82 FR 18669 - Richard Jay Blackburn, D.O.; Decision and Order
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 82, Issue 75 (April 20, 2017)
Drug Enforcement Administration
Federal Register Volume 82, Issue 75 (April 20, 2017)
| Page Range | 18669-18673 | |
| FR Document | 2017-08014 |
[Federal Register Volume 82, Number 75 (Thursday, April 20, 2017)] [Notices] [Pages 18669-18673] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-08014] [[Page 18669]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 17-6] Richard Jay Blackburn, D.O.; Decision and Order On September 27, 2016, the Assistant Administrator, Diversion Control Division, issued an Order to Show Cause to Richard Jay Blackburn, D.O. (Respondent), of Ravenwood, West Virginia. Show Cause Order, at 1. The Show Cause Order proposed the denial of Respondent's application for a DEA Certificate of Registration as a practitioner on two grounds. First, the Order alleged that Respondent does not possess authority to dispense controlled substances in West Virginia, the State in which he has applied for a DEA registration. Id. (citing 21 U.S.C. 824(a)(3)). Second, the Order alleged that Respondent materially falsified his application for a DEA registration. Id. (citing 21 U.S.C. 824(a)(1)). As for the jurisdictional basis of the proceeding, the Show Cause Order alleged that Respondent had previously held Certificate of Registration BB5953686 for schedule II through V controlled substances, at the address of Equinox LLC, d/b/a Medex PLC, 705 Washington St., Ravenwood, West Virginia, that this registration expired on July 31, 2016, and that Respondent did not file a timely renewal application. Id. The Order then alleged that on August 31, 2016, Respondent submitted an application to renew the above registration, and that as the registration had expired and could not be renewed, his application is ``being treated'' as an ``application for a new DEA registration.'' Id. at 2. As to the loss of state authority grounds for denial, the Show Cause Order alleged that on October 20, 2014, the West Virginia Board of Osteopathic Medicine filed a complaint alleging that Respondent had ``engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public by pre-signing prescriptions and allowing [office] employees to complete the rest of the information in violation of 24 C.S.R. 1.18.1.cc.'' Id. The Order then alleged that on June 1, 2016, Respondent surrendered his osteopath's license ``[t]o avoid a hearing on the merits of'' the Board's complaint. Id. The Order thus alleged that ``[o]n June 15, 2016, the Board accept [his] surrender, ordering [his] medical license null and void,'' and that ``[a]s a result, [Respondent] currently lack[s] authority to handle controlled substances in West Virginia, the [S]tate in which [he is] registered with . . . DEA.'' Id. (citing 21 U.S.C. 802(21) and 824(a)(3)). As to the material falsification grounds, the Show Cause Order alleged that the application stated that: ``You MUST be currently authorized to prescribe, distribute, dispense, conduct research, or otherwise handle controlled substances in the schedules for which you are applying under the laws of the state or jurisdiction in which you are operating or propose to operate.'' Id. The Order alleged that on his application, Respondent represented that he ``currently possessed medical license number `34.006104,' issued by the [S]tate of West Virginia,'' when this license number was not issued by West Virginia but was ``issued by the [S]tate of Ohio,'' and that his representation that this license ``was issued by a West Virginia authority was a materially false representation.'' Id. (citing 21 U.S.C. 824(a)(1) and 843(a)(4)(A)). The Show Cause Order then alleged that Respondent provided additional false information on his application ``by claiming that [his] West Virginia state license was valid until July 1, 2017, when in fact [this] license was ordered null and void on June 15, 2016.'' Id. at 3 (citations omitted). The Order further alleged that Respondent provided still more false information when he provided a ``No'' answer to the application's question: ``Has the applicant ever surrendered (for cause) or had a state professional license or controlled substance registration revoked[,] suspended, denied, restricted, or placed on probation, or is any such action pending?'' Id. The Order alleged that this information was false because he had surrendered his medical license for cause on June 1, 2016. Id. (citations omitted).\1\ --------------------------------------------------------------------------- \1\ The Show Cause Order also notified Respondent of his right to request a hearing on the allegations or to submit a written statement while waiving his right to a hearing, the procedure for electing either option, and the consequence of failing to elect either option. Show Cause Order at 3-4. In addition, the Show Cause Order notified Respondent of his right to submit a Corrective Action Plan, see 21 U.S.C. 824(c)(2)(C), and the procedure for doing so. --------------------------------------------------------------------------- On October 19, 2016, the Show Cause Order was served on Respondent, and on October 31, 2016, Respondent requested a hearing on the allegations. The matter was placed on the docket of the Office of Administrative Law Judges and assigned to ALJ Charles Wm. Dorman. Thereafter, the ALJ ordered the Government to file evidence supporting the allegation that Respondent lacks state authority and its accompanying motion no later than 2 p.m. on November 28, 2016. Briefing Schedule for Lack of State Authority Allegations, at 1. In the same order, the ALJ directed that if the Government moved for summary disposition, Respondent's reply was due by 2 p.m. on December 9, 2016.\2\ Id. --------------------------------------------------------------------------- \2\ In the same order, the ALJ, noting that the Government had not filed a certificate of service, directed the Government to provide evidence as to when the Show Cause Order was served. As the Government represented that service was not accomplished until October 19, 2016, Respondent's hearing request was timely. See Gov. Notice of Service of Order to Show Cause, at 1. In its filing, the Government also noted that while it would comply with the ALJ's Order with respect to the loss of state authority allegations, it was requesting a hearing ``on those allegations unrelated to Respondent's lack of state authority'' because ``the OSC contains allegations that are not amenable to resolution via summary disposition.'' Id. --------------------------------------------------------------------------- On November 28, 2016, the Government filed a ``Motion for Partial Summary Disposition.'' Therein, the Government sought summary disposition on both the issues of whether ``Respondent lacks state authority in West Virginia'' and whether he ``materially falsified his [a]pplication.'' Motion for Partial Summ. Disp., at 1. The Government also requested the ``opportunity to reply to any dispute regarding the material facts at issue.'' Id. As support for granting its motion on the lack of state authority ground, the Government attached a copy of the October 20, 2014 Complaint issued by the West Virginia Board of Osteopathic Medicine to Respondent, which made the allegation referenced in the Show Cause Order. Attachment 1 to Motion for Partial Summ. Disp., at 1. As further support for its motion, the Government attached a copy of a letter from the attorney who represented Respondent in the West Virginia Board matter addressed to Ms. Jennifer K. Akers, Assistant Attorney General, West Virginia Board of Osteopathic Medicine. Attachment 2, at 1. The letter, which makes reference to the Board's complaint, states that Respondent ``hereby surrenders his license to practice medicine in the [S]tate of West Virginia'' and expresses his counsel's ``understanding that the hearing on June 9th will be cancelled.'' Id. Of further note, the letter indicates that a copy was provided to Respondent. The Government also attached the Board's ``Order Accepting Surrender of License.'' Attachment 3, at 1. The Order states that ``[o]n June 6, 2016, [it] considered the above styled complaint and Respondent's offer via letter dated June 1, 2016, to surrender his license to practice osteopathic medicine in lieu of further proceedings before the Board, including the June 9, 2016, administrative hearing.'' Id. (emphasis [[Page 18670]] added). The Order also states that ``after consideration of the facts and circumstances and the representation of Respondent, the Board does hereby accept the Respondent's voluntary surrender of his license to practice osteopathic medicine in the [S]tate of West Virginia.'' Id. The Order, which is dated June 15, 2016, further states that ``[i]t is further ordered that the license number 1455 previously issued by the Board to [Respondent] is and shall henceforth be null and void.'' Id. Finally, the Government attached a printout dated November 23, 2016 from the Board's License Verification Web page. Attachment 4, at 1-2. The printout lists the status of Respondent's license as ``[e]xpired'' with an expiration date of June 15, 2016; it also lists Respondent's state controlled substance license number as having an expiration date of June 30, 2016.\3\ Id. at 1. --------------------------------------------------------------------------- \3\ As additional exhibits, the Government included a copy of Respondent's expired DEA registration, Appendix A, a Certification of Registration History, Appendix C, and a Declaration from a DEA Special Agent (S/A), who was the lead Special Agent, and who attested to the authenticity of the various documents submitted as Attachments 1-4. Appendix B, at 1-2. --------------------------------------------------------------------------- In its motion, the Government argued that ``there is no dispute that Respondent lacks state authority to handle controlled substances in West Virginia.'' Motion for Partial Summ. Disp., at 6. It cited multiple authorities in support of its contention that Respondent's application should be denied because he does not have authority to dispense controlled substances in West Virginia, the State in which he applied for registration. Id. at 4-6 (citations omitted). As noted above, the Government also sought summary disposition on the allegation that Respondent materially falsified his application. Id. The Government argued that there is no dispute that Respondent ``answered `No' to the [application] question of whether he had ever surrendered (for cause) a state medical license,'' contending that ``[t]his answer is clearly false.'' Id. The Government also argued that there is no dispute that ``surrender was `for cause' '' as ``the surrender letter explicitly requested confirmation that a state medical board hearing on the allegations against [him] would be cancelled.'' Id. at 6. And the Government maintained that Respondent's false answer was material as it was ``capable of affecting the decision of whether to grant [the] application.'' Id. at 7 (citing Mikhayl Soliman, 81 FR 47826, 47829 (2016)); see also id. (citing Kungys v. United States, 485 U.S. 759, 770 (1988) (other citation omitted); United States v. Wells, 5198 U.S. 482, 489 (1997) (quoting Kungys, 485 U.S. at 770)). Respondent did not file a reply to the Government's motion. Order Granting Summ. Disposition and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision (R.D.), at 2-3. The ALJ thus deemed the Government's motion as unopposed. Id. at 3. Finding it ``undisputed that the Respondent lacks state authorization to handle controlled substances in West Virginia, the [S]tate in which [he] seeks to be registered with the'' Agency, the ALJ applied the Agency's longstanding rule that ``in order to maintain a DEA registration, a registrant must possess state authority to dispense controlled substances,'' and granted the Government's motion with respect to this ground. Id. at 3- 4. The ALJ, however, declined to grant the Government's motion as to the material falsification ground. See id. at 4 n.3. The basis of the ALJ's declination was that in ``[i]n his Request for Hearing, the Respondent specifically asserted that `any irregularities in his application were done by mistake.' '' Id. (quoting Resp. Hearing Req., at 2). The ALJ explained that ``[b]ecause the Respondent specifically denied the material falsification allegation, I decline to make any determination concerning the Government's allegation that the Respondent materially falsified his current . . . application.'' Id. The Government took exception to the ALJ's declination to rule on the material falsification allegation. See Gov. Exceptions to Order Granting Summary Disposition Motion. It argues that ``[i]t is indisputable that Respondent surrendered his state medical license as a consequence of the'' complaint brought against him by the West Virginia Board. Id. at 4. It then argues that it is undisputed that Respondent answered ``No'' to the application question: ``Has the applicant ever surrendered (for cause) or had a professional license or controlled substance registration suspended, denied, restricted, or placed on probation, or is any such action pending?'' Id. at 4-5. And the Government argues that there is no dispute that Respondent's answer was false. Id. at 5. Continuing, the Government argues that while the evidence shows that Respondent's West Virginia license number was 1455, Respondent listed on the application that he held State License Number 34.006104, and that the State of issuance was West Virginia. Id. It then argues that ``when Respondent filed his Application, he was without any authority in West Virginia to handle controlled substances, meaning that any number he provided to DEA purporting to indicate he was authorized to practice medicine in West Virginia would be a material falsification'' of his application. Id. at 6. The Government further argues that the ALJ erred because his ``Briefing Order directed the Government to address the lack of state authority allegations without opportunity to be heard on its material falsification allegations,'' noting that it ``also included evidence in its Motion for Partial Summary Disposition on Respondent's material falsification.'' Id. The Government argues that the ALJ ``did not consider evidence on Respondent's material falsification, nor did [he] address the Government's request for findings as to those facts'' and that it ``is entitled to be heard on its allegations of misconduct.'' Id. at 6-7. The Government then argues that ``although the ALJ[ ] did not address this evidence or consider it as grounds for denying Respondent's application, [I] should make findings that Respondent materially falsified his Application and those findings should be the primary basis for any denial of Respondent's Application.'' Id. at 7. The Government thus requests that I either ``issue a final order finding that Respondent provided materially false information in his [a]pplication'' and cite this as a basis for denying his application, or remand the matter ``to the ALJ to make findings and give the Government [the] opportunity to be heard on the'' material falsification allegations. Id. at 10. Having considered the entire record, including the ALJ's Recommended Decision, I adopt the ALJ's finding that ``Respondent lacks state authorization to handle controlled substances in West Virginia, the [S]tate in which the Respondent seeks to be registered with the DEA.'' R.D. 3. I further adopt the ALJ's recommendation that I deny his application for this reason. Id. As for the Government's Exceptions, notwithstanding that it initially took the position that the material falsification allegations ``are not amenable to resolution via summary disposition,'' for reasons explained below, I agree with the Government that it was entitled to summary disposition on this ground as well. I make the following factual findings. Findings of Fact Respondent is an osteopathic physician who previously held License No. 1455 issued by the West Virginia Board of Osteopathic Medicine. Gov. Mot. for Partial Summ. Disp., at Attachment 1. However, on October 20, [[Page 18671]] 2014, the Board issued Respondent a complaint alleging that he ``engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public by pre-signing prescriptions and allowing employees in his office to complete the rest of the information in violation of 24 C.S.R. 1.18.1cc.'' Id. On June 1, 2016, Respondent's counsel wrote to an Assistant Attorney General for the Board by which Respondent ``surrender[ed] his license to practice medicine in the [S]tate of West Virginia.'' Attachment 2. Respondent's counsel further noted that ``[i]t is my understanding that the hearing on June 9th will be cancelled.'' Id. Respondent's counsel sent a copy of his letter to Respondent. Id. On June 6, 2016, the Board considered the complaint it had issued to Respondent and his ``offer via letter dated June 1, 2016, to surrender his license to practice osteopathic medicine in lieu of further proceedings before the Board, including the June 9, 2016 administrative hearing.'' Attachment 3. By Order entered on June 15, 2016, the Board accepted ``the Respondent's voluntary surrender of his license to practice osteopathic medicine in the [S]tate of West Virginia'' and ordered that his license ``shall henceforth be null and void.'' Id. Respondent's license remains in this status as of the date of this Decision and Order. Attachment 4. Respondent previously held DEA Certificate of Registration No. BB5953686, pursuant to which he was authorized to dispense controlled substances in schedules II through V, at the registered location of Equinox, LLC, d/b/a Medex, PLLC, 705 Washington St., Ravenswood, West Virginia. Appendix A. This registration expired on July 31, 2016. Id. On August 31, 2016, Respondent applied for a practitioner's registration seeking authority to dispense controlled substances in schedules II through V, at the same address as where he was previously registered. In section four of the application, Respondent was asked: ``Are you currently authorized to prescribe, distribute, dispense, conduct research, or otherwise handle the controlled substances in the schedules for which you are applying under the laws of the state or jurisdiction in which you are operating or proposing to operate?'' Appendix C, at 3. This question then required Respondent to provide his ``State License No.,'' the State, and the ``Expire Date'' of his license. Id. Respondent answered these questions, listing ``34.006104'' as his license number, ``WV'' or West Virginia as the State, and ``07- 01-2017'' as the expiration date of his license. Id. I find that each of these answers was false, as Respondent no longer held a West Virginia license as of the date he applied for registration and was no longer then ``currently authorized to prescribe . . . dispenser, or otherwise handle . . . controlled substances'' in West Virginia. On the application, Respondent was also required to answer four questions. Question Three asked: ``Has the applicant ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted, or placed on probation, or is any such action pending?'' Id. Respondent answered: ``N'' for no. I find that this answer was false. Discussion Section 303(f) of the Controlled Substances Act provides that ``[t]he Attorney General shall register practitioners . . . to dispense . . . controlled substances in schedules II, III, IV, or V, . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the States in which he practices.'' Section 303(f) further provides that ``[t]he Attorney General may deny an application for such registration . . . if the Attorney General determines that the issuance of such registration would be inconsistent with the public interest.'' 21 U.S.C. 823(f). In making the public interest determination, the CSA requires the consideration of the following factors: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The Applicant's experience in dispensing * * * controlled substances. (3) The Applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety. Id. ``These factors are . . . considered in the disjunctive.'' Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or a combination of factors, and may give each factor the weight [I] deem[ ] appropriate in determining whether . . . an application for registration [should be] denied.'' Id. Moreover, while I am required to consider each of the factors, I ``need not make explicit findings as to each one.'' MacKay v. DEA, 664 F.3d 808, 816 (10th Cir. 2011) (quoting Volkman, 567 F.3d 215, 222 (6th Cir. 2009) (quoting Hoxie, 419 F.3d 477, 482 (6th Cir. 2005))).\4\ --------------------------------------------------------------------------- \4\ ``In short, this is not a contest in which score is kept; the Agency is not required to mechanically count up the factors and determine how many favor the Government and how many favor the registrant. Rather, it is an inquiry which focuses on protecting the public interest; what matters is the seriousness of the registrant's misconduct.'' Jayam Krishna-Iyer, 74 FR 459, 462 (2009). --------------------------------------------------------------------------- Also, pursuant to section 304(a)(1), the Attorney General is authorized to suspend or revoke a registration ``upon a finding that the registrant . . . has materially falsified any application filed pursuant to or required by this subchapter.'' 21 U.S.C. 824(a)(1). And consistent with the implicit authority to deny an application for a practitioner's registration if the applicant is not ``authorized to dispense . . . controlled substances under the laws of the State in which he practices,'' section 304(a)(3) explicitly authorizes the Attorney General to suspend or revoke a registration ``upon a finding that the registrant . . . has had his State license or registration suspended, revoked, or denied by competent State authority and is longer authorized by State law to engage in the . . . distribution or dispensing of controlled substances.'' Id. Sec. 824(a)(3). It is well established that the various grounds for revocation or suspension of an existing registration that Congress enumerated in section 304(a), 21 U.S.C. 824(a), are also properly considered in deciding whether to grant or deny an application under section 303. See The Lawsons, Inc., 72 FR 74334, 74337 (2007); Anthony D. Funches, 64 FR 14267, 14268 (1999); Alan R. Schankman, 63 FR 45260 (1998); Kuen H. Chen, 58 FR 65401, 65402 (1993). Thus, both the allegation that Respondent materially falsified his application and the allegation that he is not authorized to dispense controlled substances in West Virginia, the State in which he seeks registration, are properly considered in this proceeding and each provides an independent and adequate ground for denying an application. See Samuel S. Jackson, 72 FR 23848, 23852 (2007); The Lawsons, 72 FR at 74338; cf. Bobby Watts, M.D., 58 FR 46995 (1993). The Government has ``[t]he burden of proving that the requirements for . . . registration . . . are not satisfied.'' 21 CFR 1301.44(d). Having considered the record including the ALJ's R.D., and the Government's Exceptions, I conclude that the Government was entitled to summary disposition on both grounds. Because Respondent did not file an opposition to the Government's motion with respect to either ground, nor a response to the Government's [[Page 18672]] Exceptions, I conclude that Respondent has waived his right to present evidence refuting both the Government's prima facie showing on the material falsification ground as well as on the issue of remediation.\5\ Therefore, I deny his application. --------------------------------------------------------------------------- \5\ Because the CSA requires that a practitioner possess state authority in order to be registered as a practitioner, where the Government's case is based solely on a practitioner's lack of state authority, evidence of remediation is irrelevant. --------------------------------------------------------------------------- Respondent's Lack of State Authority Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in ``the jurisdiction in which he practices'' in order to obtain and maintain a DEA registration. This rule derives from two provisions of the CSA. See 21 U.S.C. 802(21) (``[t]he term `practitioner' means a physician . . . licensed, registered, or otherwise permitted, by . . . the jurisdiction in which he practices . . . to distribute, dispense, [or] administer . . . a controlled substance in the course of professional practice''). See also id. Sec. 823(f) (``The Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.''). Thus, DEA has long held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration. See, e.g., Frederick Marsh Blanton, 43 FR 27616, 27617 (1978) (``State authorization to dispense or otherwise handle controlled substances is a prerequisite to the issuance and maintenance of a Federal controlled substances registration.''); see also James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); 21 U.S.C. 824(a)(3). Here, it is undisputed that Respondent surrendered his West Virginia osteopathic license and is thus no longer authorized to dispense controlled substances in the State in which he has applied for registration. Accordingly, Respondent does not meet the CSA's essential prerequisite for obtaining a practitioner's registration. This provides reason alone to deny his application. See 21 U.S.C. 823(f), 824(a)(3), 802(21). The Material Falsification As explained above, the ALJ declined to rule on the Government's motion for summary disposition with respect to the material falsification allegation, reasoning that in his hearing request, Respondent's counsel ``asserted that `any irregularities in his application were done by mistake.' '' R.D. 4 n.3 (quoting Resp. Hrng. Req., at 2). I disagree with the ALJ that this assertion, which was unsupported by any evidence, is sufficient to create a triable issue of fact and conclude that the Government was entitled to summary disposition on this issue as well. As I explained in Rezik A. Saqer, 81 FR 22122 (2016), ``numerous courts, including the Supreme Court, have held that even when a statute directs an agency to provide a party with a hearing, the agency can nonetheless resolve the matter on summary disposition when there are no material facts in dispute.'' Id. at 22124 (citing Veg-Mix, Inc. v. Department of Agriculture, 832 F.2d 601, 607 (D.C. Cir. 1987)). As the D.C. Circuit explained in Veg-Mix, ``[c]ommon sense suggests the futility of hearings where there is no factual dispute of substance.'' 832 F.2d at 607. See also NLRB v. International Ass'n of Bridge, Structural and Ornamental Ironworkers, 549 F.2d 634, 639 (9th Cir. 1977) (`` `It is settled law that when no fact question is involved or the facts are agreed, a plenary, adversary administrative proceeding involving evidence, cross-examination of witnesses, etc., is not obligatory, even though a pertinent statute prescribes a hearing.' '') (quoting United States v. Consolidated Mines & Smelting Co., Ltd., 455 F.2d 432, 453 (9th Cir. 1971)). As found above, the evidence shows that Respondent surrendered his state license in response to the complaint filed by the State Board and to avoid going to a hearing on the allegations. Thus, Respondent clearly surrendered his license ``for cause'' within the meaning of the application question which asked if he had ``ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted, or placed on probation, or is any such action pending?'' Cf. JM Pharmacy Group, Inc., d/b/a Farmacia Nueva and Best Pharma Corp., 80 FR 28667, 28668-69 (2015) (holding that pharmacy surrendered its registration ``for cause'' when its principal did so in response to allegations of misconduct and was advised that if he did not surrender, the Agency would ``initiate proceedings to revoke'' its registration); 21 CFR 1301.76(a) (prohibiting a registrant from employing ``any person . . . who, at any time, . . . has surrendered a DEA registration for cause'' and defining ``the term `for cause' [to] mean[ ] a surrender in lieu of, or as a consequence of, any federal or state administrative . . . action resulting from an investigation of the individual's handling of controlled substances''). The evidence also shows that within three months of his having surrendered his state license, Respondent provided a ``No'' answer to question three on his DEA application, which asked if he had ``ever surrendered (for cause)'' his state professional license. By itself, Respondent's provision of this answer constitutes a material falsification of his application because it was capable of affecting or influencing the Agency's decision as to whether to grant his application. Kungys v. United States, 485 U.S. 759, 770 (1988) (other citation omitted); United States v. Wells, 519 U.S. 482, 489 (1997) (quoting Kungys, 485 U.S. at 770). As explained above, with respect to an applicant for a practitioner's registration, the CSA imposes the prerequisite requirement that the applicant be ``authorized to dispense . . . controlled substances under the laws of the State in which he practices.'' 21 U.S.C. 823(f); see also Blanton, 43 FR at 27617 (``State authorization to dispense or otherwise handle controlled substances is a prerequisite to the issuance and maintenance of a Federal controlled substances registration.''). Certainly, if Respondent had truthfully disclosed that he had surrendered his state license, Agency personnel who reviewed the application would have known that they needed to check with the State Board to determine whether his license had been reinstated. Moreover, they would have determined that Respondent's state license is ``null and void,'' thus rendering him ineligible to be registered. Respondent committed additional material falsifications when he represented that he was ``currently authorized to prescribe . . . dispense, or otherwise handle . . . controlled substances . . . under the laws of the state . . . in which [he was] propos[ing] to operate'' when he listed a state license number, which he represented was issued by the State of West Virginia and would not expire until July 1, 2017. Each of these representations was false and materially so because it was capable of influencing the Agency's determination as to whether Respondent was currently authorized to handle controlled substances and thus met the prerequisite for obtaining a registration. In support of its motion, the Government provided reliable and probative evidence including a copy of the Board's complaint, the letter from Respondent's counsel to the Board surrendering his state license, the [[Page 18673]] Board's Order accepting the surrender and declaring the license null and void effective June 15, 2016, a printout from the Board's Web site showing that his license had expired on June 15, 2016, and Respondent's August 31, 2016 DEA application which contained the various false statements. This evidence is sufficient to show that Respondent knowingly falsified his application by representing that his license had not been subject to discipline by the State Board and that he was, at the time of his application, not currently authorized to handle controlled substances in the State where he sought registration. By contrast, Respondent did not even respond to the Government's motion,\6\ let alone offer any evidence to support the assertion made in his hearing request which characterizes the false statements as irregularities and mistakes.\7\ Thus, I conclude that there is no dispute as to the material fact that Respondent materially falsified his August 31, 2016 application and that he did so knowingly. --------------------------------------------------------------------------- \6\ While the ALJ's November 1, 2016, order setting the briefing schedule for the lack of state authority allegation addressed only the timing of ``any motion for summary disposition on these grounds,'' the Government's Motion for Partial Summary Disposition provided Respondent with ample notice that it was seeking a ruling on the material falsification allegation as well. Notably, the opening paragraph of the motion states that ``[t]he Government respectfully requests that the ALJ grant the Government's request for summary disposition on two issues: That Respondent lacks state authority in West Virginia [and] that Respondent materially falsified his Application for a DEA registration. Motion, at 1. Moreover, the Government set forth various facts which it asserted were undisputed, including Respondent's answers which provided a license number for a purported West Virginia license, which he then represented would not expire until July 1, 2017, as well as his ``No'' answer to Question three on the application. Later, the Government devoted a separate section of its motion to arguing that Respondent made false statements on his application by failing to disclose that he had surrendered his state license for cause, that this was a material falsification under the Kungys standard, and that it was entitled to summary disposition on this issue. Id. at 6-7. Yet Respondent offered no response to the Motion. Also, in its Exceptions to the ALJ's R.D., the Government took issue with the ALJ's failure to grant its motion with respect to the material falsification allegations. See generally Gov. Exceptions. Here again, Respondent offered no response. See 21 CFR 1316.66(c) (providing for ``the filing of a response to the exceptions filed by another party''). \7\ While the ``usual rule [is] that all doubts are resolved against the moving party,'' as a leading authority explains, ``[i]f the movant presents credible evidence that, if not controverted at trial, would entitle the movant to a . . . judgment as a matter of law that evidence must be accepted as true on a summary-judgment motion when the party opposing the motion does not offer counter- affidavits or other evidentiary material supporting the opposing contention that an issue of fact remains, or does not show a good reason . . . why he is unable to present facts justifying opposition to the motion.'' 10A, Charles Alan Wright, et al., Federal Practice and Procedure Civ. Sec. 2727.1 (4th ed. 2017). Here, as Respondent did not even respond to the Government's motion, let alone offer any evidence to create a triable issue of fact, the Government was clearly entitled to summary disposition on the allegation. --------------------------------------------------------------------------- Accordingly, I conclude that the Government was entitled to summary disposition on the allegation that Respondent materially falsified his August 31, 2016 application for a new DEA registration. This provides an additional and independent basis apart from his lack of state authority for denying his application. Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 CFR 0.100(b), I order that the application of Richard Jay Blackburn, D.O., for a DEA Certificate of Registration as a practitioner, be, and it hereby is, denied. This Order is effective immediately. Dated: April 14, 2017. Chuck Rosenberg, Acting Administrator. [FR Doc. 2017-08014 Filed 4-19-17; 8:45 am] BILLING CODE 4410-09-P
![Federal Register / Vol. 82, No. 75 / Thursday, April 20, 2017 / Notices 18669
DEPARTMENT OF JUSTICE Virginia, the [S]tate in which [he is] for Lack of State Authority Allegations,
registered with . . . DEA.’’ Id. (citing 21 at 1. In the same order, the ALJ directed
Drug Enforcement Administration U.S.C. 802(21) and 824(a)(3)). that if the Government moved for
[Docket No. 17–6]
As to the material falsification summary disposition, Respondent’s
grounds, the Show Cause Order alleged reply was due by 2 p.m. on December
Richard Jay Blackburn, D.O.; Decision that the application stated that: ‘‘You 9, 2016.2 Id.
and Order MUST be currently authorized to On November 28, 2016, the
prescribe, distribute, dispense, conduct Government filed a ‘‘Motion for Partial
On September 27, 2016, the Assistant research, or otherwise handle controlled Summary Disposition.’’ Therein, the
Administrator, Diversion Control substances in the schedules for which Government sought summary
Division, issued an Order to Show you are applying under the laws of the disposition on both the issues of
Cause to Richard Jay Blackburn, D.O. state or jurisdiction in which you are whether ‘‘Respondent lacks state
(Respondent), of Ravenwood, West operating or propose to operate.’’ Id. authority in West Virginia’’ and whether
Virginia. Show Cause Order, at 1. The The Order alleged that on his he ‘‘materially falsified his
Show Cause Order proposed the denial application, Respondent represented [a]pplication.’’ Motion for Partial
of Respondent’s application for a DEA that he ‘‘currently possessed medical Summ. Disp., at 1. The Government also
Certificate of Registration as a license number ‘34.006104,’ issued by requested the ‘‘opportunity to reply to
practitioner on two grounds. First, the the [S]tate of West Virginia,’’ when this any dispute regarding the material facts
Order alleged that Respondent does not license number was not issued by West at issue.’’ Id.
possess authority to dispense controlled Virginia but was ‘‘issued by the [S]tate As support for granting its motion on
substances in West Virginia, the State in of Ohio,’’ and that his representation the lack of state authority ground, the
which he has applied for a DEA that this license ‘‘was issued by a West Government attached a copy of the
registration. Id. (citing 21 U.S.C. Virginia authority was a materially false October 20, 2014 Complaint issued by
824(a)(3)). Second, the Order alleged representation.’’ Id. (citing 21 U.S.C. the West Virginia Board of Osteopathic
that Respondent materially falsified his 824(a)(1) and 843(a)(4)(A)). Medicine to Respondent, which made
application for a DEA registration. Id. The Show Cause Order then alleged the allegation referenced in the Show
(citing 21 U.S.C. 824(a)(1)). that Respondent provided additional Cause Order. Attachment 1 to Motion
As for the jurisdictional basis of the false information on his application ‘‘by for Partial Summ. Disp., at 1. As further
proceeding, the Show Cause Order claiming that [his] West Virginia state support for its motion, the Government
alleged that Respondent had previously license was valid until July 1, 2017, attached a copy of a letter from the
held Certificate of Registration when in fact [this] license was ordered attorney who represented Respondent in
BB5953686 for schedule II through V null and void on June 15, 2016.’’ Id. at the West Virginia Board matter
controlled substances, at the address of 3 (citations omitted). The Order further addressed to Ms. Jennifer K. Akers,
Equinox LLC, d/b/a Medex PLC, 705 alleged that Respondent provided still Assistant Attorney General, West
Washington St., Ravenwood, West more false information when he Virginia Board of Osteopathic Medicine.
Virginia, that this registration expired provided a ‘‘No’’ answer to the Attachment 2, at 1. The letter, which
on July 31, 2016, and that Respondent application’s question: ‘‘Has the makes reference to the Board’s
did not file a timely renewal applicant ever surrendered (for cause) or complaint, states that Respondent
application. Id. The Order then alleged had a state professional license or ‘‘hereby surrenders his license to
that on August 31, 2016, Respondent controlled substance registration practice medicine in the [S]tate of West
submitted an application to renew the revoked[,] suspended, denied, Virginia’’ and expresses his counsel’s
above registration, and that as the restricted, or placed on probation, or is ‘‘understanding that the hearing on June
registration had expired and could not any such action pending?’’ Id. The 9th will be cancelled.’’ Id. Of further
be renewed, his application is ‘‘being Order alleged that this information was note, the letter indicates that a copy was
treated’’ as an ‘‘application for a new false because he had surrendered his provided to Respondent.
DEA registration.’’ Id. at 2. medical license for cause on June 1, The Government also attached the
As to the loss of state authority 2016. Id. (citations omitted).1 Board’s ‘‘Order Accepting Surrender of
grounds for denial, the Show Cause On October 19, 2016, the Show Cause License.’’ Attachment 3, at 1. The Order
Order alleged that on October 20, 2014, Order was served on Respondent, and states that ‘‘[o]n June 6, 2016, [it]
the West Virginia Board of Osteopathic on October 31, 2016, Respondent considered the above styled complaint
Medicine filed a complaint alleging that requested a hearing on the allegations. and Respondent’s offer via letter dated
Respondent had ‘‘engaged in The matter was placed on the docket of June 1, 2016, to surrender his license to
dishonorable, unethical or the Office of Administrative Law Judges practice osteopathic medicine in lieu of
unprofessional conduct of a character and assigned to ALJ Charles Wm. further proceedings before the Board,
likely to deceive, defraud or harm the Dorman. Thereafter, the ALJ ordered the including the June 9, 2016,
public by pre-signing prescriptions and Government to file evidence supporting administrative hearing.’’ Id. (emphasis
allowing [office] employees to complete the allegation that Respondent lacks
the rest of the information in violation state authority and its accompanying 2 In the same order, the ALJ, noting that the
of 24 C.S.R. 1.18.1.cc.’’ Id. The Order motion no later than 2 p.m. on Government had not filed a certificate of service,
directed the Government to provide evidence as to
then alleged that on June 1, 2016, November 28, 2016. Briefing Schedule when the Show Cause Order was served. As the
Respondent surrendered his osteopath’s
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Government represented that service was not
license ‘‘[t]o avoid a hearing on the 1 The Show Cause Order also notified Respondent accomplished until October 19, 2016, Respondent’s
merits of’’ the Board’s complaint. Id. of his right to request a hearing on the allegations hearing request was timely. See Gov. Notice of
or to submit a written statement while waiving his Service of Order to Show Cause, at 1. In its filing,
The Order thus alleged that ‘‘[o]n June right to a hearing, the procedure for electing either the Government also noted that while it would
15, 2016, the Board accept [his] option, and the consequence of failing to elect comply with the ALJ’s Order with respect to the
surrender, ordering [his] medical license either option. Show Cause Order at 3–4. In loss of state authority allegations, it was requesting
addition, the Show Cause Order notified a hearing ‘‘on those allegations unrelated to
null and void,’’ and that ‘‘[a]s a result, Respondent of his right to submit a Corrective Respondent’s lack of state authority’’ because ‘‘the
[Respondent] currently lack[s] authority Action Plan, see 21 U.S.C. 824(c)(2)(C), and the OSC contains allegations that are not amenable to
to handle controlled substances in West procedure for doing so. resolution via summary disposition.’’ Id.
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added). The Order also states that ‘‘after 5198 U.S. 482, 489 (1997) (quoting controlled substances, meaning that any
consideration of the facts and Kungys, 485 U.S. at 770)). number he provided to DEA purporting
circumstances and the representation of Respondent did not file a reply to the to indicate he was authorized to practice
Respondent, the Board does hereby Government’s motion. Order Granting medicine in West Virginia would be a
accept the Respondent’s voluntary Summ. Disposition and Recommended material falsification’’ of his application.
surrender of his license to practice Rulings, Findings of Fact, Conclusions Id. at 6.
osteopathic medicine in the [S]tate of of Law, and Decision (R.D.), at 2–3. The The Government further argues that
West Virginia.’’ Id. The Order, which is ALJ thus deemed the Government’s the ALJ erred because his ‘‘Briefing
dated June 15, 2016, further states that motion as unopposed. Id. at 3. Finding Order directed the Government to
‘‘[i]t is further ordered that the license it ‘‘undisputed that the Respondent address the lack of state authority
number 1455 previously issued by the lacks state authorization to handle allegations without opportunity to be
Board to [Respondent] is and shall controlled substances in West Virginia, heard on its material falsification
henceforth be null and void.’’ Id. the [S]tate in which [he] seeks to be allegations,’’ noting that it ‘‘also
Finally, the Government attached a registered with the’’ Agency, the ALJ included evidence in its Motion for
printout dated November 23, 2016 from applied the Agency’s longstanding rule Partial Summary Disposition on
the Board’s License Verification Web that ‘‘in order to maintain a DEA Respondent’s material falsification.’’ Id.
page. Attachment 4, at 1–2. The printout registration, a registrant must possess The Government argues that the ALJ
lists the status of Respondent’s license state authority to dispense controlled ‘‘did not consider evidence on
as ‘‘[e]xpired’’ with an expiration date of substances,’’ and granted the Respondent’s material falsification, nor
June 15, 2016; it also lists Respondent’s Government’s motion with respect to did [he] address the Government’s
state controlled substance license this ground. Id. at 3–4. request for findings as to those facts’’
number as having an expiration date of The ALJ, however, declined to grant and that it ‘‘is entitled to be heard on
June 30, 2016.3 Id. at 1. the Government’s motion as to the its allegations of misconduct.’’ Id. at 6–
In its motion, the Government argued material falsification ground. See id. at 7. The Government then argues that
that ‘‘there is no dispute that 4 n.3. The basis of the ALJ’s declination ‘‘although the ALJ[ ] did not address this
Respondent lacks state authority to was that in ‘‘[i]n his Request for evidence or consider it as grounds for
handle controlled substances in West Hearing, the Respondent specifically denying Respondent’s application, [I]
Virginia.’’ Motion for Partial Summ. asserted that ‘any irregularities in his should make findings that Respondent
Disp., at 6. It cited multiple authorities application were done by mistake.’ ’’ Id. materially falsified his Application and
in support of its contention that (quoting Resp. Hearing Req., at 2). The those findings should be the primary
Respondent’s application should be ALJ explained that ‘‘[b]ecause the basis for any denial of Respondent’s
denied because he does not have Respondent specifically denied the Application.’’ Id. at 7. The Government
authority to dispense controlled material falsification allegation, I thus requests that I either ‘‘issue a final
substances in West Virginia, the State in decline to make any determination order finding that Respondent provided
which he applied for registration. Id. at concerning the Government’s allegation materially false information in his
4–6 (citations omitted). that the Respondent materially falsified [a]pplication’’ and cite this as a basis for
As noted above, the Government also his current . . . application.’’ Id. denying his application, or remand the
sought summary disposition on the The Government took exception to the matter ‘‘to the ALJ to make findings and
allegation that Respondent materially ALJ’s declination to rule on the material give the Government [the] opportunity
falsified his application. Id. The falsification allegation. See Gov. to be heard on the’’ material falsification
Government argued that there is no Exceptions to Order Granting Summary allegations. Id. at 10.
dispute that Respondent ‘‘answered ‘No’ Disposition Motion. It argues that ‘‘[i]t is Having considered the entire record,
to the [application] question of whether indisputable that Respondent including the ALJ’s Recommended
he had ever surrendered (for cause) a surrendered his state medical license as Decision, I adopt the ALJ’s finding that
state medical license,’’ contending that a consequence of the’’ complaint ‘‘Respondent lacks state authorization to
‘‘[t]his answer is clearly false.’’ Id. The brought against him by the West handle controlled substances in West
Government also argued that there is no Virginia Board. Id. at 4. It then argues Virginia, the [S]tate in which the
dispute that ‘‘surrender was ‘for cause’ ’’ that it is undisputed that Respondent Respondent seeks to be registered with
as ‘‘the surrender letter explicitly answered ‘‘No’’ to the application the DEA.’’ R.D. 3. I further adopt the
requested confirmation that a state question: ‘‘Has the applicant ever ALJ’s recommendation that I deny his
medical board hearing on the allegations surrendered (for cause) or had a application for this reason. Id. As for the
against [him] would be cancelled.’’ Id. at professional license or controlled Government’s Exceptions,
6. And the Government maintained that substance registration suspended, notwithstanding that it initially took the
Respondent’s false answer was material denied, restricted, or placed on position that the material falsification
as it was ‘‘capable of affecting the probation, or is any such action allegations ‘‘are not amenable to
decision of whether to grant [the] pending?’’ Id. at 4–5. And the resolution via summary disposition,’’
application.’’ Id. at 7 (citing Mikhayl Government argues that there is no for reasons explained below, I agree
Soliman, 81 FR 47826, 47829 (2016)); dispute that Respondent’s answer was with the Government that it was entitled
see also id. (citing Kungys v. United false. Id. at 5. to summary disposition on this ground
Continuing, the Government argues as well. I make the following factual
States, 485 U.S. 759, 770 (1988) (other
that while the evidence shows that
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citation omitted); United States v. Wells, findings.
Respondent’s West Virginia license
number was 1455, Respondent listed on Findings of Fact
3 As additional exhibits, the Government
included a copy of Respondent’s expired DEA the application that he held State Respondent is an osteopathic
registration, Appendix A, a Certification of License Number 34.006104, and that the physician who previously held License
Registration History, Appendix C, and a Declaration State of issuance was West Virginia. Id. No. 1455 issued by the West Virginia
from a DEA Special Agent (S/A), who was the lead
Special Agent, and who attested to the authenticity
It then argues that ‘‘when Respondent Board of Osteopathic Medicine. Gov.
of the various documents submitted as Attachments filed his Application, he was without Mot. for Partial Summ. Disp., at
1–4. Appendix B, at 1–2. any authority in West Virginia to handle Attachment 1. However, on October 20,
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2014, the Board issued Respondent a expiration date of his license. Id. I find 215, 222 (6th Cir. 2009) (quoting Hoxie,
complaint alleging that he ‘‘engaged in that each of these answers was false, as 419 F.3d 477, 482 (6th Cir. 2005))).4
dishonorable, unethical or Respondent no longer held a West Also, pursuant to section 304(a)(1),
unprofessional conduct of a character Virginia license as of the date he the Attorney General is authorized to
likely to deceive, defraud or harm the applied for registration and was no suspend or revoke a registration ‘‘upon
public by pre-signing prescriptions and longer then ‘‘currently authorized to a finding that the registrant . . . has
allowing employees in his office to prescribe . . . dispenser, or otherwise materially falsified any application filed
complete the rest of the information in handle . . . controlled substances’’ in pursuant to or required by this
violation of 24 C.S.R. 1.18.1cc.’’ Id. West Virginia. subchapter.’’ 21 U.S.C. 824(a)(1). And
On June 1, 2016, Respondent’s On the application, Respondent was consistent with the implicit authority to
counsel wrote to an Assistant Attorney also required to answer four questions. deny an application for a practitioner’s
General for the Board by which registration if the applicant is not
Question Three asked: ‘‘Has the
Respondent ‘‘surrender[ed] his license ‘‘authorized to dispense . . . controlled
applicant ever surrendered (for cause) or
to practice medicine in the [S]tate of substances under the laws of the State
had a state professional license or
West Virginia.’’ Attachment 2. in which he practices,’’ section 304(a)(3)
controlled substance registration
Respondent’s counsel further noted that explicitly authorizes the Attorney
revoked, suspended, denied, restricted,
‘‘[i]t is my understanding that the General to suspend or revoke a
or placed on probation, or is any such
hearing on June 9th will be cancelled.’’ registration ‘‘upon a finding that the
action pending?’’ Id. Respondent
Id. Respondent’s counsel sent a copy of registrant . . . has had his State license
answered: ‘‘N’’ for no. I find that this
his letter to Respondent. Id. or registration suspended, revoked, or
On June 6, 2016, the Board considered answer was false.
denied by competent State authority
the complaint it had issued to Discussion and is longer authorized by State law to
Respondent and his ‘‘offer via letter engage in the . . . distribution or
dated June 1, 2016, to surrender his Section 303(f) of the Controlled dispensing of controlled substances.’’
license to practice osteopathic medicine Substances Act provides that ‘‘[t]he Id. § 824(a)(3).
in lieu of further proceedings before the Attorney General shall register It is well established that the various
Board, including the June 9, 2016 practitioners . . . to dispense . . . grounds for revocation or suspension of
administrative hearing.’’ Attachment 3. controlled substances in schedules II, an existing registration that Congress
By Order entered on June 15, 2016, the III, IV, or V, . . . if the applicant is enumerated in section 304(a), 21 U.S.C.
Board accepted ‘‘the Respondent’s authorized to dispense . . . controlled 824(a), are also properly considered in
voluntary surrender of his license to substances under the laws of the States deciding whether to grant or deny an
practice osteopathic medicine in the in which he practices.’’ Section 303(f) application under section 303. See The
[S]tate of West Virginia’’ and ordered further provides that ‘‘[t]he Attorney Lawsons, Inc., 72 FR 74334, 74337
that his license ‘‘shall henceforth be General may deny an application for (2007); Anthony D. Funches, 64 FR
null and void.’’ Id. Respondent’s license such registration . . . if the Attorney 14267, 14268 (1999); Alan R.
remains in this status as of the date of General determines that the issuance of Schankman, 63 FR 45260 (1998); Kuen
this Decision and Order. Attachment 4. such registration would be inconsistent H. Chen, 58 FR 65401, 65402 (1993).
Respondent previously held DEA with the public interest.’’ 21 U.S.C. Thus, both the allegation that
Certificate of Registration No. 823(f). In making the public interest Respondent materially falsified his
BB5953686, pursuant to which he was determination, the CSA requires the application and the allegation that he is
authorized to dispense controlled consideration of the following factors: not authorized to dispense controlled
substances in schedules II through V, at (1) The recommendation of the appropriate substances in West Virginia, the State in
the registered location of Equinox, LLC, State licensing board or professional which he seeks registration, are properly
d/b/a Medex, PLLC, 705 Washington St., disciplinary authority. considered in this proceeding and each
Ravenswood, West Virginia. Appendix (2) The Applicant’s experience in provides an independent and adequate
A. This registration expired on July 31, dispensing * * * controlled substances. ground for denying an application. See
2016. Id. (3) The Applicant’s conviction record
Samuel S. Jackson, 72 FR 23848, 23852
On August 31, 2016, Respondent under Federal or State laws relating to the
manufacture, distribution, or dispensing of (2007); The Lawsons, 72 FR at 74338; cf.
applied for a practitioner’s registration
controlled substances. Bobby Watts, M.D., 58 FR 46995 (1993).
seeking authority to dispense controlled The Government has ‘‘[t]he burden of
substances in schedules II through V, at (4) Compliance with applicable State,
Federal, or local laws relating to controlled proving that the requirements for . . .
the same address as where he was registration . . . are not satisfied.’’ 21
substances.
previously registered. In section four of (5) Such other conduct which may threaten CFR 1301.44(d). Having considered the
the application, Respondent was asked: the public health and safety. record including the ALJ’s R.D., and the
‘‘Are you currently authorized to Government’s Exceptions, I conclude
Id.
prescribe, distribute, dispense, conduct that the Government was entitled to
research, or otherwise handle the ‘‘These factors are . . . considered in
the disjunctive.’’ Robert A. Leslie, M.D., summary disposition on both grounds.
controlled substances in the schedules Because Respondent did not file an
for which you are applying under the 68 FR 15227, 15230 (2003). I ‘‘may rely
on any one or a combination of factors, opposition to the Government’s motion
laws of the state or jurisdiction in which with respect to either ground, nor a
you are operating or proposing to and may give each factor the weight [I]
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deem[ ] appropriate in determining response to the Government’s
operate?’’ Appendix C, at 3. This
question then required Respondent to whether . . . an application for 4 ‘‘In short, this is not a contest in which score
provide his ‘‘State License No.,’’ the registration [should be] denied.’’ Id. is kept; the Agency is not required to mechanically
State, and the ‘‘Expire Date’’ of his Moreover, while I am required to count up the factors and determine how many favor
license. Id. Respondent answered these consider each of the factors, I ‘‘need not the Government and how many favor the registrant.
make explicit findings as to each one.’’ Rather, it is an inquiry which focuses on protecting
questions, listing ‘‘34.006104’’ as his the public interest; what matters is the seriousness
license number, ‘‘WV’’ or West Virginia MacKay v. DEA, 664 F.3d 808, 816 (10th of the registrant’s misconduct.’’ Jayam Krishna-Iyer,
as the State, and ‘‘07–01–2017’’ as the Cir. 2011) (quoting Volkman, 567 F.3d 74 FR 459, 462 (2009).
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Exceptions, I conclude that Respondent reasoning that in his hearing request, federal or state administrative . . .
has waived his right to present evidence Respondent’s counsel ‘‘asserted that action resulting from an investigation of
refuting both the Government’s prima ‘any irregularities in his application the individual’s handling of controlled
facie showing on the material were done by mistake.’ ’’ R.D. 4 n.3 substances’’).
falsification ground as well as on the (quoting Resp. Hrng. Req., at 2). I The evidence also shows that within
issue of remediation.5 Therefore, I deny disagree with the ALJ that this assertion, three months of his having surrendered
his application. which was unsupported by any his state license, Respondent provided a
evidence, is sufficient to create a triable ‘‘No’’ answer to question three on his
Respondent’s Lack of State Authority DEA application, which asked if he had
issue of fact and conclude that the
Under the Controlled Substances Act Government was entitled to summary ‘‘ever surrendered (for cause)’’ his state
(CSA), a practitioner must be currently disposition on this issue as well. professional license. By itself,
authorized to handle controlled As I explained in Rezik A. Saqer, 81 Respondent’s provision of this answer
substances in ‘‘the jurisdiction in which FR 22122 (2016), ‘‘numerous courts, constitutes a material falsification of his
he practices’’ in order to obtain and including the Supreme Court, have held application because it was capable of
maintain a DEA registration. This rule that even when a statute directs an affecting or influencing the Agency’s
derives from two provisions of the CSA. agency to provide a party with a decision as to whether to grant his
See 21 U.S.C. 802(21) (‘‘[t]he term hearing, the agency can nonetheless application. Kungys v. United States,
‘practitioner’ means a physician . . . resolve the matter on summary 485 U.S. 759, 770 (1988) (other citation
licensed, registered, or otherwise disposition when there are no material omitted); United States v. Wells, 519
permitted, by . . . the jurisdiction in facts in dispute.’’ Id. at 22124 (citing U.S. 482, 489 (1997) (quoting Kungys,
which he practices . . . to distribute, Veg-Mix, Inc. v. Department of 485 U.S. at 770).
dispense, [or] administer . . . a Agriculture, 832 F.2d 601, 607 (D.C. Cir. As explained above, with respect to
controlled substance in the course of 1987)). As the D.C. Circuit explained in an applicant for a practitioner’s
professional practice’’). See also id. Veg-Mix, ‘‘[c]ommon sense suggests the registration, the CSA imposes the
§ 823(f) (‘‘The Attorney General shall futility of hearings where there is no prerequisite requirement that the
register practitioners . . . if the factual dispute of substance.’’ 832 F.2d applicant be ‘‘authorized to dispense
applicant is authorized to dispense . . . at 607. See also NLRB v. International . . . controlled substances under the
controlled substances under the laws of Ass’n of Bridge, Structural and laws of the State in which he practices.’’
the State in which he practices.’’). Ornamental Ironworkers, 549 F.2d 634, 21 U.S.C. 823(f); see also Blanton, 43 FR
Thus, DEA has long held that the 639 (9th Cir. 1977) (‘‘ ‘It is settled law at 27617 (‘‘State authorization to
possession of authority to dispense that when no fact question is involved dispense or otherwise handle controlled
controlled substances under the laws of or the facts are agreed, a plenary, substances is a prerequisite to the
the State in which a practitioner engages adversary administrative proceeding issuance and maintenance of a Federal
in professional practice is a involving evidence, cross-examination controlled substances registration.’’).
fundamental condition for obtaining of witnesses, etc., is not obligatory, even Certainly, if Respondent had
and maintaining a practitioner’s though a pertinent statute prescribes a truthfully disclosed that he had
registration. See, e.g., Frederick Marsh hearing.’ ’’) (quoting United States v. surrendered his state license, Agency
Blanton, 43 FR 27616, 27617 (1978) Consolidated Mines & Smelting Co., personnel who reviewed the application
(‘‘State authorization to dispense or Ltd., 455 F.2d 432, 453 (9th Cir. 1971)). would have known that they needed to
otherwise handle controlled substances As found above, the evidence shows check with the State Board to determine
is a prerequisite to the issuance and that Respondent surrendered his state whether his license had been reinstated.
maintenance of a Federal controlled license in response to the complaint Moreover, they would have determined
substances registration.’’); see also filed by the State Board and to avoid that Respondent’s state license is ‘‘null
James L. Hooper, 76 FR 71371 (2011), going to a hearing on the allegations. and void,’’ thus rendering him ineligible
pet. for rev. denied, 481 Fed. Appx. 826 Thus, Respondent clearly surrendered to be registered.
(4th Cir. 2012); 21 U.S.C. 824(a)(3). his license ‘‘for cause’’ within the Respondent committed additional
Here, it is undisputed that meaning of the application question material falsifications when he
Respondent surrendered his West which asked if he had ‘‘ever represented that he was ‘‘currently
Virginia osteopathic license and is thus surrendered (for cause) or had a state authorized to prescribe . . . dispense, or
no longer authorized to dispense professional license or controlled otherwise handle . . . controlled
controlled substances in the State in substance registration revoked, substances . . . under the laws of the
which he has applied for registration. suspended, denied, restricted, or placed state . . . in which [he was] propos[ing]
Accordingly, Respondent does not meet on probation, or is any such action to operate’’ when he listed a state
the CSA’s essential prerequisite for pending?’’ Cf. JM Pharmacy Group, Inc., license number, which he represented
obtaining a practitioner’s registration. d/b/a Farmacia Nueva and Best Pharma was issued by the State of West Virginia
This provides reason alone to deny his Corp., 80 FR 28667, 28668–69 (2015) and would not expire until July 1, 2017.
application. See 21 U.S.C. 823(f), (holding that pharmacy surrendered its Each of these representations was false
824(a)(3), 802(21). registration ‘‘for cause’’ when its and materially so because it was capable
principal did so in response to of influencing the Agency’s
The Material Falsification
allegations of misconduct and was determination as to whether Respondent
As explained above, the ALJ declined advised that if he did not surrender, the was currently authorized to handle
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to rule on the Government’s motion for Agency would ‘‘initiate proceedings to controlled substances and thus met the
summary disposition with respect to the revoke’’ its registration); 21 CFR prerequisite for obtaining a registration.
material falsification allegation, 1301.76(a) (prohibiting a registrant from In support of its motion, the
employing ‘‘any person . . . who, at any Government provided reliable and
5 Because the CSA requires that a practitioner
time, . . . has surrendered a DEA probative evidence including a copy of
possess state authority in order to be registered as
a practitioner, where the Government’s case is
registration for cause’’ and defining ‘‘the the Board’s complaint, the letter from
based solely on a practitioner’s lack of state term ‘for cause’ [to] mean[ ] a surrender Respondent’s counsel to the Board
authority, evidence of remediation is irrelevant. in lieu of, or as a consequence of, any surrendering his state license, the
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Board’s Order accepting the surrender no dispute as to the material fact that burden and associated response time,
and declaring the license null and void Respondent materially falsified his should be directed to Mrs. Amy C.
effective June 15, 2016, a printout from August 31, 2016 application and that he Blasher, Unit Chief, Federal Bureau of
the Board’s Web site showing that his did so knowingly. Investigation, CJIS Division, Module
license had expired on June 15, 2016, Accordingly, I conclude that the E–3, 1000 Custer Hollow Road,
and Respondent’s August 31, 2016 DEA Government was entitled to summary Clarksburg, West Virginia 26306;
application which contained the various disposition on the allegation that facsimile (304) 625–3566. Written
false statements. This evidence is Respondent materially falsified his comments and/or suggestions can also
sufficient to show that Respondent August 31, 2016 application for a new be sent to the Office of Management and
knowingly falsified his application by DEA registration. This provides an Budget, Office of Information and
representing that his license had not additional and independent basis apart Regulatory Affairs, Attention
been subject to discipline by the State from his lack of state authority for Department of Justice Desk Officer,
Board and that he was, at the time of his denying his application. Washington, DC 20503 or sent to OIRA_
application, not currently authorized to submissions@omb.eop.gov.
handle controlled substances in the Order
SUPPLEMENTARY INFORMATION: Written
State where he sought registration. Pursuant to the authority vested in me comments and suggestions from the
By contrast, Respondent did not even by 21 U.S.C. 823(f) and 28 CFR 0.100(b), public and affected agencies concerning
respond to the Government’s motion,6 I order that the application of Richard the proposed collection of information
let alone offer any evidence to support Jay Blackburn, D.O., for a DEA are encouraged. Your comments should
the assertion made in his hearing Certificate of Registration as a address one or more of the following
request which characterizes the false practitioner, be, and it hereby is, denied. four points:
statements as irregularities and This Order is effective immediately.
mistakes.7 Thus, I conclude that there is —Evaluate whether the proposed
Dated: April 14, 2017. collection of information is necessary
6 While
Chuck Rosenberg, for the proper performance of the
the ALJ’s November 1, 2016, order setting
the briefing schedule for the lack of state authority Acting Administrator. functions of the agency, including
allegation addressed only the timing of ‘‘any motion [FR Doc. 2017–08014 Filed 4–19–17; 8:45 am] whether the information will have
for summary disposition on these grounds,’’ the practical utility;
BILLING CODE 4410–09–P
Government’s Motion for Partial Summary
Disposition provided Respondent with ample —Evaluate the accuracy of the agency’s
notice that it was seeking a ruling on the material estimate of the burden of the
falsification allegation as well. Notably, the opening DEPARTMENT OF JUSTICE proposed collection of information,
paragraph of the motion states that ‘‘[t]he including the validity of the
Government respectfully requests that the ALJ grant [OMB Number 1110–0005]
the Government’s request for summary disposition methodology and assumptions used;
on two issues: That Respondent lacks state Agency Information Collection —Enhance the quality, utility, and
authority in West Virginia [and] that Respondent Activities; Proposed eCollection; clarity of the information to be
materially falsified his Application for a DEA collected; and
registration. Motion, at 1. eComments Requested Age, Sex,
Race, and Ethnicity of Persons —Minimize the burden of the collection
Moreover, the Government set forth various facts
which it asserted were undisputed, including Arrested Under 18 Years of Age; Age, of information on those who are to
Respondent’s answers which provided a license Sex, Race, and Ethnicity of Persons respond, including through the use of
number for a purported West Virginia license,
Arrested 18 Years of Age and Over appropriate automated, electronic,
which he then represented would not expire until mechanical, or other technological
July 1, 2017, as well as his ‘‘No’’ answer to Question
three on the application. Later, the Government
AGENCY: Federal Bureau of collection techniques or other forms
devoted a separate section of its motion to arguing Investigation, Department of Justice. of information technology, e.g.,
that Respondent made false statements on his ACTION: 30-day notice. permitting electronic submission of
application by failing to disclose that he had responses.
surrendered his state license for cause, that this was SUMMARY: Department of Justice (DOJ),
a material falsification under the Kungys standard, Overview of This Information
and that it was entitled to summary disposition on Federal Bureau of Investigation,
this issue. Id. at 6–7. Yet Respondent offered no Criminal Justice Information Services Collection
response to the Motion. Division will be submitting the (1) Type of Information Collection:
Also, in its Exceptions to the ALJ’s R.D., the following information collection request Extension of a currently approved
Government took issue with the ALJ’s failure to
grant its motion with respect to the material
to the Office of Management and Budget collection.
falsification allegations. See generally Gov. (OMB) for review and approval in (2) Title of the Form/Collection: Age,
Exceptions. Here again, Respondent offered no accordance with the Paperwork Sex, Race, and Ethnicity of Persons
response. See 21 CFR 1316.66(c) (providing for ‘‘the Reduction Act of 1995. This proposed Arrested Under 18 Years of Age; and
filing of a response to the exceptions filed by
another party’’).
information collection was previously Age, Sex, Race, and Ethnicity of Persons
7 While the ‘‘usual rule [is] that all doubts are published allowing for a 60 day Arrested 18 Years of Age and Over
resolved against the moving party,’’ as a leading comment period. (3) Agency form number, if any, and
authority explains, ‘‘[i]f the movant presents DATES: Comments on the information the applicable component of the
credible evidence that, if not controverted at trial,
would entitle the movant to a . . . judgment as a collection published in the Federal Department sponsoring the collection:
matter of law that evidence must be accepted as Register at 82 FR 11060, on February 17, Agency form number: 1–708 and 1–
2017 are encouraged and will be 708a. Sponsoring component:
asabaliauskas on DSK3SPTVN1PROD with NOTICES
true on a summary-judgment motion when the
party opposing the motion does not offer counter- accepted until May 22, 2017. Department of Justice, Federal Bureau of
affidavits or other evidentiary material supporting
the opposing contention that an issue of fact FOR FURTHER INFORMATION CONTACT: Investigation, Criminal Justice
remains, or does not show a good reason . . . why Written comments and/or suggestions Information Services Division.
he is unable to present facts justifying opposition regarding the items contained in this (4) Affected public who will be asked
to the motion.’’ 10A, Charles Alan Wright, et al., or required to respond, as well as a brief
Federal Practice and Procedure Civ. § 2727.1 (4th notice, especially the estimated public
ed. 2017). Here, as Respondent did not even
abstract: Primary: City, county, state,
respond to the Government’s motion, let alone offer Government was clearly entitled to summary federal, and tribal law enforcement
any evidence to create a triable issue of fact, the disposition on the allegation. agencies. Abstract: Under Title 28, U.S.
VerDate Sep<11>2014 17:27 Apr 19, 2017 Jkt 241001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\20APN1.SGM 20APN1](https://thefederalregister.org/doc/82_FR_18744/page/5.svg)
Document Created: 2017-04-20 01:42:37
Document Modified: 2017-04-20 01:42:37
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
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| Section | Notices | |
| FR Citation | 82 FR 18669 |
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