Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Notices 16821 

1While Respondent requested that the Deputy 

Assistant Administrator stay the issuance of the 

Final Order, given that the Deputy Assistant 

Administrator has no authority to issue the 

Agency’s Final Order, I address the request as if it 

was directed to this Office. 

2While in Bergman, the ALJ stayed the 

proceeding until after the registrant’s state board 

hearing, the decision of the Agency, which revoked 

his registration, did not endorse this practice. 

Moreover, the decision expressly noted that 

‘‘[d]enial or revocation is also appropriate when a 

state license has been suspended, but with the 

possibility of future reinstatement.’’ 70 FR at 33193 

(collecting cases). 

membership. The notifications were 

filed for the purpose of extending the 

Act’s provisions limiting the recovery of 

antitrust plaintiffs to actual damages 

under specified circumstances. 

Specifically, Strategic Test AB, Woburn, 

MA; Integrated Device Technology, Inc. 

(IDT), San Jose, CA; DGE Inc., Rochester 

Hills, MI; Tundra Semiconductor Corp., 

Fremont, CA; Tyco Electronics, 

Middletown, PA; and Crystek 

Corporation, Fort Myers, FL, have 

withdrawn as parties to this venture. 

No other changes have been made in 

either the membership or planned 

activity of the group research project. 

Membership in this group research 

project remains open, and PXI Systems 

Alliance, Inc. intends to file additional 

written notifications disclosing all 

changes in membership. 

On November 22, 2000, PXI Systems 

Alliance, Inc. filed its original 

notification pursuant to Section 6(a) of 

the Act. The Department of Justice 

published a notice in the Federal 

Register pursuant to Section 6(b) of the 

Act on March 8, 2001 (66 FR 13971). 

The last notification was filed with 

the Department on September 22, 2010. 

A notice was published in the Federal 

Register pursuant to Section 6(b) of the 

Act October 25, 2010 (75 FR 65511). 

Patricia A. Brink, 

Director of Civil Enforcement, Antitrust 

Division. 

[FR Doc. 2011–6915 Filed 3–24–11; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 11–2] 

Gregory F. Saric, M.D.; Decision and 

Order 

On November 2, 2010, Administrative 

Law Judge (ALJ) Timothy D. Wing 

issued the attached recommended 

decision. Thereafter, Respondent filed 

exceptions to the decision. 

Having reviewed the record in its 

entirety including the ALJ’s 

recommended decision, I have decided 

to adopt the ALJ’s rulings, findings of 

fact, conclusions of law, and 

recommended Order. 

In his Exceptions, Respondent argues 

that ‘‘the ALJ’s Recommended Decision 

fails to take into account certain 

exceptions where a suspension or stay 

of revocation has been granted in 

circumstances similar to that of 

Respondent’s.’’ Exceptions at 1 (citing 

Stuart A. Bergman, M.D., 70 FR 33193 

(2005)). Respondent notes that ‘‘[i]n 

Bergman[,], the ALJ delayed issuing her 

ruling on the Government’s Motion for 

Summary Disposition for over two 

months to allow for a pending state 

board hearing.’’ Id. Respondent states 

that ‘‘he is currently receiving treatment 

in [an] approved rehabilitation program 

and will likely complete his treatment 

next month,’’ that ‘‘[h]e is in full 

compliance with the Florida 

Department of Health and the Florida 

Professionals Resource Network and 

will appear before the Florida Board of 

Medicine to have his license reinstated 

in early 2011.’’ Id. at 1–2. 

Respondent contends that a stay of 

this Final Order ‘‘will allow him time to 

complete his rehabilitation and have the 

state suspension of his medical license 

lifted’’ and that ‘‘such a stay * * * is 

within the Deputy Assistant 

Administrator’s authority and would 

not disserve the public interest.’’ Id. 

Respondent thus requests that the 

issuance of this Final Order be stayed 

for ninety (90) days 1 in order to allow 

him ‘‘time to have the temporary 

suspension of his Florida medical 

license lifted.’’ Id. 

However, more than ninety days have 

already passed since Respondent filed 

his Exceptions, and yet Respondent has 

submitted no evidence to this Office 

establishing that the Florida Board of 

Medicine has re-instated his medical 

license. Nor has Respondent even 

submitted evidence as to when he is 

scheduled to appear before the Florida 

Board. 

Moreover, in circumstances similar to 

those raised by Respondent, DEA has 

repeatedly denied requests to stay the 

issuance of a final order of revocation, 

noting that ‘‘[u]nder the Controlled 

Substances Act, ‘a practitioner must be 

currently authorized to handle 

controlled substances in ‘‘the 

jurisdiction in which [he] practices’’ in 

order to maintain [his] DEA 

registration.’ ’’ Newcare Home Health 

Servs., 72 FR 42126 (2007) (quoting 

Bourne Pharmacy, Inc., 72 FR 18273, 

18274 (2007) (quoting 21 U.S.C. 

802(21))). See also 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 * * * dispense * * * a controlled 

substance in the course of professional 

practice’’); 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.’’); Bourne Pharmacy, 72 FR at 

18274 (revoking registration; ‘‘Under the 

CSA, it does not matter whether the 

suspension is for a fixed term or for a 

duration which has yet to be determined 

because it is continuing pending the 

outcome of a state proceeding. Rather, 

what matters—as DEA has repeatedly 

held—is whether Respondent is without 

authority under [state] law to dispense 

a controlled substance.’’). 

Thus, Respondent’s reliance on 

Bergman is misplaced.2 As I further 

explained in Newcare, ‘‘[i]t is not DEA’s 

policy to stay proceedings under section 

304 while registrants litigate in other 

forums.’’ 72 FR at 42127 (citing Bourne 

Pharmacy, 72 FR at 18273; Oakland 

Medical Pharmacy, 71 FR 50100 (2006); 

Kennard Kobrin, M.D., 70 FR 33199 

(2005)). This is so, because in addition 

to the CSA’s requirement that a 

practitioner hold state authority in order 

to be registered, whether Respondent’s 

state license will be re-instated is 

entirely speculative. Nor is there any 

evidence in the record as to when such 

action may occur. 

Therefore, I adopt the ALJ’s 

recommendation that Respondent’s 

registration be revoked. 

Order 

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) and 0.104, I order 

that DEA Certificate of Registration, 

BS5109889, issued to Gregory F. Saric, 

M.D., be, and it hereby is, revoked. I 

further order that any pending 

application of Gregory F. Saric, M.D., to 

renew or modify his registration, be, and 

it hereby is, denied. This Order is 

effective April 25, 2011. 

Dated: March 10, 2011. 

Michele M. Leonhart, 

Administrator. 

Larry P. Cote, Esq., for the Government. 

George F. Indest, III, Esq., for 

Respondent. 

Recommended Ruling, Findings of Fact, 

Conclusions of Law, and Decision of the 

Administrative Law Judge 

Administrative Law Judge Timothy D. 

Wing. On September 9, 2010, the 

Deputy Assistant Administrator, DEA, 

issued an Order to Show Cause (OSC) of 


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16822 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Notices 

DEA COR BS5109889, dated September 

9, 2010, and served on Respondent on 

September 15, 2010. The OSC provided 

notice to Respondent of an opportunity 

to show cause as to why the DEA should 

not revoke Respondent’s DEA COR 

BS5109889 pursuant to 21 U.S.C. 

824(a)(3), on the grounds that 

Respondent lacks authority to handle 

controlled substances in Florida, the 

state in which he maintains his DEA 

registration. On October 8, 2010, 

Respondent, through counsel, in a letter 

dated October 5, 2010, timely requested 

a hearing with the DEA Office of 

Administrative Law Judges (OALJ). 

I issued an Order for Prehearing 

Statements on October 13, 2010. On 

October 18, 2010, the Government filed 

a Motion for Summary Disposition. On 

October 18, 2010, I issued an order 

staying the proceedings pending the 

resolution of the Government’s motion 

and directing Respondent to reply to the 

Government’s motion, if at all, by 

October 25, 2010. On October 21, 2010, 

Respondent, through counsel, filed a 

Motion for Enlargement of Time and 

Motion to Require the Government to 

Serve Pleadings Via Facsimile. I granted 

that motion on October 21, 2010, and 

granted Respondent until November 1, 

2010, to respond to the Government’s 

motion. 

On October 29, 2010, Respondent 

timely filed his response to the 

Government’s Motion for Summary 

Disposition. 

II. The Parties’ Contentions 

A. The Government 

In support of its motion for summary 

disposition, the Government asserts that 

on August 24, 2010, the State of Florida 

Board of Medicine (Board) issued a final 

order indefinitely suspending 

Respondent’s Florida Medical license, 

and that Respondent consequently lacks 

authority to possess, dispense or 

otherwise handle controlled substances 

in Florida, the jurisdiction in which he 

maintains his DEA registration. The 

Government notes that in Respondent’s 

request for a hearing, Respondent 

admits that he is currently without a 

Florida medical license. (Gov’t Mot. 

Sum. Disp. at 1 (citing Resp’t Hg. Req. 

dated October 5, 2010, at 2.)) The 

Government contends that such state 

authority is a necessary condition for 

maintaining a DEA COR and therefore 

asks that I summarily recommend to the 

Deputy Administrator that Respondent’s 

COR be revoked. In support of its 

motion, the Government attaches the 

Board’s final order referred to above, 

marked for identification as Exhibit A. 

B. Respondent 

Respondent opposes summary 

disposition, in sum and in substance 

‘‘because he is in the process of 

cooperating completely with the Florida 

Board of Medicine, Department of 

Health, to have its temporary 

suspension of his license lifted and we 

expect this to happen in the near 

future.’’ (Resp’t Hg. Req. at 2; see also 

Resp’t Opp’n Sum. Disp. at 2 ¶¶ 4–5.) 

Respondent states that the revocation of 

his DEA COR ‘‘would cause him 

tremendous hardship upon his return to 

the active practice of medicine’’ (Resp’t 

Opp’n Sum. Disp. at 2 ¶ 6) and seeks 

to proceed with the pending 

administrative proceedings. 

In the alternative, Respondent argues 

that 21 U.S.C. 824(a)(3) allows the 

suspension of a DEA registration as an 

alternate remedy to revocation, and that 

‘‘suspension is a far more appropriate 

remedy given the facts of this matter 

and the temporary nature of the 

suspension of the Respondent’s medical 

license.’’ (Resp’t Opp’n Sum. Disp. at 1 

¶¶2–3.) Respondent therefore argues 

that if summary disposition is proper, 

then I should not recommend 

revocation but instead ‘‘order the 

immediate suspension of Respondent’s 

DEA registration until such time as his 

Florida medical license has been 

reinstated.’’ (Id. at 2 ¶8.) 

III. Discussion 

At issue is whether Respondent may 

maintain his DEA COR given that 

Florida has suspended his state license 

to practice medicine, even though the 

suspension may be temporary. 

Under 21 U.S.C. 824(a)(3), a 

practitioner’s loss of state authority to 

engage in the practice of medicine and 

to handle controlled substances is 

grounds to revoke a practitioner’s 

registration. Accordingly, this agency 

has consistently held that a person may 

not hold a DEA registration if he is 

without appropriate authority under the 

laws of the state in which he does 

business. See Scott Sandarg, D.M.D., 74 

FR 17,528 (DEA 2009); David W. Wang, 

M.D., 72 FR 54,297 (DEA 2007); Sheran 

Arden Yeates, M.D., 71 FR 39,130 (DEA 

2006); Dominick A. Ricci, M.D., 58 FR 

51,104 (DEA 1993); Bobby Watts M.D., 

53 FR 11,919 (DEA 1988). 

Summary disposition in a DEA 

suspension case is warranted even if the 

period of suspension of a respondent’s 

state medical license is temporary, or 

even if there is the potential for 

reinstatement of state authority because 

‘‘revocation is also appropriate when a 

state license had been suspended, but 

with the possibility of future 

reinstatement.’’ Stuart A. Bergman, 

M.D., 70 FR 33,193 (DEA 2005); Roger 

A. Rodriguez, M.D., 70 FR 33,206 (DEA 

2005). 

It is well-settled that when no 

question of fact is involved, or when the 

material facts are agreed upon, a 

plenary, adversarial administrative 

proceeding is not required, under the 

rationale that Congress does not intend 

administrative agencies to perform 

meaningless tasks. See Layfe Robert 

Anthony, M.D., 67 FR 35,582 (DEA 

2002); Michael G. Dolin, M.D., 65 FR 

5661 (DEA 2000); see also Philip E. Kirk, 

M.D., 48 FR 32,887 (DEA 1983), aff’d 

sub nom. Kirk v. Mullen, 749 F.2d 297 

(6th Cir. 1984). Accord Puerto Rico 

Aqueduct & Sewer Auth. v. EPA, 35 

F.3d 600, 605 (1st Cir. 1994). 

In the instant case, the Government 

asserts that Respondent’s Florida 

medical license is presently suspended. 

(See Gov’t Mot. Sum. Disp. at 1.) This 

allegation is confirmed by Government 

Exhibit A, as well as Respondent’s own 

admission: In predicting that the 

suspension of his Florida medical 

license will soon be lifted, Respondent 

by necessity concedes the fact of its 

suspension. (Resp’t Hg. Req. dated 

October 5, 2010, at 2; Resp’t Opp’n Sum. 

Disp. at 2 ¶4.) I therefore find there is 

no genuine dispute as to any material 

fact, and that substantial evidence 

shows that Respondent is presently 

without state authority to handle 

controlled substances in Florida. 

Consequently, I conclude that summary 

disposition is appropriate. 

Respondent’s assertion that losing his 

DEA COR would cause him hardship 

does not alter this conclusion. 

Respondent cites no authority, and a 

review of agency precedent reveals 

none, for the contention that potential 

hardship to a registrant may prevent 

revocation of a DEA COR pursuant to 21 

U.S.C. 824(a)(3) where the registrant 

lacks state authority to handle 

controlled substances. 

In the alternative, Respondent argues 

that even if revocation is warranted, 

Section 824(a)(3) permits me to 

recommend suspension instead of 

revocation. The crux of Respondent’s 

argument turns on the disjunctive 

language of § 824(a)(3), which provides 

that a registration ‘‘may be suspended or 

revoked * * *’’ where a registrant lacks 

state authority to handle controlled 

substances. Id. (emphasis supplied). 

Respondent cites no authority in 

support of his reading of § 824(a)(3). 

Respondent’s interpretation of 

§ 824(a)(3) ignores the weight of settled, 

contrary agency precedent that has 

consistently imposed revocation and not 

suspension on similar facts. See Stuart 


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Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Notices 16823 

1As the basis for rejecting the ALJ’s 

recommended sanction of a one-year suspension 

and revoking Respondent’s registration, the DA 

cited four findings: (1) Respondent’s ‘‘failure to 

acknowledge the need for adequate recordkeeping 

to insure [sic] that controlled substances are not 

diverted’’; (2) his ‘‘lack of remorse concerning his 

* * * unlawful recordkeeping and refill practices’’; 

(3) his ‘‘failure to act in a timely manner upon, and 

to take responsibility for, receipt of information 

given him or to his staff concerning the forged 

prescriptions of Patient #3’’; and (4) his ‘‘lack of 

acknowledgement that the inadequate treatment 

record of Patient #1 could have ultimately 

jeopardized that patient’s welfare.’’ 60 FR at 55051. 

A. Bergman, M.D., 70 FR 33,193 (DEA 

2005) (denying respondent’s request for 

temporary suspension and granting 

motion for summary disposition where 

respondent lacked state authority); see 

also Roy Chi Lung, 74 FR 20,346, 20,346 

(DEA 2009) (‘‘Respondent * * * lack[s] 

authority to handle controlled 

substances in California * * * 

Respondent is therefore not entitled to 

maintain his DEA registration.’’) 

(emphasis supplied); Sheran Arden 

Yeates, M.D., 71 FR 39,130, 39,131 (DEA 

2006) (‘‘DEA does not have statutory 

authority under the Controlled 

Substances Act to maintain a 

registration if the registrant is without 

state authority to handle controlled 

substances in the state in which he 

practices.’’). See generally 21 CFR 

1301.01(17) (2010) (defining ‘‘individual 

practitioner’’ as a person, other than a 

pharmacist, pharmacy or institutional 

practitioner, possessing state authority 

to dispense a controlled substance in 

the course of a professional practice). 

Under the circumstances discussed 

above, I conclude that further delay in 

ruling on the Government’s Motion for 

Summary Disposition is not warranted. 

Recommended Decision 

I grant the Government’s motion for 

summary disposition and recommend 

that Respondent’s DEA COR BS5109889 

be revoked and any pending 

applications denied. 

Dated: November 2, 2010 

Timothy D. Wing, 

Administrative Law Judge. 

[FR Doc. 2011–7016 Filed 3–24–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 09–35] 

Robert L. Dougherty, M.D.; Denial of 

Application 

On March 16, 2009, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Robert L. Dougherty, 

M.D. (Respondent), of Poway, 

California. ALJ Ex. 1. The Show Cause 

Order proposed the denial of 

Respondent’s pending application for a 

DEA Certificate of Registration as a 

practitioner, on the ground that his 

‘‘registration would be inconsistent with 

the public interest, as that term is used 

in 21 U.S.C. 823(f).’’ Id. at 1. 

The Show Cause Order alleged that on 

October 27, 1995, the DEA Deputy 

Administrator (DA) issued a Final Order 

revoking Respondent’s registration 

based on his prescribing of controlled 

substances to three patients. Id. (citing 

60 FR 55047). More specifically, the 

Show Cause Order alleged that the DA 

had ‘‘found that [Respondent’s] 

prescribing of controlled substances to 

Patient #1 ‘on demand,’ ‘virtually upon 

request,’ with ‘virtually no scrutiny’ and 

with ‘virtually no records or monitoring’ 

demonstrated a gross lack of judgment 

and showed that some of the 

prescriptions issued were outside the 

course of professional practice.’’ Id. 

With regard to Patient #2, the Show 

Cause Order alleged that the DA ‘‘found 

that * * * Respondent’s prescribing of 

controlled substances to an admitted 

drug abuser showed a disregard of the 

requirements for detailed attention to 

individual patient behavior necessary 

for the dispensing of controlled 

substances.’’ Id. With regard to Patient 

#3, the Show Cause Order alleged that 

the DA found that Respondent’s 

‘‘prescribing of an excessive number of 

refills of controlled substances over a 

six month period, without requiring a 

clinical examination or visit, 

demonstrated a reckless disregard for 

medical standards in dispensing 

controlled substances and violations of 

Federal regulations and state law[,]’’ and 

that he ‘‘had violated Federal and state 

record-keeping requirements for 

controlled substances.’’ Id. 

Finally, the Show Cause Order alleged 

that on June 25, 1997, the Medical 

Board of California (MBC) issued a 

decision which ‘‘severely criticized 

[Respondent’s] treatment of [P]atient 

#1.’’ Id. The Order alleged that the MBC 

had found that Respondent ‘‘had 

engaged in repeated negligent acts and 

had demonstrated incompetence in [his] 

treatment of the patient[,]’’ and that 

‘‘[t]his misconduct included prescribing 

controlled substances to an obvious 

drug addict.’’ Id. at 1–2. 

Respondent requested a hearing on 

the allegations, and the matter was 

placed on the docket of the Agency’s 

Administrative Law Judges (ALJ). 

Following pre-hearing procedures, on 

March 10, 2010, an ALJ conducted a 

hearing on the matter in San Diego, 

California, at which both parties called 

witnesses to testify and the Government 

introduced documentary evidence. 

Thereafter, both parties filed briefs 

containing their proposed findings of 

fact, conclusions of law, and argument. 

On June 9, 2010, the ALJ issued her 

recommended decision (also ALJ). 

Therein, the ALJ found that the 

Government had ‘‘met its prima facie 

burden.’’ ALJ at 22. However, the ALJ 

reasoned that all of the facts and 

circumstances should be considered 

including that Respondent’s ‘‘mistakes’’ 

involved only ‘‘a very small portion of 

his patients,’’ that one of the patients 

was a relative who has since died and 

that this ‘‘decreases the likelihood that 

similar circumstances would reoccur,’’ 

and that Respondent’s ‘‘mis-judgments 

were well intentioned.’’ Id. at 22–24. 

Next, the ALJ reasoned that ‘‘there was 

controversy in the medical community 

with regards to his prescribing practices, 

and that his methods have since been 

adopted by the FDA, though not 

necessarily DEA,’’ and that his 

prescribing methods, while ‘‘found to be 

objectionable over ten years ago * * * 

may, according to the record, arguably 

not be objectionable now.’’ Id. at 24. The 

ALJ thus concluded that ‘‘the 

circumstances surrounding his 

prescribing practices have changed.’’ Id. 

Finally, the ALJ noted that in the 1995 

Final Order, the Agency had made four 

summarized findings.1 Id. at 25. While 

the ALJ noted that Respondent did not 

‘‘completely acknowledge his past 

problems with refill practices with 

regards to Patient #2,’’ she found it 

relevant that the ALJ who conducted the 

earlier hearing had ‘‘recognized 

discrepancies in the Government’s 

evidence relating to how many refills 

were actually authorized.’’ Id. With 

respect to the Agency’s finding that 

Respondent failed ‘‘to act in a timely 

manner upon, and to take responsibility 

for, receipt of information given to him 

or to his staff concerning the forged 

prescriptions of Patient #3,’’ the ALJ 

reasoned that ‘‘the record demonstrates 

that [he] received information about 

possibly forged prescriptions, made 

inquiries, questioned the patient, was 

deceived, and ultimately stopped 

prescribing to the patient.’’ Id. at 26. 

Finally, with respect to Patient #1, the 

ALJ characterized the Agency’s finding 

as that he had maintained an 

‘‘inadequate treatment record.’’ Id. at 26. 

Reasoning that ‘‘[t]here is no question 

that the Respondent demonstrated 

remorse with regards to his recordkeeping,’’ and that the ‘‘DA’s 

summarized findings focused on recordkeeping,’’ the ALJ concluded that 


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