2015-19119. Pedro E. Lopez, M.D.; Decision and Order

On March 20, 2015, Chief Administrative Law Judge (CALJ) John J. Mulrooney, II, issued the attached Recommended Decision. Neither party filed exceptions to the Recommended Decision.

Having reviewed the record in its entirety, I adopt the CALJ's findings of fact,^[1] conclusions of law, and recommended order. Accordingly, I will order that Respondent's DEA Certificate of Registration be revoked and that any pending applications to renew or modify his registration be denied.

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 BL2132049, issued to Pedro E. Lopez, M.D., be, and it hereby is, revoked. I further order that any pending application of Pedro E. Lopez, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective September 3, 2015.

Dated: July 27, 2015.

Chuck Rosenberg,

Acting Administrator.

Brian Bayly, Esq., for the Government.

Alan Rhine, 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 February 6, 2015, proposing to revoke the DEA Certificate of Registration (COR), Number BL2132049, of Pedro E. Lopez, 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 State of Illinois” as grounds for revocation of the Respondent's DEA registration. On March 6, 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 Respondent has instituted proceedings to restore his authority to handle controlled substances in Illinois.” Req. for Hrg. at 1.

Consistent with my direction, the parties have briefed the issues. On March 11, 2015, the Government filed a Motion for Summary Disposition and Evidence in Support of its Motion for Summary Disposition (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 State of Illinois, Department of Financial and Professional Regulation (IDFPR) suspended the Respondent's license to practice medicine, effective March 12, 2014, and that suspension order remains in effect. Id. Attached to the Government's Motion is the IDFPR Order dated March 12, 2014 suspending the Respondent's state Physician and Surgeon License No. 036.074815 on the grounds that the Respondent failed to comply with the provisions an Agreement of Care, Counseling and Treatment that he had entered into with IDFPR.^[2] Id., Attachment 1 at 1-2. Under the IDPFR Order, the Respondent's state license was indefinitely suspended for a minimum period of six months. Id., Attachment 1 at 2.

On March 20, 2015, the Respondent, through counsel, filed a reply styled “Response to the Government's Motion for Summary Disposition and Evidence in Support of its Motion for Summary Disposition” (Respondent's Reply). In his Reply, the Respondent alleges that he is in the process of seeking reinstatement of his medical license from the state of Illinois. Resp't Reply at 2. In opposing the Government's requested relief, the Respondent avers that inasmuch as he is currently not prescribing controlled substances, granting a hearing, or at least deferring adjudication until his state privileges are restored presents no cognizable danger to the public. Id. at 2-3.

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 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 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 Café, 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, 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, 74 FR 61370, 61375 (2009).^[3] “[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, 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).

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 IDFPR Order establishes, and the Respondent does not contest, that the Respondent is currently without authorization to handle controlled substances in Illinois, 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”).^[4] At this juncture, no genuine dispute exists over the fact that the Respondent lacks state authority to handle controlled substances in the state of Illinois. Because the Respondent lacks such state authority, both the plain language of applicable federal statutory provisions and Agency interpretive precedent dictate that the Respondent 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

DENY the Respondent's Request for Stay; and further

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

Dated: March 20, 2015.

JOHN J. MULROONEY, II,

Chief Administrative Law Judge.

Footnotes

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.

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, 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 § 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 § 824(a)(3) as mandating revocation upon suspension of a state license is not an unreasonable interpretation of the CSA.” Hooper v. Holder, 2012 WL 2020079, *2 (4th Cir. 2012) (unpublished).

2.  No objection to consideration of the Government's exhibit, or factual challenge to the matters asserted therein was asserted by the Respondent.

3.  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).

4.  Even assuming, arguendo, the possibility that the Respondent's state controlled substances privileges could be reinstated, summary disposition would still be warranted because “revocation is also appropriate when a state license has been suspended, but with the possibility of future reinstatement,” Rodriguez, 70 FR at 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).