                               UNPUBLISHED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    Review   of   an   Order   of   the   Drug    Enforcement
Agency. (11-66)


Submitted:   May 1, 2012                           Decided:     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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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   by   engaging    in    unprofessional     conduct,    showing

professional      incompetence,         and     prescribing        drugs     for

illegitimate medical purposes.              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 show-

cause 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).             Hooper responded that his

DEA   registration    should     be    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.                 The DA noted that no decision

“has   held    that    a     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.”                               (J.A.

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



                                          II.

              Under   the     Administrative          Procedure           Act,   5     U.S.C.

§ 706(2)(A),      “the      DA’s   choice       of    sanction          is    entitled    to

substantial     deference       and   will      be    set     aside       only   if    [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.                       Morall v. DEA, 412 F.3d

165,   183    (D.C.   Cir.     2005).      Likewise,         to     the      extent    Hooper

challenges      the    DA’s     interpretation          of    the        CSA,    the     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     substances          and     “requires           that    every

practitioner      who    dispenses       or     distributes           any    controlled

substances in connection with his practice obtain a certificate

of registration.”        Id. at 74.           Relevant here, the CSA permits

“practitioners”     to    receive       DEA     registration          for    dispensing

controlled     substances       “if     the    applicant         is    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    removal      of   that

dispensing power in certain situations. *                   Section 824 provides

for   the   suspension    or    revocation       of    a    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        may    be    suspended          or    revoked     pursuant      to

§ 824(a).      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       that    the        CSA    requires       revocation       of     a

practitioner’s      DEA     registration           when    the   practitioner’s      State

license is suspended.             Hooper contends that the DA’s conclusion

“reads the suspension option [in § 824(a)] out of the statute.”

(Petitioner’s Br. at 11).

              We   find    Hooper’s      contention         unconvincing.           Section

824(a)      does   state    that       the    DA     may    “suspend       or   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      is    not   an    unreasonable

                                              5
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,”        the    DA’s

decision represents longstanding practice.                     Morall, 412 F.3d at

183.    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    other       contentions        and

likewise find them without merit.               Accordingly, the petition for

review is denied.           We dispense with oral argument because the

facts   and    legal     contentions      are   adequately       presented      in   the

materials     before       the   court    and   argument       would    not   aid    the

decisional process.

                                                                   PETITION DENIED




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