Daily Rules, Proposed Rules, and Notices of the Federal Government
On August 10, 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 Certificates of Registration be revoked and that any pending applications to renew or modify his registrations 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 Numbers FV1935595, FV2000711, and FV2000735, issued to Fernando Valle, M.D., be, and they hereby are, revoked. I further order that any pending applications of Fernando Valle, M.D., to renew or modify his registrations, be, and they hereby are, denied. This Order is effective immediately.
Chief Administrative Law Judge John J. Mulrooney, II. On June 25, 2012, the Administrator of the Drug Enforcement Administration (DEA), issued an Order to Show Cause and Immediate Suspension of Registration (OSC/ISO) immediately suspending and proposing to revoke the DEA Certificate of Registration (COR), Number FV1935595, of the Respondent pursuant to 21 U.S.C. 824(a), and to deny any pending applications for registration, renewal or modification pursuant to 21 U.S.C. 823(f) and 824(a) because the Respondent's continued registration would "be inconsistent with the public interest, as that term is defined in 21 U.S.C. 823(f)." As grounds for these proposed actions, the OSC/ISO alleges that the Respondent "prescribed * * * controlled substances to * * * undercover law enforcement officers not for a legitimate medical purpose in the usual course of professional practice in violation of applicable Federal, State and local law." OSCI/ISO, at 1. The OSC/ISO was served on the Respondent on June 27, 2012. Gov't Not. of Service. On July 26, 2012, the Respondent, through counsel, filed a timely request for hearing.
On July 27, 2012, the Government filed a Motion for Summary Disposition and Motion to Stay Proceedings ("MSD"), in which it represented that "[o]n June 26, 2012, the State of Florida [the state in which Respondent holds his COR] Department of Health executed an emergency order suspending Respondent's medical license M41752, effective immediately."
By a July 27, 2012, Order, this tribunal granted the Government's motion to stay, and directed the Respondent to file a response to the Government's motion for summary disposition on or before August 6, 2012. Order Regarding Government's Motion for Summary Disposition, at 2.
On August 3, 2012, the Respondent filed his response to the MSD. Respondent's Response to Government's Motion for Summary Disposition ("Response"). In the Response, the Respondent contends that revocation based on the Emergency Order "will effectively result in a denial of Due Process to Respondent without notice or opportunity for hearing and based only on the minimal standards of probable cause." Response, at 2-3. The Respondent further submits that:
On August 6, 2012, the Government filed a Reply to Respondent's Response
In its MSD and its Reply, the Government correctly contends that state authority is a necessary condition precedent for the acquisition or maintenance of a DEA registration, and the suspension of the Respondent's state practitioner's license precludes the continued maintenance of his DEA COR, thus requiring revocation. MSD at 1-2; Reply at 1-2. 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."
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]."
The Respondent's assertions that the State of Florida and DEA acted in temporally close fashion has no bearing on the correct resolution of the issue raised by the Government's MSD. Neither does it matter that the Respondent intends to contest the emergency order at a state administrative hearing.
The seminal issue presented by the MSD, whether a hearing is appropriate under the uncontroverted circumstances present here, must be answered in the negative. Congress does not intend for administrative agencies to perform meaningless tasks.
At this juncture, no genuine dispute exists over the fact that the Respondent lacks state authority to handle controlled substances in the State of Florida. 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. I therefore conclude that further delay in ruling on the Government's motion for summary disposition is not warranted.
Accordingly, I hereby