2011-8533. Calvin Ramsey, M.D.; Revocation of Registration

On December 18, 2009, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Calvin Ramsey, M.D. (Respondent), of Millington, Tennessee. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, AR7086689, as a practitioner, and the denial of any pending application to renew or modify the registration, on the ground that he does not “have authority to practice medicine or handle controlled substances in the State of Mississippi,” the State in which he is registered with DEA.^[1] Show Cause Order at 1 (citing 21 U.S.C. 823(f) and 824(a)(4)).

On January 8, 2010, Respondent, who is currently incarcerated at the Federal Correctional Institute Memphis Satellite Camp in Millington, Tennessee, requested a hearing on the allegations ^[2] and the matter was placed on the docket of the Agency's Administrative Law Judges (ALJs). Thereafter, on January 27, the ALJ ordered the Government “to provide evidence to support its allegation that Respondent lacks authority in the state in which he is registered with DEA” and set February 3, 2010 as the due date for any motion for summary disposition and a due date of February 17 for Respondent to file a reply. Order Directing Gov. to File Evidence Regarding Status of Resp.'s State Authority, at 1-2.

On January 29, 2010, the Government moved for summary disposition. Mot. for Summ. Disp. Therein, the Government noted that the State of Mississippi had suspended Respondent's state medical license effective May 4, 2009, id. at 2, and that Respondent did not dispute that the Mississippi State Board of Medical Licensure (Mississippi Board) had taken “adverse actions against” him. Id. at 5 (quoting Respondent's Resp. to Order to Show Cause, at 1). As support for its motion, the Government attached a copy of a Consent Order which Respondent entered into with the Mississippi Board.

The Consent Order noted that on or about October 16, 2008, Respondent had been convicted by the U.S. District Court for the Southern District of Mississippi of two counts of Filing a False Tax Return in violation of 26 U.S.C. 7201(1). Consent Order at 1. The Consent Order further noted that under Mississippi law, “conviction of a felony or misdemeanor involving moral turpitude” is ground for the suspension or revocation of a state medical license and that Respondent had “consent[ed] to the indefinite suspension of his license to begin on May 4, 2009, the date he was ordered by the District Court to surrender and commence serving his sentence. Id. at 1-2. Based on the Agency's longstanding rules that (1) a practitioner must be currently authorized to handle controlled substances in the State in which he practices in order to hold a DEA registration in that State, and (2) where a registrant loses his state authority, he is not entitled to maintain his DEA registration, the Government moved for summary disposition. Mot. for Summ. Disp., at 3.

On February 16, 2010, Respondent filed a motion which requested that the ALJ transfer his request for a writ of habeas corpus to an Article III judge. The motion was premised on Respondent's contention that he has a right to “a personal hearing at DEA headquarters” under the Due Process Clause and 21 U.S.C. 824(c). Resp. Motion Req. Transfer of Req. for Writ of Habeas Corpus, at 1-2.

The next day, Respondent filed his response to the Government's motion for summary disposition. Respondent's Resp., at 1. Therein, Respondent asserted that “[d]ue process dictates that this Court must ensure that legal representation is obtained for” him and that “[h]e had a right to be present at the formal hearing as indicated in [the] Show Cause Order.” Id. at 2. Respondent further stated that he “cannot reply to the Government's response, [as] to do so, allows the assumption that he is acting Pro Se, without legal representation in this proceeding.” Id. Continuing, Respondent contended that “it is incumbent that this Court secure the assistance of an Article III [j]udge” to issue a writ of habeas corpus. Id. Respondent thus requested that the proceeding be stayed pending resolution of the issue. Id.

On March 16, the ALJ issued an Amended Order granting the Government's Motion for summary disposition.^[3] Amended Order Granting Summary Disposition, at 5. Therein, the ALJ noted that “no genuine dispute exists over the material fact that Respondent currently lacks state authority to handle controlled substances in Mississippi, his state of registration with the DEA, since his state license was indefinitely suspended on May 4, 2009.” Id. at 4. The ALJ thus applied the Agency's settled rules that “a practitioner must be currently authorized to handle controlled substances in `the jurisdiction in which he practices' in order to maintain a DEA registration,” and “because `possessing authority under state law to handle controlled substances is an essential condition for holding a DEA registration * * * the CSA requires the revocation of a registration issued to a practitioner who lacks [such authority].' ” Id. at 3 (quoting Roy Chi Lung, 74 FR 20346, 20347 (2009) (other citations omitted)). The ALJ further noted that revocation is warranted even “ `when a state license has been suspended, but with the possibility of future reinstatement,' ” id. (quoting Roger A. Rodriguez, 70 FR 33206, 33207 (2005)), “and even where there is a judicial challenge to the state medical board action actively pending in the state courts.” Id. at 4 (citing Michael G. Dolin, 65 FR 5661, 5662 (2000)). The ALJ thus granted the Government's motion for summary disposition and recommended that Respondent's registration be revoked and that any pending applications be denied.^[4] Id. at 5.

On March 11, 2010, following the ALJ's initial order granting summary disposition, Respondent filed a pleading he entitled as “Inter-Agency Appeal For Reconsideration of Administrative Law Judge's Decision and Request For Stay of ALJ's Final Judgement [sic].” For the purpose of this decision, this pleading will be deemed to be Respondent's Exceptions to the ALJ's recommended decision.

On April 12, 2010, the ALJ forward the record to me for final agency action. Having considered the entire record, I reject each of the arguments raised in Respondent's Exceptions and adopt the ALJ's decision in its entirety.

In his Exceptions, Respondent raises three primary arguments. First, he contends that the ALJ erred by failing to either appoint counsel to represent him or alternatively, by failing to refer his request for a writ of habeas corpus to an Article III judge, who would presumably order the Government to allow him to personally attend the hearing. As for the first part of his contention, there is no constitutional right to appointed counsel in a proceeding under 21 U.S.C. 824(a). See Goldberg v. Kelly, 397 U.S. 254, 270 (1970). Nor does Respondent cite any authority for his contention that the ALJ was required to transfer his request for a writ of habeas corpus to an Article III judge, which Respondent could have filed in the appropriate federal district court.^[5]

Next, Respondent contends that the ALJ's grant of summary disposition was “arbitrary and capricious” because there were disputed issues of material fact. According to Respondent, he did not “knowingly and intelligently” waive his right to a hearing before the Mississippi Board, id. at 12; his “waiver [was] obtained through misrepresentation and under extreme duress,” id. at 8; and he is currently challenging the validity of his waiver in the Mississippi State Courts. Id. at 12.

This argument, however, takes Respondent nowhere because “DEA has repeatedly held `that a registrant cannot collaterally attack the results of a state criminal or administrative proceeding in a proceeding under section 304 [21 U.S.C. § 824] of the CSA.' ” Hicham K. Riba, 73 FR 75773, 75774 (2008) (quoting Brenton D. Glisson, 72 FR 54296, 54297 (2007) (other citation omitted)). See also Shahid Musud Siddiqui, 61 FR 14818 (1996); Robert A. Leslie, 60 FR 14004 (1995). Respondent's various contentions regarding the validity of the Consent Order are therefore not material to this Agency's resolution of whether he is entitled to maintain his DEA registration.

Because 21 U.S.C. 824(a)(3) authorizes the revocation of a registration “upon a finding that the registrant * * * has had his State license suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substance,” the only fact material to resolving this dispute is whether Respondent holds a State license. There being no dispute that Respondent lacks the requisite state authority, there was no need for an evidentiary hearing, as summary judgment has been used for more than 100 years to resolve legal “actions in which there is no genuine issue as to any material fact” and has never been deemed to violate Due Process. See Fed. R. Civ. P. 56 (Advisory Committee Notes—1937 Adoption). Cf. Codd v. Velger, 429 U.S. 624, 627 (1977).

Nor was Respondent entitled to an in-person hearing to challenge the sanction which the ALJ recommended. Cf. Anderson v. Recore, 446 F.3d 324, 330-31 (2d Cir. 2006). Under DEA's longstanding interpretation of the CSA, revocation is warranted whenever a practitioner's state authority has been revoked because, under the plain terms of the statute, possessing such authority is an essential condition for holding a DEA registration. See 21 U.S.C. 802(21) (“[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 id. § 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.”).

Accordingly, DEA has repeatedly held that the CSA requires the revocation of a registration issued to a practitioner whose state license has been suspended or revoked. David W. Wang, 72 FR 54297, 54298 (2007); Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988).^[6] This is so even where a state board has suspended (as opposed to revoked) a practitioner's authority with the possibility that the authority may be restored at some point in the future, Rodriguez, 70 FR at 33207, as well as where, as here, a practitioner has sought judicial review of the state board proceeding. Dolin, 65 FR at 5662. Because Respondent currently lacks authority to dispense controlled substances in Mississippi, the State in which he holds his DEA registration, his registration will be revoked and any pending applications will be denied.^[7]

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a), as well as 28 CFR 0.100(b) and 0.104, I order that DEA Certificate of Registration, AR7086689, issued to Calvin Ramsey, M.D., be, and it hereby is, revoked. I further order that any pending application of Calvin Ramsey, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective May 11, 2011.

Dated: April 1, 2011.

Michele M. Leonhart,

Administrator.

Footnotes

1.  The Order also alleged that Respondent's Registration does not expire until April 30, 2012. Show Cause Order at 1. Because Respondent does not dispute this, I find that he has a current registration.

2.  Therein, Respondent also requested that the Administrative Law Judge “issue a writ of Habeas Corpus to allow [him] to have a personal hearing in Springfield, Virginia in the interest of true [j]ustice.” Response to Order to Show Cause, at 2. In his Order Directing the Government to File Evidence, the ALJ noted that Respondent's “request is beyond the jurisdiction of this tribunal.” Order Directing Gov. to File Evidence Regarding Status of Resp.'s State Authority, at 1 n.1.

3.  Apparently, the ALJ initially mistook Respondent's February 16 motion requesting that his request for a writ of habeas corpus be transferred to an Article III judge as his pleading responding to the Government's summary judgment motion and issued a recommended decision on February 17. At some point thereafter, the ALJ concluded that the pleading Respondent filed on February 17 was, in fact, intended to be his response to the Government's summary disposition motion although he maintained that he “cannot reply to the Government's response, [because] to do so, allows the assumption that he is acting Pro Se, without legal representation in this proceeding.” Respondent's Resp. to ALJ's Order, at 2. The ALJ therefore considered the arguments contained therein and issued an amended decision.

3.  In his Amended Order, the ALJ did not address any of the contentions raised by Respondent in his March 11, 2010 “Inter-Agency Appeal for Reconsideration of Administrative Law Judge's Decision and Request for Stay of ALJ's Final Judgement [sic].” Amended Order Granting Summary Disposition, at 3 n.4.

5.  The ALJ explained that had a hearing been necessary, he would have taken “all reasonable steps” to provide a hearing, “notwithstanding his incarcerated status.” ALJ Amended Order at 5 n.5.

6.  In his Exceptions, Respondent cites two cases which he contends the ALJ “failed to consider” as cases where physicians had lost their state licenses and yet “no revocation of [the] physician's DEA license occurred. Exceptions at 8 (citing Barry H. Brooks, M.D., 66 FR 18305 (2001); Vincent J. Scolaro, 67 FR 42060 (2002)). Neither of these case support Respondent because in both of them, the physician's state authority had been restored at the time of the proceeding. See Brooks, 66 FR at 18308; Scolaro, 67 FR at 42065.

7.  In the event the State Board restores Respondent's medical license at some point in the future, he can then apply for a new registration.