17672 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 

1Because the initial record contained no 

indication about the actual service date of the OSC 

or other information allowing for an evaluation of 

whether the Respondent’s hearing request was 

timely made pursuant to 21 CFR 1301.43, an order 

issued on July 27, 2010 wherein the Government 

was directed to provide evidence of the date of OSC 

service. After review of the submissions of the 

parties, it appears that the Respondent’s hearing 

request was timely filed. 

2The Respondent’s request for a hearing ‘‘in the 

matter of: Department of Health v. Alfred Eversley 

Boyce, D.O., Case No. 10–3167PL’’ (emphasis 

supplied), i.e. the state administrative action in 

Florida, that was filed on OALJ is herein deemed 

to constitute a sufficient request for hearing relative 

to these proceedings. 

3The Government’s attachment will be included 

in the record as Government Exhibit 1. 

4See 21 U.S.C. 824(a) (‘‘A registration * * * may 

be suspended or revoked * * *.’’ (emphasis 

supplied)). 

examined on the following Department 

of Justice Web site: http:// 

www.usdoj.gov/enrd/ 

Consent_Decrees.html. Copies of the 

proposed agreements may also be 

obtained by mail from the Consent 

Decree Library, P.O. Box 7611, U.S. 

Department of Justice, Washington, DC 

20044–7611, or by faxing or e-mailing a 

request to Tonia Fleetwood 

(tonia.fleetwood@usdoj.gov), fax no. 

(202) 514–0097, phone confirmation 

number (202) 514–1547. In requesting 

from the Consent Decree Library a copy 

of the consent decree for United States 

v. Mariana Acquisition Corp., Civil 

Action No. CV 11–0006 (D. Northern 

Marianas), please enclose a check in the 

amount of $7.50 (25 cents per page 

reproduction cost) payable to the U.S. 

Treasury. 

Henry Friedman, 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FR Doc. 2011–7399 Filed 3–29–11; 8:45 am] 

BILLING CODE 4410–15–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 10–64] 

Alfred E. Boyce, M.D.; Decision and 

Order 

On August 12, 2010, Administrative 

Law Judge (ALJ) John J. Mulrooney, II, 

issued the attached recommended 

decision. The Respondent did not file 

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. 

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, 

FB0003943, issued to Alfred E. Boyce, 

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

further order that any pending 

application of Alfred E. Boyce, M.D., to 

renew or modify his registration, be, and 

it hereby is, denied. This Order is 

effective immediately. 

Dated: March 18, 2011. 

Michele M. Leonhart, 

Administrator. 

James Hambuechen, Esq., for the 

Government; 

Bradford M. Cohen, Esq., for the 

Respondent 

Order Granting Government Motion for 

Summary Disposition and 

Recommended Decision 

John J. Mulrooney, Administrative 

Law Judge. The Deputy Assistant 

Administrator, Drug Enforcement 

Administration (DEA or Government), 

issued an Order to Show Cause (OSC), 

dated May 13, 2010, proposing to revoke 

the DEA Certificate of Registration 

(COR), Number FB0003943, of Alfred E. 

Boyce, D.O. (Respondent), pursuant to 

21 U.S.C. 824(a)(3) and (4), and deny 

any pending applications for renewal or 

modification of the COR, pursuant to 21 

U.S.C. 823(f), because the Respondent’s 

continued registration is inconsistent 

with the public interest as that term is 

used in 21 U.S.C. 823(f). In the OSC, the 

Government alleges that the Respondent 

is, inter alia, ‘‘without authority to 

handle controlled substances in the 

state of Florida’’ as grounds for 

revocation of Respondent’s DEA 

registration. 

On July 22, 2010, the DEA Office of 

Administrative Law Judges (OALJ) 

received two separate documents from 

Respondent’s counsel, each dated July 

19, 2010, reflecting a notice of attorney 

appearance and a timely 1 request for 

hearing.2

On July 27, 2010, an order issued 

which directed, inter alia, that the 

Government provide evidence to 

support its allegation that Respondent 

lacks state authority in the state in 

which he is registered with DEA to 

handle controlled substances. A briefing 

schedule was also provided in the order 

fixing dates for the requesting filings, 

any Government motions for summary 

judgment or termination of proceedings 

based thereon, and any reply thereto by 

the Respondent. 

On July 28, 2010, the Government 

timely filed a document styled 

‘‘Government’s Motion for Stay of 

Proceedings and Summary Disposition’’ 

(Government’s Motion) wherein it seeks 

relief in the form of summary 

disposition based on its assertion that 

the Respondent ‘‘is not duly authorized 

to possess, dispense, or otherwise 

handle controlled substances in the 

State of Florida, the jurisdiction in 

which the Respondent engages in the 

practice of medicine.’’ Govt. Mot. at 1. 

Attached to the Government’s Motion 

was a copy of an Order of Emergency 

Suspension of License (Emergency 

Suspension Order) issued by the State of 

Florida Department of Health (Florida 

DOH) on April 28, 2010. Govt. Mot. at 

Attach. 1 3 (Florida DOH Order of 

Emergency Suspension of License dated 

April 28, 2010). The Emergency 

Suspension Order reflects the 

immediate suspension of the 

Respondent’s license to practice as an 

osteopathic physician in the state, 

pending further proceedings. The 

Florida DOH action is not based upon 

pending DEA proceedings, but based 

upon on its own factual findings that 

the Respondent violated numerous 

Florida statutes and administrative code 

provisions related to the prescribing of 

controlled substances, and its 

determination that the Respondent’s 

‘‘continued practice as an osteopathic 

physician constitutes an immediate 

serious danger to the health, safety, or 

welfare of the public.’’ Id. In its motion, 

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. Govt. 

Mot. at 2; see id. at Attach. 1. 

The Respondent filed an opposition 

on August 10, 2010, asserting, in 

essence, that the CSA does not strictly 

require COR revocation pursuant to 21 

U.S.C. 824(a)(3) where a registrant’s 

state license has been suspended and 

the registrant has lost state authorization 

to dispense controlled substances. The 

Respondent argues that sanctions 

provided for under the CSA that are 

lesser than revocation are appropriate, 

such as suspension of his COR,4 or 

limiting the suspension or revocation of 

his COR only ‘‘to the particular 

controlled substance [] with respect to 

which grounds for revocation or 

suspension exist.’’ 21 U.S.C. 824(b). As 

a mitigating basis for a sanction 

recommendation lesser than revocation, 

the Respondent points out that the cases 

cited by the Government in its summary 

disposition motion involve DEA COR 

revocations based on conduct other than 

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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 17673 

a temporary suspension of a state 

medical license. For that reason, the 

Respondent argues that a summary 

disposition in these DEA proceedings, 

based on the suspension of his state 

licensure, ‘‘would be inconsistent with 

[the Agency’s] previous rulings and 

would create a manifest injustice to 

Respondent.’’ While the Respondent’s 

position is not without some level of 

facial appeal, it is unsupported by the 

applicable statutes, regulations and 

precedent emanating from both the 

courts and the Agency. 

The Controlled Substances Act (CSA) 

requires 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. 

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.’’). Therefore, 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]’’ (emphasis supplied). Roy 

Chi Lung, 74 FR 20346, 20347 (2009); 

Scott Sandarg, D.M.D., 74 FR 17528, 

174529 (2009); John B. Freitas, D.O., 74 

FR 17524, 17525 (2009); Roger A. 

Rodriguez, M.D., 70 FR 33206, 33207 

(2005); Stephen J. Graham, M.D., 69 FR 

11661 (2004); Dominick A. Ricci, M.D., 

58 FR 51104 (1993); Abraham A. 

Chaplan, M.D., 57 FR 55280 (1992); 

Bobby Watts, M.D., 53 FR 11919 (1988). 

Denial of an application or revocation 

of a registration via a summary 

disposition procedure is also warranted 

if the period of a suspension is 

temporary, or if there exists the 

potential that Respondent’s state 

controlled substances privileges will be 

reinstated, because ‘‘revocation is also 

appropriate when a state license has 

been suspended, but with the possibility 

of future reinstatement,’’ Rodriguez, 70 

FR at 33207 (citations omitted), and 

even where there is a judicial challenge 

to the state medical board action 

actively pending in the state courts. 

Michael G. Dolin, M.D., 65 FR 5661, 

5662 (2000). 

In order to revoke a registrant’s DEA 

registration, the DEA has the burden of 

proving that the requirements for 

revocation are satisfied. 21 CFR 

1301.44(e). Once DEA has made its 

prima facie case for revocation of the 

registrant’s DEA COR, the burden of 

production then shifts to the 

Respondent to show that, given the 

totality of the facts and circumstances in 

the record, revoking the registrant’s 

registration would not be appropriate. 

Morall v. DEA, 412 F.3d 165, 174 (DC 

Cir. 2005); Humphreys v. DEA, 96 F.3d 

658, 661 (3d Cir. 1996); Shatz v. U.S. 

Dept. of Justice, 873 F.2d 1089, 1091 

(8th Cir. 1989); Thomas E. Johnston, 45 

FR 72311 (1980). 

Regarding the Government’s request 

for summary disposition of the present 

case, it is well-settled that where no 

genuine question of fact is involved, or 

when the material facts are agreed upon, 

a plenary, adversarial administrative 

proceeding is not required, see Jesus R. 

Juarez, M.D., 62 FR 14945 (1997); 

Dominick A. Ricci, M.D., 58 FR 51104 

(1993), under the rationale that Congress 

does not intend for administrative 

agencies to perform meaningless tasks. 

See Philip E. Kirk, M.D., 48 FR 32887 

(1983), aff’d sub nom. Kirk v. Mullen, 

749 F.2d 297 (6th Cir. 1984); see also 

Puerto Rico Aqueduct & Sewer Auth. v. 

EPA, 35 F.3d 600, 605 (1st Cir. 1994); 

NLRB v. Int’l Assoc. of Bridge, 

Structural & Ornamental Ironworkers, 

AFL–CIO, 549 F.2d 634 (9th Cir. 1977); 

United States v. Consol. Mines & 

Smelting Co., 455 F.2d 432, 453 (9th Cir. 

1971). 

The record evidence in the instant 

case clearly demonstrates that no 

genuine dispute exists over the 

established material fact that 

Respondent currently lacks state 

authority to handle controlled 

substances in Florida, his state of 

registration with the DEA, since his 

state osteopathic medical practitioner’s 

license was suspended on April 28, 

2010. Notwithstanding the Respondent’s 

attempts to distinguish the rationale for 

revocation in the cases cited by the 

Government as factually dissimilar to 

his own circumstances, the dispositive 

consideration here is that because the 

Respondent presently lacks state 

authority, both the plain language of the 

applicable federal statutory provisions 

and Agency interpretive precedent set 

forth herein dictate that the Respondent 

is not entitled to maintain his DEA 

registration, and therefore a registration 

action less than revocation is not 

appropriate. Simply put, there is no 

contested factual matter adducible at a 

hearing that can provide the Agency 

with authority to continue (or a fortiori 

for me to recommend) his entitlement to 

a COR under the circumstances and 

further delay in ruling on the 

Government’s motion for summary 

disposition is not warranted. 

Accordingly, the Government’s 

Motion for Summary Disposition is 

hereby granted, its Motion for Stay of 

Proceedings is denied as moot, and in 

view of the presently uncontroverted 

fact that the Respondent lacks state 

authority to handle controlled 

substances, it is herein recommended 

that the Respondent’s DEA registration 

be revoked forthwith and any pending 

applications for renewal be denied. 

Dated: August 12, 2010. 

John J. Mulrooney, II, 

U.S. Administrative Law Judge. 

[FR Doc. 2011–7390 Filed 3–29–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 09–12] 

Bienvenido Tan, M.D.; Denial of 

Application 

On October 31, 2008, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Bienvenido Tan, M.D. 

(Respondent), of Newhall, California. 

The Show Cause Order proposed the 

denial of Respondent’s application for a 

DEA Certificate of Registration as a 

practitioner, on the ground that ‘‘his 

registration is inconsistent with the 

public interest.’’ ALJ Ex. 1, at 1. 

More specifically, the Show Cause 

Order alleged that on April 12, 2007, 

Respondent ‘‘voluntarily surrendered 

[his] controlled substances privileges’’ 

when he was under investigation for 

illegally distributing controlled 

substances, and that in February 2008, 

he had applied for a new registration. 

Id. The Order alleged that ‘‘[l]aw 

enforcement personnel conducted at 

least eleven (11) undercover visits’’ to 

Respondent’s office between October 

2006 and March 2007 and that on 

several occasions, he had prescribed 

Lorcet and Vicodin, schedule III 

controlled substances which contain 

hydrocodone, as well as alprazolam, a 

schedule IV controlled substance, to 

them ‘‘with cursory or no medical 

examinations, and without a legitimate 

medical purpose.’’ Id. (citing 21 CFR 

1306.04). 

The Show Cause Order further alleged 

that a medical expert had reviewed 

Respondent’s files and ‘‘found ‘strong 

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