5686 Federal Register / Vol. 65, No. 24 / Friday, February 4, 2000 / Notices

practicing addiction psychiatry. Judge

Randall also found it significant that

Respondent cooperated with law

enforcement by fully disclosing his

unlawful conduct, by providing

information against others, and by

assisting in undercover buys.

Therefore, the Deputy Administrator

agrees with Judge Randall that it would

not be in the public interest to deny

Respondent’s application. However

given the egregiousness of Respondent’s

past behavior, Judge Randall

recommended that restrictions be

imposed on Respondent’s registration

that would ‘‘add a measure of protection

to the public interest, while affording

[Respondent] the opportunity to

demonstrate his ability and willingness

to handle controlled substances

responsibly in his medical practice.’’

Judge Randall recommended that

Respondent’s application for

registration be granted subject to the

following restrictions:

(1) The Respondent must resubmit a

registration application reflecting his

‘‘Proposed Business Address’’ as

required by regulation;

(2) The Respondent be granted a

Certificate of Registration only for

Schedules III, IV and V;

(3) By not later than two years after

the date of the final order, the

Respondent shall submit to the local

DEA office evidence of successful

completion, after August of 1999, of

formal training in the proper handling

or prescribing of controlled substances.

Such training should be provided by an

accredited institution at the

Respondent’s own expense;

(4) For three years after the effective

date of the final order in this case, the

Respondent shall submit, on a quarterly

basis, a log of all of the controlled

substances he has prescribed,

administered or dispensed during the

previous quarter, to the Special Agent in

Charge of the nearest DEA office, or his

or her designee. The log should include:

the patient’s name; the date that the

controlled substance was prescribed,

administered or dispensed; and the

name, dosage and quantity of the

controlled substance prescribed,

administered or dispensed. If no

controlled substances are prescribed,

administered or dispensed during a

given quarter, the Respondent shall

indicate that fact in writing, in lieu of

submission of the log. Review of such a

log should provide adequate assurances

for his future responsible conduct as a

registrant.

The Deputy Administrator agrees with

Judge Randall that Respondent’s

application for registration should be

granted and that it is appropriate to

impose restrictions on such registration.

However, the Deputy Administrator

finds it unnecessary to require

Respondent to resubmit an application

listing his proper business address. At

the hearing in this matter, Respondent

requested that his application be

modified to reflect the address of his

current place of employment. The

Deputy Administrator finds that this

request is sufficient to modify his

application and a new application for

registration is not required. However, if

Respondent’s place of employment has

changed from that represented at the

hearing, a new written request for

modification of the address on his

application must be submitted.

In addition, the Deputy Administrator

disagrees with Judge Randall’s

recommendation that Respondent be

given two years to present evidence of

successful completion of formal training

in the proper handling or prescribing of

controlled substances. Given the nature

of Respondent’s past conduct, the

Deputy Administrator finds that it is in

the public interest for such training to

be completed within one year of being

issued his DEA registration.

Finally, the Deputy Administrator

believes that it is prudent to require

Respondent to continue his affiliation

with the PHP for three years regardless

of whether such affiliation is required

by the Board.

Therefore, the Deputy Administrator

concludes that Respondent should be

granted a DEA Certificate of Registration

in Schedules III, IV and V subject to the

following restrictions:

(1) By not later than one year after the

Certificate of Registration is issued,

Respondent shall submit to the DEA

office in Nashville, Tennessee evidence

of successful completion, after August

of 1999, of formal training in the proper

handling or prescribing of controlled

substances. Such training should be

provided by an accredited institution at

the Respondent’s own expense.

(2) For three years after the issuance

of the Certificate of Registration,

Respondent shall submit, on a quarterly

basis, a log of all of the controlled

substances he has prescribed,

administered, or dispensed during the

previous quarter, to the Resident Agent

in Charge of the DEA office in Nashville,

Tennessee, or his or her designee. The

log should include: The patient’s name;

the date that the controlled substance

was prescribed, administered or

dispensed; and the name, dosage and

quantity of the controlled substance

prescribed, administered, or dispensed.

If no controlled substances are

prescribed, administered or dispensed

during a given quarter, the Respondent

shall indicate that fact in writing, in lieu

of submission of the log.

(3) Respondent shall continue his

affiliation with the Tennessee Medical

Foundation’s Physicians’ Health

Program for at least three years from the

issuance of the Certificate of

Registration, regardless of whether such

affiliation is required by the Tennessee

Board of Medical Examiners.

Accordingly, the Deputy

administrator of the Drug Enforcement

Administration, pursuant to the

authority vested in him by 21 U.S.C. 823

and 824 and 28 CFR 0.100(b) and 0.104,

hereby orders that the application for

registration submitted by Michael Alan

Patterson, M.D., be, and it hereby is,

granted subject to the above described

restrictions. This order is effective upon

the issuance of the DEA Certificate of

Registration, but no later than March 6,

2000, and is the final agency action for

appellate purposes pursuant to 21

U.S.C. 877.

Dated: January 18, 2000.

Donnie R. Marshall,

Deputy Administrator.

[FR Doc. 00–2541 Filed 2–3–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 96–41]

Paul W. Saxton, D.O.; Denial of

Application for Fees and Expenses

Under the Equal Access to Justice Act

On July 15, 1996, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Paul W. Saxton, D.O.

(Respondent), proposing to revoke his

DEA Certificate of Registration

AS9420059, and to deny any pending

application for renewal of such

registration. The Order to Show Cause

alleged that Respondent’s continued

registration would be inconsistent with

the public interest pursuant to 21 U.S.C.

823(f) and 824(a)(4).

Following a lengthy hearing and posthearing filings, Administrative Law

Judge Gail A. Randall issued her

Recommended Rulings, Findings of

Fact, Conclusions of Law and Decision

on October 6, 1998, recommending that

no adverse action be taken against

Respondent’s DEA registration. On

November 5, 1998, Respondent’s

counsel filed an Application for

Attorney’s Fees and Expenses

(Application), under the Equal Access to

Justice Act, 28 U.S.C. 2412.

Federal Register / Vol. 65, No. 24 / Friday, February 4, 2000 / Notices 5687

On November 19, 1998, Judge Randall

transmitted the record, including

Respondent’s Application, to the thenActing Deputy Administrator for final

agency action. After a careful review of

the entire record, the Deputy

Administrator issued his final order in

this matter on May 3, 1999, adopting, in

full, the Administrative Law Judge’s

findings of fact and conclusions of law,

and continuing Respondent’s

registration without taking any adverse

action. See Paul W. Saxton, D.O., 64 FR

25073 (May 10, 1999). In his final order,

the Deputy Administrator denied

Respondent’s application for attorney’s

fees finding that Respondent’s

Application was premature because

‘‘such a request may only be filed after

a party has prevailed in an action

brought by DEA.’’ Id. at 25074.

On May 18, 1999, after issuance of the

final order, Respondent’s counsel filed a

letter requesting to renew his

Application filed on November 5, 1998,

since the agency’s final order had now

been entered. On June 17, 1999, the

Government filed an Answer in

Opposition to Respondent’s Application

for Attorneys’ Fees and Expenses Under

the Equal Access to Justice Act. Judge

Randall then provided Respondent an

opportunity to respond to the

Government’s submission, and on July

19, 1999, Respondent filed a Response

to the Government’s Answer.

On September 22, 1999, Judge Randall

issued her Supplemental Decision:

Recommended Decision, Findings and

Conclusions of the Administrative Law

Judge Concerning the Respondent’s

Application for Fees and Expenses

Under the Equal Access to Justice Act

(Supplemental Decision),

recommending that Respondent’s

Application be denied. Neither party

filed exceptions to Judge Randall’s

Supplemental Decision and on October

25, 1999, the record concerning

Respondent’s Application was

forwarded to the Deputy Administrator.

Pursuant to 28 CFR 24.307, the

‘‘decision of the adjudicative officer will

be reviewed to the extent permitted by

law by the Department in accordance

with the Department’s procedures for

the type of proceeding involved. The

Department will issue the final decision

on the application.’’ ‘‘Department’’ is

defined as ‘‘the relevant departmental

component which is conducting the

adversary adjudication (e.g., Drug

Enforcement Administration * * *.) ’’

See 28 CFR 24.102. Therefore, the

Deputy Administrator hereby issues his

final order based upon findings of fact

and conclusions of law as hereinafter set

forth. This final order replaces and

supersedes the final order issued on

December 22, 1999. The Deputy

Administrator adopts, in full, the

Supplemental Decision: Recommended

Decision, Findings and Conclusions of

the Administrative Law Judge

Concerning the Respondent’s

Application for Fees and Expenses

Under the Equal Access to Justice Act.

His adoption is in no manner

diminished by any recitation of facts,

issues and conclusions herein, or of any

failure to mention a matter of fact or

law.

The Deputy Administrator finds that

a party may file a claim for attorney’s

fees and other expenses under the Equal

Access to Justice Act (EAJA), 28 U.S.C.

2412. Pursuant to 5 U.S.C. 504(a)(1),

which incorporates the EAJA into the

Administrative Procedure Act, an

agency that conducts adversary

adjudications shall award fees and

expenses if: (1) The claimant is a

prevailing party in the underlying

action; (2) the position of the

Government was not substantially

justified; and (3) there were no special

circumstances that would make an

award against the Government unjust.

An administrative hearing to revoke a

DEA Certificate of Registration to

dispense controlled substances is

considered an ‘‘adversary adjudication’’

covered by the EAJA. See 28 CFR

24.103(a)(1).

The Deputy Administrator concludes

that Respondent is a prevailing party

and has therefore met the initial

qualifying threshold for an award of fees

and expenses under the EAJA. A

‘‘prevailing party’’ is one who can be

found to have essentially succeeded on

the claims for relief. See Brown v.

Secretary of Health and Human Servs.

747 F.2d 878, 883 (3rd Cir. 1984). In the

underlying matter upon which this

Application is based, Respondent

contended that his continued

registration would not be inconsistent

with the public interest, and that his

DEA registration should not be revoked.

The Deputy Administrator agreed with

Respondent and ordered that no adverse

action be taken against Respondent’s

DEA registration. See Saxton, 64 FR at

25080. Therefore, the Deputy

Administrator concludes that

Respondent has succeeded on his

claims for relief.

In addition, for a claimant to be

considered a prevailing party eligible for

an award of attorney’s fees and other

expenses the claimant must be an

individual whose net worth does not

exceed $2,000,000 at the time the

adversary adjudication was initiated.

See 5 U.S.C. 504(b)(1)(B). In his

Application, Respondent asserts that he

has a net worth of less than $2,000,000.

The Government does not dispute

Respondent’s assertion. Therefore, the

Deputy Administrator concludes that

Respondent has met the initial

threshold that he is a prevailing party

eligible for attorney’s fees and other

expenses under the EAJA.

Next, it must be determined whether

the position of the Government was

substantially justified. A presumption

exists that a prevailing party may

recover an EAJA award, unless the

position of the Government was

substantially justified. See 28 U.S.C.

2412(d)(1)(A); 28 CFR 24.106(a). Once

alleged by the claimant that the position

of the Government was not substantially

justified, the burden of proof shifts to

the Government to demonstrate by a

preponderance of the evidence that its

position was substantially justified and

that attorney’s fees and other expenses

should not be awarded. See United

States v. One Parcel of Real Property,

960 F.2d 200, 208 (1st Cir. 1992).

The ‘‘position of the United States’’ is

defined as being that position ‘‘in

addition to the position taken by the

United States in the civil action, the

action or failure to act by the agency

upon which the civil action is based.’’

28 U.S.C. 2412(d)(2)(D). Although

‘‘position’’ encompasses the

Government’s prelitigation conduct and

subsequent litigation position, only one

determination of substantial

justification to the entire matter should

be made. See Commissioner, INS v.

Jean, 496 U.S. 154, 160–62 (1990)

(‘‘While the parties’ postures on

individual matters may be more or less

justified, the EAJA—like other feeshifting statutes—favors treating a case

as an inclusive whole, rather than as

atomized line-items.’’) Therefore, the

Deputy Administrator concludes that

the Government’s position as a whole

must be considered in determining

whether there was substantial

justification for that position.

The test for substantial justification is

whether a reasonable person would find

that the Government’s position was

reasonable in both fact and law. See

Derickson Co. v. NLRB, 774 F.2d 229,

232 (8th Cir. 1985); Enerhaul, Inc. v.

NLRB, 710 F.2d 748, 750, reh’g denied,

718 F.2d 1115 (11th Cir. 1983); see also

H.R. Conf. Rep. No. 96–1434 at 22

(1980). To meet its burden of

demonstrating the substantial

justification for its position, the

Government must make a ‘‘strong

showing’’ and must demonstrate that it

‘‘had a reasonable basis for the facts

alleged, that it had a reasonable basis in

law for the theories it advanced, and

that the former supported the latter.’’

One Parcel of Real Property, 960 F.2d at

5688 Federal Register / Vol. 65, No. 24 / Friday, February 4, 2000 / Notices

208 (quoting Sierra Club v. Secretary of

the Army, 820 R.2d 513, 517 (1st Cir.

1987)).

Also, it is noteworthy that pursuant to

28 CFR 24.105(c), ‘‘[n]o presumption

arises that the agency’s position was not

substantially justified simply because

the agency did not prevail.’’ See also,

Griffon v. Department of Health and

Human Servs., 832 F.2d 51, 52 (5th Cir.

1987). As Judge Randall noted, ‘‘the

government may demonstrate that its

position was substantially justified,

even though it was a losing one.’’

In this case, the Deputy Administrator

agrees with Judge Randall’s conclusion

that ‘‘an evaluation of the record as a

whole supports the position that the

Government was substantially justified

in initiating and pursuing the

underlying cause of action.’’ As noted

by Judge Randall, ‘‘the final order

recognized, ‘[w]ithout a doubt, the

Government had legitimate concerns as

a result of its initial investigation of the

Respondent and his prescribing

practices‘ ’’ See Saxton, 64 FR at 25079.

Judge Randall concluded that both the

Government and Respondent incorrectly

reargued the evidence regarding each of

the five public interest factors in

asserting whether the Government’s

position was substantially justified. The

test is not whether each individual

litigated claim was substantially

justified, but rather oversell, whether

the Government’s litigation and

prelitigation position was substantially

justified. See Jean, 496 U.S. at 160–62.

As further support, the Government’s

‘‘position,’’ in the singular, suggests that

only one finding concerning substantial

justification need by made. See id. at

159. After evaluating the record in this

matter, Judge Randall concluded ‘‘that

in the eyes of a reasonable person, the

Government’s position was reasonable

both in fact and in law.’’

The state agency responsible for

regulating health-care professionals had

received complaints over the years

regarding Respondent’s prescribing

practices. An initial evaluation of

patient profiles showed that

Respondent’s prescribing practices

exceeded the recognized prescribing

standards established by the Physician’s

Desk Reference (PDR). While the PDR

does not establish binding standards on

physicians, exceeding those standards is

a sufficient indicator that further

investigation into the physician’s

prescribing is warranted. See Saxton, 64

FR at 25078; see also Margaret E. Sarver,

M.D., 61 FR 57896, 57900 (1996). An

expert in pain management reviewed

Respondent’s prescribing patterns and

patient charts for the Government and

found ‘‘consistent patterns supporting

the contention that [Respondent] has

been inappropriately and excessively

prescribing controlled substances,

particularly opioids.’’ See Saxton, 64 FR

at 25074. Also, Respondent failed to

inventory his controlled substances

properly and failed to retain the

required records needed to ensure

accountability for the controlled

substances maintained and dispensed in

his medical practice. See id. at 25079.

Failure to maintain proper records has

previously been a basis for revocation of

a DEA Certificate of Registration. See

Farmacia Ortiz, 61 FR 726, 727–728

(1996); Harlan J. Borcherding, D.O., 60

FR 28796, 28798 (1995). Finally, at the

time the Government initiated its action

against Respondent, it had evidence that

Respondent had prescribed anabolic

steroids for muscle enhancement in

violation of state and Federal law. See

Saxton, 64 FR at 25074, 25079.

Thus, the Deputy Administrator finds

that the Government was substantially

justified in pursuing the revocation of

Respondent’s DEA Certificate of

Registration. Respondent ultimately

prevailed because of the evidence that

he presented at the hearing.

Respondent presented evidence that

the medical community was in

disagreement over the use of controlled

substances in the treatment of chronic

pain patients. Respondent’s two experts

testified that Respondent’s method of

pain management was a medically

recognized form of chronic pain

treatment. See id. at 25075. As Judge

Randall stated, ‘‘[t]he Respondent

prevailed only after exploring and

presenting evidence on the split in the

medical community concerning the

prescribing of controlled substances for

chronic pain. The Respondent’s

witnesses were found to be more

persuasive than those of the

Government; yet, this does not mean

that the Government was not

substantially justified in its position or

its case presentation.’’

As to Respondent’s recordkeeping

violations, the Deputy Administrator

concluded that revocation was not

warranted not because the Government

failed to prove its case, but because

Respondent presented significant

evidence of rehabilitation and remedial

training. See id. at 25079. Judge Randall

noted that ‘‘this evidence does not

eradicate the Respondent’s prior

wrongdoing, on which the

Government’s position was based;

rather, this evidence of remedial action

merely added weight in favor of the

Respondent and enabled the Deputy

Administrator, in his discretionary

authority, to find for the Respondent.’’

Regarding Respondent’s illegal

prescribing of anabolic steroids, the

Deputy Administrator agrees with Judge

Randall that ‘‘Respondent ultimately

prevailed, not because the Government

failed to prove its case, but because the

Deputy Administrator, in his

discretionary authority, found

persuasive the Respondent’s

rehabilitation evidence that he had

ceased his unlawful prescribing of

anabolic steroids.’’

Therefore, Judge Randall found that

‘‘the Government’s actions in preparing

and pursuing the revocation of the

Respondent’s DEA Certificate of

Registration were substantially

justified.’’ The Deputy Administrator

agrees. While Respondent ultimately

prevailed in the underlying matter, the

Government’s position was reasonable

and therefore substantially justified.

The Deputy Administrator finds that

neither party alleged that special

circumstances exist that would make an

award of attorney’s fees and other

expenses under the EAJA unjust.

Judge Randall noted that the parties

argued about the appropriate amount of

attorney’s fees to be awarded. However,

Judge Randall found it unnecessary to

decide this issue since she found that

the Government’s position was

substantially justified and therefore

recommended that no fees be awarded.

The Deputy Administrator agrees.

While Respondent ultimately prevailed

and his registration was not revoked, the

Government’s position was substantially

justified. Therefore, Respondent’s

application for attorney’s fees and other

expenses must be denied.

Accordingly, the Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

authority vested in him by 28 U.S.C.

2412, 5 U.S.C. 504, and 28 CFR 24.307,

0.100(b) and 0.104 hereby orders that

the Application for Fees and Expenses

under the Equal Access to Justice Act

submitted by Paul W. Saxton, D.O., be,

and it hereby is, denied. This final order

is considered the final agency action for

purposes of appellate review pursuant

to 5 U.S.C. 504(c)(2) and 21 U.S.C. 877.

Dated: January 18, 2000.

Donnie R. Marshall,

Deputy Administrator.

[FR Doc. 00–2535 Filed 2–3–00; 8:45 am]

BILLING CODE 4410–09–M