Daily Rules, Proposed Rules, and Notices of the Federal Government
On July 2, 2012, Chief Administrative Law Judge John J. Mulrooney, Jr., issued the attached Recommended Decision. Neither party filed exceptions to the Recommended Decision.
Having reviewed the entire record, I have decided to adopt the ALJ's findings of fact, conclusions of law, and recommended order. Accordingly, I will order that Respondent's DEA Certificate of Registration be revoked and that any pending application to renew or modify his registration be denied.
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 Certificate of Registration Number BP2742357, issued to Larry Elbert Perry, M.D., be, and it hereby is, revoked. I further order that any pending application of Larry Elbert Perry, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective December 13, 2012.
Chief Administrative Law Judge John J. Mulrooney II. On May 4, 2012, the Deputy Assistant Administrator of the Drug Enforcement Administration (DEA), issued an Order to Show Cause (OSC), proposing to revoke the DEA Certificate of Registration (COR), Number BP2742357, of Larry Elbert Perry, M.D. (Respondent), pursuant to 21 U.S.C. SS 824(a)(3) and (4) (2006), and to deny any pending applications for renewal or modification of such registration, pursuant to 21 U.S.C. SS 823(f). In the OSC, the Government alleges that revocation is necessary because the Respondent does "not have authority to practice medicine or handle controlled substances in the State of Kentucky," the State of the Respondent's registration. OSC, at 1-2.
On June 6, 2012, the DEA Office of Administrative Law Judges (OALJ) received from the Respondent, through counsel, a timely filed request for hearing (Hearing Request) that contained a request for continuance, and which conceded that the Respondent lacks authority to handle controlled substances in the State of Kentucky. The Respondent's Hearing Request contended that the loss of his Kentucky authority was based, in large part, on a disciplinary action by the Tennessee Board of Medicine, and that an extension should be granted for "a reasonable period of time to allow [the Respondent] to regain his licenses in Tennessee and Kentucky." The same day, by order of this tribunal, the Respondent's motion for a continuance was denied. Order Denying the Respondent's Request for Continuance and Directing the Filing of Government Evidence in Support of its Lack of State Authority Allegation and Briefing Schedule ("Briefing Schedule Order"), at 1. In addition to denying the request for a continuance, the Briefing Schedule Order directed the Government "to provide evidence to support the allegation that the Respondent lacks state authority to handle controlled substances [on or before] June 15, 2012."
On June 7, 2012, the Government filed a Motion for Stay of Proceedings and Summary Disposition ("MSD"), seeking: (1) summary disposition; (2) a recommendation that "the Respondent's DEA COR as a practitioner be revoked, based on the Respondent's lack of a state licensure;" (3) the transmission of the instant matter to the Administrator for Final Agency Action; and (4) "a stay of these administrative proceedings pending the results of this Government motion." MSD, at 5. A copy of a November 19, 2009, Emergency Order of Suspension (Suspension Order) issued by the Commonwealth of Kentucky Board of Medical Licensure, and a copy of a September 26, 2011, Agreed Order of Surrender, which memorialized the Respondent's surrender of his state license to practice medicine, were both attached to the MSD. The Respondent did not file a response to the Government's motion within the time allowed.
Congress does not intend for administrative agencies to perform meaningless tasks.
In order to revoke a registrant's DEA registration, the Government has the burden of proving that the requirements for revocation are satisfied. 21 C.F.R. SS 1301.44(e). Once the Government has made its
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."
As explained above, summary disposition of an administrative case is warranted where, as here, "there is no factual dispute of substance."
Accordingly, I hereby
GRANT the Government's Motion for Summary Disposition;
DENY the Government's Motion for Stay of Proceedings as moot; and further RECOMMEND that the Respondent's DEA registration be REVOKED forthwith and any pending applications for renewal be DENIED.