[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Notices]
[Pages 20034-20036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8533]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-25]
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)).
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\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.
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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\
[[Page 20035]]
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.
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\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.
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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.
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\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.
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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\
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\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.
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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
[[Page 20036]]
``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. Sec. 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. Sec. 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\
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\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.
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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.
[FR Doc. 2011-8533 Filed 4-8-11; 8:45 am]
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