A Primer for Navigating the Murky, Drug-Infested Waters of Drug Diversion Administrative Revocation and Application Hearings

September 3, 2014

An article set to be published in the Albany Law Review in Spring 2015, titled “Drug Diversion Administrative Revocation and Application Hearings for Medical and Pharmacy Practitioners: A Primer for Navigating Murky, Drug-Infested Waters,” explores the increasingly complex and nuanced practice of administrative law before the Drug Enforcement Administration (“DEA”), and provides a “how to” manual of sorts for counsel undertaking the litigation of a DEA administrative enforcement. 

The article is coauthored by DEA Chief Administrative Law Judge John J. Mulrooney, II, and the latest addition to the ranks of Hyman, Phelps & McNamara, P.C., Andrew J. Hull, who previously served as a judicial law clerk to Chief Judge Mulrooney.  As the authors explain in their article:

One inexorable result of federal efforts to react reasonably to an immense growth in prescription medication dependence is an increasingly complex and nuanced practice of administrative law before the [DEA].  The practice has morphed into a more contested and complicated dynamic that now requires litigation and academic skills that far exceed those previously demanded.  Without an established manual or research resource currently available for this practice, even seasoned administrative practitioners can find themselves overwhelmed by well-trained and seasoned agency trial counsel, experts, and regulators.  Hardened litigators unprepared for the technical nuances of this sophisticated regulatory scheme can unwittingly blunder their clients into irreparable and draconian results.  This is a practice that now requires both skillful litigation and thoughtful study into the statutes, regulations, and precedents from both the agency and the courts of appeal that circumscribe the exercise of powerful discretionary authority that can wreak career-ending consequences on the members of the regulated community.

Chief Judge Mulrooney and Mr. Hull not only provide in their article a general overview of the proceedings and the body of law pertinent to administrative proceedings against medical and pharmacy practitioners, but they also discuss the various bases for revocation or suspension of a DEA license and examine the bases for denial of an application for a DEA license.  They don’t stop there, however.  The article also provides a helpful summary of the process surrounding immediate suspension cases (followed by a discussion of the burdens on the parties and the DEA’s exercise of discretion in sanctioning a party), and an examination of various pre-hearing, hearing, and post-hearing procedures.