James Hooper v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 11-66 Copies to all parties and the district court/agency. [998869456].. [11-2351]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2351

JAMES L. HOOPER, M.D.,
Petitioner,
v.
ERIC H. HOLDER, JR.; UNITED STATES DEPARTMENT OF JUSTICE
DRUG ENFORCEMENT ADMINISTRATION; MICHELLE M. LEONHART,
Administrator, United States Department of Justice, Drug
Enforcement Administration,
Respondents.

On Petition for
Agency. (11-66)

Submitted:

Review

May 1, 2012

of

an

Order

of

the

Drug

Decided:

Enforcement

June 6, 2012

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Allen H. Sachsel, Fairfax, Virginia, for Petitioner.
Lanny A.
Breuer, Assistant Attorney General, Anita J. Gay, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James L. Hooper, M.D., petitions for review of a Drug
Enforcement Agency (DEA) order revoking his DEA registration for
controlled substances.

We deny the petition for review.

I.
In

November

2010,

the

Maryland

State

Board

of

Physicians charged Hooper with violating the Maryland Medical
Practice

Act

professional

by

engaging

in

unprofessional

incompetence,

and

illegitimate medical purposes.

conduct,

prescribing

showing

drugs

for

In May 2011, Hooper entered a

consent agreement with the Board, acknowledging violations of
the Act and agreeing to a one-year suspension of his medical
license beginning June 7, 2011.

Pursuant to this agreement,

Hooper was also placed on a minimum of two years of probation
following the suspension.
Based on Hooper’s suspension, the DEA issued a showcause order asking whether his DEA registration for controlled
substances should be revoked under the Controlled Substances Act
(CSA), 21 U.S.C. § 824(a)(3) & (4).
DEA

registration

should

be

Hooper responded that his

suspended

but

not

revoked.

An

Administrative Law Judge granted summary disposition in favor of
the DEA and recommended revocation of Hooper’s registration “in
view of the presently uncontroverted fact that [Hooper] lacks
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state authority to handle controlled substances.”

(J.A. 53-54).

The DEA Administrator (DA) adopted the ALJ’s recommendation and
revoked Hooper’s registration.
“has

held

that

a

The DA noted that no decision

suspension

(rather

than

a

revocation)

is

warranted where a State has imposed a suspension of a fixed or
certain

duration,”

and

the

“DEA

has

long

and

consistently

interpreted the CSA as mandating the possession of authority
under state law to handle controlled substance as a fundamental
condition for obtaining and maintaining a registration.”
61).

(J.A.

Hooper now petitions for review of the DA’s order.

II.
Under
§ 706(2)(A),
substantial

the

“the

Administrative
DA’s

deference

choice

and

Procedure

of

sanction

be

will

set

Act,
is

aside

5

U.S.C.

entitled

only

if

to

[the]

decision is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’”

Chein v. DEA, 533 F.3d

828, 835 (D.C. Cir. 2008) (quoting 5 U.S.C. § 706(2)(A)).

If

the DA’s sanction is a “flagrant departure from DEA policy and
practice,”

and

that

departure

is

“not

only

unexplained,

but

entirely unrecognized in the [DA’s] decision,” the DA’s sanction
will fail this deferential standard.
165,

183

challenges

(D.C.

Cir.

the

DA’s

2005).

Morall v. DEA, 412 F.3d

Likewise,

interpretation
3

of

to

the

the

extent

CSA,

the

Hooper
DA’s

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“construction of the controlling statute must be upheld if it is
sufficiently reasonable.”

Trawick v. DEA, 861 F.2d 72, 75 (4th

Cir. 1988).
The CSA sets forth a detailed regulatory framework for
handling

controlled

practitioner

who

substances

dispenses

and

or

“requires

distributes

that

any

every

controlled

substances in connection with his practice obtain a certificate
of registration.”
“practitioners”
controlled

to

Id. at 74.
receive

substances

“if

Relevant here, the CSA permits

DEA
the

registration
applicant

is

for

dispensing

authorized

to

dispense . . . controlled substances under the laws of the State
in which he practices.”

21 U.S.C. § 823(f).

The CSA defines a

“practitioner” as “a physician” who is “licensed, registered, or
otherwise permitted, by the United States or the jurisdiction in
which he practices . . . to distribute [or] dispense . . . a
controlled substance in the course of professional practice.”
21 U.S.C. § 802(21).
The

CSA

also

provides

for

the

dispensing power in certain situations. *
for

the

suspension

or

revocation

of

a

removal

of

that

Section 824 provides
registration

in

five

circumstances, one of which is that the registrant “has had his
*

Section 824’s sanction power is vested in the Attorney
General.
Pursuant to regulation, the Attorney General has
delegated this power to the DA. 28 C.F.R. § 0.100(b).

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State license or registration suspended, revoked, or denied by
competent State authority and is no longer authorized by State
law to engage in the . . . dispensing of controlled substances.”
21 U.S.C. § 824(a)(3).
In his petition for review, Hooper concedes that his
“State license” was “suspended” and does not dispute that his
DEA

registration

§ 824(a).

may

be

suspended

or

revoked

pursuant

to

He contends, however, that the DA’s decision in his

case failed to recognize the discretion under § 824(a) to revoke
or suspend a registration and that it was impermissible for the
DA

to

conclude

practitioner’s

that

DEA

the

CSA

registration

license is suspended.

requires

when

the

revocation

of

practitioner’s

a

State

Hooper contends that the DA’s conclusion

“reads the suspension option [in § 824(a)] out of the statute.”
(Petitioner’s Br. at 11).
We
824(a)

does

find

Hooper’s

state

that

contention

the

DA

may

unconvincing.
“suspend

or

Section
revoke”

a

registration, but the statute provides for this sanction in five
different circumstances, only one of which is loss of a State
license.

Because

§ 823(f)

and

§ 802(21)

make

clear

that

a

practitioner’s registration is dependent upon the practitioner
having state authority to dispense controlled substances, the
DA’s decision to construe § 824(a)(3) as mandating revocation
upon

suspension

of

a

state

license
5

is

not

an

unreasonable

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interpretation of the CSA.

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The DA’s decision does not “read[]

the suspension option” out of the statute, because that option
may still be available for the other circumstances enumerated in
§ 824(a).
In addition, the decision by the DA in Hooper’s case
is not arbitrary and capricious because, rather than being a
“flagrant

departure

from

DEA

policy

and

practice,”

decision represents longstanding practice.
183.

the

DA’s

Morall, 412 F.3d at

The DA has consistently found “that the CSA requires the

revocation

of

a

registration

issued

to

a

practitioner

whose

state license has been suspended or revoked . . . 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.”

Calvin Ramsey,

M.D., 76 Fed. Reg. 20034, 20036 (2011) (citations omitted).
We

have

reviewed

Hooper’s

likewise find them without merit.
review is denied.
facts

and

materials

legal
before

other

contentions

and

Accordingly, the petition for

We dispense with oral argument because the
contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
PETITION DENIED

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