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Plastic surgeon loses bid to block revocation process

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A controversial plastic surgeon has been rebuffed in his attempt to block an administrative process that could revoke his permit to prescribe controlled substances.

Dr. Wesley G. Harline, whom a national fashion magazine once dubbed "Dr. Do-It-All," last year filed a federal lawsuit challenging efforts by the Drug Enforcement Administration to revoke his registration.The DEA accused Harline in 1995 of failing to provide the agency with information on controlled substance prescriptions and prescribing medication for no legitimate medical reason.

At the time, the 77-year-old Ogden physician was facing state disciplinary action on similar charges and was embroiled in a number of malpractice lawsuits brought by some of his former breast implant patients.

Before his hearing on the DEA allegations, Harline filed a motion to disqualify the administrative law judge, Mary Ellen Bittner, because she was a DEA employee. He contended having a DEA employee ruling on DEA allegations would violate his right to a fair and impartial tribunal.

When his motion was denied, Harline filed a lawsuit in U.S. District Court. There, the DEA asked Chief Judge David Sam to dismiss the case for lack of jurisdiction. Sam concluded the court did have jurisdiction and then dismissed all of Harline's claims. Harline appealed.

In a ruling released Wednesday, the U.S. 10th Circuit Court of Appeals in Denver said the federal courts did lack jurisdiction and ordered Harline's lawsuit dismissed on that basis.

Writing for the three-judge panel, Judge Paul J. Kelly said Harline hadn't exhausted his administrative remedies, even though he was calling the fairness of those remedies into question.

Beyond alleging a bias because of Bittner's DEA job, Harline had presented "no facts whatsoever" that would show she is actually biased in the registration matter, Kelly said. If it were sufficient to show only an appearance of bias stemming from agency employment, administrative law judges would be forced to recuse themselves from every case, he added.

Harline had argued that the flaw in the system has been recognized in legislation that would create an independent corps of administrative law judges. While that may hint at room for improvements, any "structural shortcoming" in the process should be addressed to Congress rather than the courts, the judges said.

Besides the state and federal regulatory battles, Harline also waged a high-profile legal fight against Allure Magazine, which devoted an eight-page spread in its September 1995 issue to his Ogden practice.

Titled "Dr. Do-It-All," the article said, "At 74, Dr. Wesley Harline is still busy building bigger breasts and younger faces for pro cheerleaders, Vegas showgirls and porn stars. Some of the women are happy with his work. Some aren't."

A federal judge dismissed the libel lawsuit last year.