James Hooper v. Eric Holder, Jr., No. 11-2351 (4th Cir. 2012)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2351 JAMES L. HOOPER, M.D., Petitioner, v. ERIC H. HOLDER, JR.; UNITED STATES DEPARTMENT OF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 Petition denied by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 2 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 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). 4 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 interpretation of the CSA. 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 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.