registrants under the CSA,
including Respondent. See, e.g., James L. Hooper, 76 FR 71371 (2011),
pet. for rev. denied Hooper v. Holder, 481 Fed. Appx. 826, 829 (4th
Cir. 2012).
As explained above, the Agency's rule that revocation is warranted
whenever a practitioner is no longer authorized to dispense controlled
substances under the laws of the State in which he engages in
professional practice is derived from the specific provisions of the
Act which define the term ``practitioner'' and set forth the
registration requirements which are specifically applicable to
practitioners.\6\ Hooper, 76 FR at 71371-72. Indeed, were I to adopt
Respondent's view, he would be allowed to maintain his registration
even though his lack of state authority bars him from obtaining a
registration in Mississippi in the first place. 21 U.S.C. 823(f).
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\6\ Section 824(a)(3) grants authority applicable to all
categories of DEA registrants (and not only practitioners) as well
as each of the enumerated findings. As explained in Hooper, this
general grant of authority in imposing a sanction must be reconciled
with the CSA's specific provisions which mandate that a practitioner
hold authority under state law in order to obtain and maintain a DEA
registration. 76 FR, at 71371-72 (quoting Gozlon-Peretz v. United
States, 498 U.S. 395, 407 (1991) (``A specific provision controls
over one of more general application.'') and Bloate v. United
States, 130 S.Ct. 1345, 1354 (2010) (quoting D. Ginsberg & Sons,
Inc., v. Popkin, 285 U.S. 204, 208 (1932) (``General language of a
statutory provision, although broad enough to include it, will not
be held to apply to a matter specifically dealt with in another part
of the same enactment.'')).
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Moreover, under DEA regulations, a practitioner's registration is
good for a period of three years, after which a practitioner must
submit a renewal application. Yet that renewal application remains
subject to section 823(f), which requires that ``the applicant is
authorized to dispense . . . controlled substances under the laws of
the State in which he practices.'' Respondent's view leads to the
illogical result that a practitioner would need to hold state authority
to obtain his initial registration and any subsequent renewal of the
registration, but would not need to hold state authority during the
intervening period between the granting of his initial application and
the granting of his renewal application.
I reject Respondent's contention and adhere to the Agency's
longstanding and consistent interpretation of the Act, which has been
affirmed by two courts of appeals. See Hooper v. Holder, 481 Fed. Appx.
at 828; Maynard v. DEA, 117 Fed. Appx. 941, 945 (5th Cir. 2004). As the
Fourth Circuit explained in Hooper, in rejecting the practitioner's
contention that the Agency's revocation of his registration ignored the
discretion granted by section 824 and read the suspension option out of
the statute:
We find Hooper's contention unconvincing. Section 824(a) does
state that the [Agency] may ``suspend or revoke'' a registration,
but the statute provides for this sanction in five different
circumstances, only one of which is loss of a State license. Because
Sec. 823(f) and Sec. 802(21) make clear that a practitioner's
registration is dependent upon the practitioner having state
authority to dispense controlled substances, the [Agency's] decision
to construe Sec. 824(a)(3) as mandating revocation upon suspension
of a state license is not an unreasonable interpretation of the CSA.
The [Agency's] decision does not ``read[ ] the suspension option''
out of the statute, because that option may still be available for
the other circumstances enumerated in Sec. 824(a).
481 Fed. Appx., at 828. See also Maynard, 117 Fed. Appx. at 945 (5th
Cir. 2004) (upholding revocation of DEA registration after Texas DPS
summarily suspended practitioner's controlled substance registration,
noting that the Agency ``has construed the CSA to
[[Page 55638]]
require revocation when a registrant no longer possesses valid state
authority to handle controlled substances''; ``We agree with [the]
argument that it may have been arbitrary and capricious had the DEA
failed to revoke [the physician's] registration under the
circumstances.'').
In his Reply to the Government's Motion, Respondent made an
additional argument beyond that made in Hooper. He contended that
``[it] is noteworthy that [section] 824(a) . . . employs the word `may'
in authorizing the Attorney General to revoke or suspend a
registration, when among other factors, the registrant is no longer
authorized by State law to engage in the dispensing of controlled
substances.'' Resp. Reply, at 6. In Respondent's view, ``under
[section] 824(a), the loss of state authority is only one of several
factors that may result in suspension or revocation of a practitioner's
DEA registration.'' Id. He maintained that ``[t]he correct
interpretation is that [section] 802(21) and [section] 823(f) require
state authority in order for the Administrator to grant an application
for registration, but [section] 824(a)(3) only renders a loss of state
authority a discretionary factor in determining whether to suspend or
revoke an existing registration.'' Id. Based on his view that the loss
of state authority is simply a discretionary factor, Respondent
suggests that the use of summary disposition to resolve this matter is
improper. Id.
Respondent, however, cites no authority for his contention that the
various grounds set forth in section 824(a) pursuant to which the
Agency is authorized to suspend or revoke a registration are merely
``discretionary factors'' in the same manner as are the public interest
factors of section 823. Indeed, his argument is refuted by the texts of
section 823(f) and 824(a) and the history of the CSA.
Notably, section 823(f) instructs that ``[i]n determining the
public interest, the following factors shall be considered'' and then
lists the five factors. 21 U.S.C. 823(f). By contrast, section 824(a)
makes no reference to ``factors.'' Rather, the provision begins with
the word ``Grounds'' and then states that ``[a] registration pursuant
to section 823 of this title . . . may be suspended or revoked by the
Attorney General upon a finding that'' one of the five different
grounds apply to the registrant.\7\ Id. Sec. 824(a).
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\7\ As noted above, Respondent invokes the canon of statutory
construction that ``[w]here Congress includes particular language in
one section of a statute but omits it in another . . . , it is
generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion''; he argues that it is
significant that while Congress used the word ``practitioner'' in
section 823, it used the word ``registrant'' in section 824(a).
Resp.'s Reply, at 5 & n.14 (quoting Keene Corp., 508 U.S. at 208
(other citation omitted)). Contrary to Respondent's contention, the
correct comparison is between the language of section 823(f), which
states that ``[i]n determining the public interest, the following
factors shall be considered,'' and the language of section 824(a),
which authorizes the Agency to suspend or revoke a registration upon
making one of the five enumerated ``finding[s].''
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Had Congress intended that the various findings set forth in
section 824(a) be treated as ``discretionary factors,'' it would have
done so by using language similar to that it used in section 823(f).
See Jama v. ICE, 543 U.S. 335, 341 (2005) (``We do not lightly assume
that Congress has omitted from its adopted text requirements that it
nonetheless intends to apply, and our reluctance is even greater when
Congress has shown elsewhere in the same statute that it knows how to
make such a requirement manifest.'').
Rather, the findings enumerated in section 824(a) are grants of
authority, each of which provides an independent and adequate ground to
impose a sanction on a registrant. See Alfred S. Santucci, 67 FR 68688
(2002) (``Loss of state authority is an independent ground to revoke a
practitioner's registration under 21 U.S.C. 824(a)(3).''); VI Pharmacy,
Rushdi Z. Salem, 69 FR 5584, 5585 (2004) (``Pursuant to 21 U.S.C.
824(a)(1), falsification of a DEA application constitutes independent
grounds to revoke a registration.''); Lazaro Guerra, 68 FR 15226, 15227
(2003) (``mandatory exclusion from participation in the Medicare
program pursuant to 42 U.S.C. 1320a-7(a) . . . is an independent ground
for revoking a DEA registration'' (citing 21 U.S.C. 824(a)(5)). See
also Richard B. Lynch, Jr., 50 FR 7844, 7845 (1985) (Agency made
findings under section 824(a)(1), 824(a)(2), and 824(a)(3); ``The
Administrator concludes that there are three independent statutory
grounds for denial of the subject application.'').
The Agency's interpretation is buttressed by the CSA's legislative
history. As originally enacted, the CSA granted the Attorney General
authority to suspend or revoke a registration:
Upon a finding that the registrant--
(1) has materially falsified any application filed pursuant to
or required by this title [the CSA] or title III [the Controlled
Substance Import Export Act (CSIEA), 21 U.S.C. 951-971];
(2) has been convicted of a felony under [the CSA or CSIEA] or
any other law of the United States, or of any State, relating to any
substance defined in this title as a controlled substance; or
(3) 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.
Public Law 91-513, Sec. 304, 84 Stat. 1255 (codified at 21 U.S.C.
824(a)).\8\
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\8\ Cf. Reiter v. Sonotone Corp., 442 U.S.C. 330, 339 (1979)
(``Canons of construction ordinarily suggest that terms connected by
a disjunctive be given separate meanings, unless the context
dictates otherwise[.]'') (citing FCC v. Pacifica Foundation, 438
U.S. 726, 739-40 (1978)).
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Describing this provision, the House Report explained that
``[s]ubsection (a) of this section empowers the Attorney General to
revoke or suspend any registration issued under this title if it is
found that the holder has falsified his application, lost his State
license, or has been convicted of a felony violation relating to any
controlled substance.'' H. Rep. No. 91-1444 (1970), as reprinted in
1970 U.S.C.C.A.N. 4566, 4608-09. Absent from this statement is any
discussion that in determining the sanction, the Attorney General was
required to consider not only whether a registrant had lost his state
authority, but also whether he had also materially falsified his
application or had been convicted of a felony related to a controlled
substance.
Moreover, while in 1984, Congress amended the CSA by granting the
Attorney General authority to deny an application for a practitioner's
registration and to revoke an existing registration on public interest
grounds, it did so to increase the Agency's authority to respond to the
``[i]mproper diversion of controlled substances by practitioners,''
which Congress explained ``is one of the most serious aspects of the
drug abuse problem.'' H. Rep. No. 98-1030, at 266 (1984), as reprinted
in 1984 U.S.C.C.A.N. 3182, 3448. The House Report explained that
``effective Federal actions against practitioners has been severely
inhibited by the limited authority in current law to deny or revoke
practitioner registrations'' and that ``the current limited grounds for
revoking or denying a practitioner's registration have been cited as
contributing to the problem of diversion of dangerous drugs.'' Id.
Finding that ``the overly limited bases in current law for denial or
revocation of a practitioner's registration do not operate in the
public interest,'' Congress amended section 823(f) ``to expand the
authority of the Attorney General to deny a practitioner's registration
application'' based upon a finding ``that registration would be
`inconsistent with the public interest.''' Id. (emphasis added).
[[Page 55639]]
While Congress also amended section ``824(a) to add to the current
bases for denial, revocation, or suspension of registration a finding
that registration would be inconsistent with the public interest on the
grounds specified in [section] 823, which will include consideration of
the new factors added by'' the amendment, id. at 266-67, Congress did
not otherwise alter the text of section 824(a), which makes clear that
the various paragraphs of this provision are findings, each of which
provides an independent and adequate ground to support agency action
against a registration, and not discretionary factors to be considered
by the Agency. Indeed, Respondent points to nothing in the language of
section 824 or the CSA's legislative history to support his position,
which would fundamentally alter the scope of the Agency's authority
under section 824.
I therefore reject Respondent's contentions. Based on the ALJ's
finding that Respondent is not currently authorized to dispense
controlled substances in Mississippi, the State in which he holds the
DEA registration at issue in this proceeding, I will adopt the ALJ's
recommended order that I revoke his registration.
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well
as 28 CFR 0.100(b), I order that DEA Certificate of Registration No.
AF2451261 issued to Arnold E. Feldman, M.D., be, and it hereby is,
revoked. This Order is effective immediately.\9\
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\9\ While the Mississippi Board Order was based on the Louisiana
Board's Order, as noted in the former Acting Administrator's
Decision and Order which revoked Respondent's Louisiana
registration, the Louisiana Board found proved the sixth charge of
the Administrative Complaint in that proceeding, in that Respondent
violated state law by ``[p]rescribing, dispensing, or administering
legally controlled substances or any dependency-inducing medication
without legitimate medical justification thereof or in other than a
legal or legitimate manner.'' See 82 FR at 39618 n.8 (2017); see
also Mot. for Summ. Disp., Appendix B, at 22, 24 (Louisiana Board
Order at 12, 14). For the same reasons as those cited by the former
Acting Administrator, I find that the public interest necessitates
that this Order be effective immediately. See also 21 CFR 1316.67.
Dated: November 13, 2017.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2017-25287 Filed 11-21-17; 8:45 am]
BILLING CODE 4410-09-P