82 FR 46527 - William J. O'Brien, III, D.O.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 192 (October 5, 2017)

Page Range		46527-46529
FR Document		2017-21380
Federal Register, Volume 82 Issue 192 (Thursday, October 5, 2017)
[Federal Register Volume 82, Number 192 (Thursday, October 5, 2017)]
[Notices]
[Pages 46527-46529]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-21380]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 17-24]


William J. O'Brien, III, D.O.; Decision and Order

    On March 13, 2017, the Assistant Administrator, Diversion Control 
Division, issued an Order to Show Cause to William J. O'Brien, III, 
D.O. (Respondent), formerly of Levittown, Pennsylvania. The Show Cause 
Order proposed the revocation of Respondent's DEA Certificate of 
Registration pursuant to 21 U.S.C. 824(a)(2), on the ground that he 
``ha[s] been convicted of a felony relating to controlled substances.'' 
Show Cause Order, at 1.
    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Respondent is registered as a practitioner in schedules II through V, 
under Registration No. BO3937781, at the address of 49 Rolling Lane, 
Levittown, Pa. Id. The Order also alleged that Respondent's 
registration expires on December 31, 2017. Id.
    As to the substantive grounds for the proceeding, the Show Cause 
Order alleged that ``[o]n June 28, 2016, [Respondent was] convicted by 
a Federal jury of . . . two counts of conspiracy to distribute 
controlled substances, in violation of 21 U.S.C. 846; 110 counts of 
distribution of controlled substances (oxycodone, methadone and 
amphetamine, all [s]chedule II controlled substances), seven counts of 
distribution of controlled substances (alprazolam, a [s]chedule IV 
controlled substances, in violation of 21 U.S.C. 841(a)(1); and one 
count of distribution of controlled substances resulting in death, in 
violation of 21 U.S.C. 841(a)(1). Id. at 1-2. The Show Cause Order also 
alleged that on October 5, 2016, the judgment was entered against him. 
Id. at 2. The Order then asserted that a ``[c]onviction of a felony 
related to controlled substances warrants revocation of [his] 
registration pursuant to 21 U.S.C. 824(a)(2).'' Id.
    The Show Cause Order 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. Id. The 
Show Cause Order also notified Respondent of his right to submit a 
Corrective Action Plan pursuant to 21 U.S.C. 824(c)(2)(C). Id. at 2-3.
    On March 21, 2017, the Government served the Show Cause Order on 
Respondent. Notice of Service of Order to Show Cause, at 1. On April 
25, 2017, Respondent's hearing request was received by the Office of 
Administrative Law Judges (OALJ) and assigned to ALJ Charles Wm. 
Dorman. Hearing Request, at 1.
    On May 1, 2017, the ALJ issued an Order for Prehearing Statements. 
Noting that Respondent's hearing request was received on April 25, 2017 
and that DEA's regulation requires that a hearing request be received 
``within 30 days after the date of receipt of the'' Show Cause Order to 
be deemed timely, the ALJ ordered the Government to ``submit evidence 
showing when it served the'' Order and to file any motion seeking to 
terminate the proceeding ``based on the timeliness of the . . . hearing 
request.'' Order for Prehearing Statements, at 1. The ALJ directed the 
Government to comply with this portion of his order by May 8, 2017. Id. 
The ALJ's Order also directed both parties to file a prehearing 
statement setting forth their proposed witnesses, a summary of their 
proposed testimony, and the documentary evidence they intended to 
introduce. Id. at 1-2.
    On May 5, 2017, the Government submitted a pleading addressing the 
timeliness of Respondent's hearing request. Therein, the Government 
noted that the envelope used by Respondent to mail the hearing request 
was stamped by the Agency's mailroom as having been received on April 
13, 2017. Notice of Service of Order to Show Cause, at 1. The 
Government therefore did not move to terminate the proceeding based on 
the timeliness of Respondent's hearing request. Id. at 1-2.
    Also, on May 5, 2017, the Government moved for summary disposition 
on two grounds. Mot. for Summ. Disp., at 1. First, the Government noted 
that subsequent to the issuance of the Show Cause Order, the State of 
Pennsylvania suspended Respondent's license to practice osteopathic 
medicine and surgery, and therefore, he has no authority to handle 
controlled substances in the State in which he is registered. Id. at 2-
4. As support for this contention, the Government submitted a copy of 
the State Board of Osteopathic Medicine's Final Order of Automatic 
Suspension (April 12, 2017). GX 2. The Government argued that because 
Respondent does not have state authority to dispense controlled 
substances in Pennsylvania, he ``is not authorized to possess a DEA 
registration in that [S]tate,'' and therefore, his registration should 
be revoked. Mot. at 3.
    The Government also sought summary disposition on the ground that 
it is undisputed that Respondent has been convicted of a controlled 
substance felony. The Government argued that Respondent has been 
convicted of two counts of conspiracy to distribute controlled 
substances, 110 counts of unlawful distribution of schedule II 
controlled substances, seven counts of unlawful distribution of other 
controlled substances, and one count of distribution of controlled 
substances resulting in death. Id. at 4 (citing 21 U.S.C. 841(a)(1) and 
846). As support for this contention, the Government submitted a copy 
of the Amended Judgment in a Criminal Case which was entered by the 
United States District

[[Page 46528]]

Court for the Eastern District of Pennsylvania on October 12, 2016. GX 
3. The Government further argued that Respondent's ``[c]onviction of a 
felony relating to controlled substances subjects [his] registration to 
revocation pursuant to 21 U.S.C. 824(a)(2).'' Mot. at 5.
    Following receipt of the Government's motion, on May 8, 2017, the 
ALJ issued an Order for Respondent's Reply; the Order directed that 
Respondent submit his reply by May 19, 2017. Order for Respondent's 
Reply, at 1. On May 18, 2017, Respondent filed a reply.
    In his Reply, Respondent stated that ``[t]he Commonwealth of 
Pennsylvania granted a continuance of my case until Sept. 18, 2017.'' 
Reply to Govt.'s Mot. for Summ. Disp., at 1. Respondent further argued 
that ``[p]ersuant [sic] to 21 U.S.C. 824(a)(2)[,] the judgement [sic] 
of my conviction IS NOT FINAL UNTIL AFTER THE DIRECT APPEAL HAS BEEN 
HEARD.'' Id. As support for his contention, Respondent cited Leishman 
v. Associated Wholesale Electric Co., 318 U.S. 203 (1943), a case 
holding that a motion for a district court to amend or make additional 
findings under Rule 52(b) of the Federal Rules of Civil Procedure 
deprives a judgment of finality while the motion is pending. Respondent 
thus argues that it is ``the established rule that if a motion for a 
new trial, or in this case reversal due to [a] structural defect, the 
mere making or pendency of the motion destroys the finality of the 
judgment.'' Reply to Govt.'s Mot. for Summ. Disp., at 2. Respondent 
also sought a continuance of the proceeding for 120 days. Id.
    Upon review, the ALJ granted the Government's motion on both 
grounds. As for the loss of state authority ground, the ALJ correctly 
applied the Agency's settled rule that ``in order to maintain a DEA 
registration, a registrant must be currently authorized to handle 
controlled substances in the jurisdiction in which [he] is 
registered.'' Order Denying Resp.'s Continuance Request [and] Granting 
Summary Disposition, at 4. Finding that ``the Board's Order establishes 
that the Respondent does not currently have a medical license'' and 
that ``it is undisputed that the Respondent lacks state authorization 
to handle controlled substances in Pennsylvania, where [he] is 
registered,'' the ALJ concluded that ``[t]his issue alone is sufficient 
to warrant revocation of'' his registration. Id. at 6.
    As for Respondent's numerous convictions, the ALJ rejected 
Respondent's contention that ``the judgment of any conviction is not 
final until after the direct appeal has been heard,'' finding his 
arguments ``unpersuasive and contrary to DEA precedent.'' Id. The ALJ 
further explained that 21 U.S.C. 824(a)(2) ``does not include any 
language requiring a Respondent to have exhausted all appellate review 
in order for the conviction to qualify under this provision.'' Id. 
Finding it undisputed that ``Respondent has been convicted of a felony 
related to controlled substances,'' the ALJ also granted summary 
disposition on this ground. Id. at 7. & n.3 (citing Richard Jay 
Blackburn, 82 FR 18669 (2017) (holding that Government was entitled to 
summary disposition on allegation that physician materially falsified 
an application based on its offering of reliable and probative evidence 
to support allegation when respondent failed to ``respond to the 
Government's motion'').\1\
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    \1\ The ALJ also denied Respondent's request for a continuance. 
R.D. 8.
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    Neither party filed exceptions to the ALJ's Summary Disposition 
Order. On July 11, 2017, the ALJ forwarded the record to my Office for 
Final Agency Action. Having considered the record in its entirety, I 
adopt the ALJ's factual findings and legal conclusions with respect to 
both grounds, as well as his recommended order. I make the following 
findings.

Findings of Fact

    Respondent is an Osteopathic Physician licensed by the Commonwealth 
of Pennsylvania State Board of Osteopathic Medicine. GX 2, at 1 (Final 
Order of Automatic Suspension). Respondent is also the holder of DEA 
Certificate of Registration No. BO3937781, pursuant to which he is 
authorized to dispense controlled substances in schedules II through V 
as a practitioner, at the registered address of 49 Rolling Lane, 
Levittown, Pa. GX 1 (Registration Certificate). Respondent also holds 
DATA-Waiver Identification No. XO3937781, pursuant to which he is 
authorized to dispense narcotic controlled substances in schedules III 
through V, to up to 30 patients, for the purpose of providing 
maintenance or detoxification treatment. Id. Respondent's registration 
and DATA-Waiver number do not expire until December 31, 2017. Id.
    On October 12, 2016, the United States District Court issued an 
amended judgment finding Respondent guilty of two counts of conspiracy 
to distribute controlled substances, in violation of 21 U.S.C. 846; 110 
counts of distribution of controlled substances, in violation of 21 
U.S.C. 841(a)(1) and (b)(1)(C); seven counts of distribution of 
controlled substances, in violation of 21 U.S.C. 841(a)(1) and 
(b)(1)(E); and one count of distribution of controlled substances 
resulting in death, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). 
GX 3, at 1-2 (Amended Judgment In a Criminal Case, United States v. 
O'Brien, No. DPAE2:15CR000021-001 (E.D. Pa., Oct. 12, 2016)). The court 
sentenced Respondent to a total term of imprisonment of 360 months. Id. 
at 3.
    Based on Respondent's convictions, on March 3, 2017, the Board 
issued him a Notice and Order of Automatic Suspension which was to 
become effective on March 23, 2017 unless Respondent requested a 
hearing. GX 2, at 1 (Final Order of Automatic Suspension). On April 12, 
2017, the Board issued a Final Order of Automatic Suspension of his 
osteopathic license. Id.

Discussion

Loss of State Authority Ground

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of Title 
21, ``upon a finding that the registrant . . . has had his State 
license . . . suspended [or] revoked . . . by competent State authority 
and is no longer authorized by State law to engage in the . . . 
dispensing of controlled substances.'' With respect to a practitioner, 
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 registration. See, e.g., 
James L. Hooper, 76 FR 71371 (2011) (collecting cases), pet. for rev. 
denied, 481 Fed. Appx. 826 (4th Cir. 2012); see also Frederick Marsh 
Blanton, 43 FR 27616 (1978) (``State authorization to dispense or 
otherwise handle controlled substances is a prerequisite to the 
issuance and maintenance of a Federal controlled substances 
registration.'').
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined ``the term `practitioner' [to] mean[ ] a . . . 
physician . . . or other person 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.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . .

[[Page 46529]]

controlled substances under the laws of the State in which he 
practices.'' Id. Sec.  823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the Act, DEA has held repeatedly that revocation of 
a practitioner's registration is the appropriate sanction whenever he 
is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices medicine. See, e.g., Calvin 
Ramsey, 76 FR 20034, 20036 (2011); Sheran Arden Yeates, M.D., 71 FR 
39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); 
Bobby Watts, 53 FR 11919, 11920 (1988); see also Frederick Marsh 
Blanton, 43 FR 27616 (1978).
    Based on the Board's Final Order of Automatic Suspension, it is 
undisputed that Respondent is no longer currently authorized to 
dispense controlled substances in Pennsylvania, the State in which he 
is registered with the Agency. Respondent is therefore not entitled to 
maintain his registration. This provides reason alone to revoke his 
registration and to deny any pending application for registration in 
Pennsylvania.\2\
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    \2\ While this ground was not cited in the Show Cause Order, the 
Government provided constitutionally adequate notice that it was 
also seeking revocation on this basis when it served Respondent with 
its Motion for Summary Disposition and Respondent had a meaningful 
opportunity to put forward evidence and contest the issue. See Hatem 
Ataya, 81 FR 8221, 8244-45 (2016).
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Respondent's Criminal Convictions

    Pursuant to 21 U.S.C. 824(a)(2), the Attorney General may also 
suspend or revoke a registration issued under section 823 of Title 21, 
``upon a finding that the registrant . . . has been convicted of a 
felony under this subchapter'' (the Controlled Substances Act). Here 
too, it is undisputed that Respondent has been convicted of more than 
100 different felony violations of the CSA, including two of counts of 
conspiracy to distribute controlled substances, 21 U.S.C. 846; 117 
counts of distribution of controlled substances, in violation of 21 
U.S.C. 841(a)(1) and (b)(1)(C) and (b)(1)(E); and one count of 
distribution of controlled substances resulting in death, in violation 
of 21 U.S.C. 841(a)(1) and (b)(1)(C). While Respondent asserts that his 
convictions are not final because his case is on direct appeal, the 
District Court has entered the judgment and Respondent, who is 
currently incarcerated in a United States Penitentiary, points to no 
order by the Court vacating the judgment.\3\ Accordingly, I find that 
Respondent ``has been convicted of a felony under this subchapter,'' 
thus subjecting his registration to sanction. 21 U.S.C. 824(a)(2).
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    \3\ As for Respondent's reliance on Leishman v. Associated 
Wholesale Electric Co., that case involved a motion for amended 
findings under Rule 52 of the Federal Rules of Civil Procedure and 
has no relevance to this matter.
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    In contrast to a practitioner's loss of his state authority, this 
finding does not mandate the revocation of his registration on this 
ground and the Agency has held that a conviction is not a per se bar to 
registration (as is the loss of state authority). See Jeffery M. 
Freesemann, 76 FR 60873 n.1 (2011) (citing The Lawsons, 72 FR 74334, 
74338 (2007)); Michael S. Moore, 76 FR 45867 (2011). Here, however, 
Respondent's criminal conduct, which involves 120 felony convictions 
for unlawful distribution, including for unlawful distribution 
resulting in death, is so obviously egregious that revocation is 
warranted. See Masters Pharmaceutical, Inc., v. DEA, 861 F.3d 206, 226 
(D.C. Cir. 2017) (recognizing Agency's authority to revoke a 
registration based on extensive and egregious misconduct even if 
registrant had accepted responsibility); see also Hatem Attaya, 81 FR 
8221, 8244 (2016) (``[W]hile proceedings under 21 U.S.C. 823 and 824 
are remedial in nature, there are cases in which, notwithstanding a 
finding that a registrant has credibly accepted responsibility, the 
misconduct is so egregious and extensive that the protection of the 
public interest nonetheless warrants the revocation of a registration 
or the denial of an application.'') (citation omitted).
    While ordinarily a respondent who has been convicted of a felony 
subject to section 824(a)(2) is entitled to present a case as to why 
his registration should not be revoked (or his application denied), I 
nonetheless conclude that the ALJ properly granted summary disposition 
in this matter because there is no issue of any disputed material fact. 
Here, even ignoring the manifest egregiousness of Respondent's criminal 
conduct, he has put forward no evidence to show why he can be entrusted 
with a registration nor raised any contention that he acknowledges his 
misconduct and has undertaken remedial measures.\4\ See Medicine 
Shoppe-Jonesborough, 73 FR 364, 387 (2008) (other citations omitted). 
Cf. 10B Charles Allen Wright, et al., Federal Practice and Procedure 
Civ. Sec.  2727.2 (4th ed. April 2017 update) (``If the summary-
judgment movant makes out a prima facie case that would entitle him to 
a judgment as a matter of law if uncontroverted at trial, summary 
judgment will be granted unless the opposing party offers some 
competent evidence that could be presented at trial showing that there 
is a genuine dispute as to a material fact.''). And finally, as the 
evidence shows that Respondent is only one year into a 30-year term of 
imprisonment, he has clearly discontinued (even if involuntarily) his 
professional practice. Cf. 21 CFR 1301.52 (``the registration of any 
person . . . shall terminate . . . if and when such person . . . 
discontinues business or professional practice''). Thus, even if his 
state license had not been suspended, his continued registration would 
violate DEA's longstanding policy barring shelf registrations. See, 
e.g., Performance Construction, Inc., 67 FR 9993 (2002). Accordingly, I 
conclude that the ALJ properly granted summary disposition on this 
ground. I further conclude that Respondent's multiple felony 
convictions for violating the CSA provide an additional and independent 
basis for revoking his registration and denying any pending 
application.
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    \4\ To the contrary, in his various filings, Respondent 
maintains that various agents ``misle[d] the grand jury to get the 
original indictment'' and that ``no warrants were issued for 19 
videotaped visits.'' Resp.'s Hrng. Req., at 1.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 28 
CFR 0.100(b), I order that DEA Certificate of Registration No. 
BO3937781 and DATA-Waiver Identification No. XO3937781 issued to 
William J. O'Brien, III, D.O., be, and they hereby are, revoked. I 
further order that any application of William J. O'Brien, III, D.O. to 
renew or modify this registration, or for any other DEA registration, 
be, and it hereby is, denied. This Order is effective immediately.\5\
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    \5\ Based on Respondent's numerous convictions, I conclude that 
the public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: September 28, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-21380 Filed 10-4-17; 8:45 am]
BILLING CODE 4410-09-P
Federal Register / Vol. 82, No. 192 / Thursday, October 5, 2017 / Notices 46527

substances under the laws of the State been convicted of a felony relating to Order and to file any motion seeking to
in which he practices medicine. See, controlled substances.’’ Show Cause terminate the proceeding ‘‘based on the
e.g., Calvin Ramsey, 76 FR 20034, 20036 Order, at 1. timeliness of the . . . hearing request.’’
(2011); Sheran Arden Yeates, M.D., 71 As to the Agency’s jurisdiction, the Order for Prehearing Statements, at 1.
FR 39130, 39131 (2006); Dominick A. Show Cause Order alleged that The ALJ directed the Government to
Ricci, 58 FR 51104, 51105 (1993); Bobby Respondent is registered as a comply with this portion of his order by
Watts, 53 FR 11919, 11920 (1988); see practitioner in schedules II through V, May 8, 2017. Id. The ALJ’s Order also
also Frederick Marsh Blanton, 43 FR under Registration No. BO3937781, at directed both parties to file a prehearing
27616 (1978). the address of 49 Rolling Lane, statement setting forth their proposed
Because Registrant is no longer Levittown, Pa. Id. The Order also witnesses, a summary of their proposed
currently authorized to dispense alleged that Respondent’s registration testimony, and the documentary
controlled substances in Texas, the State expires on December 31, 2017. Id. evidence they intended to introduce. Id.
in which he is registered with the As to the substantive grounds for the at 1–2.
Agency, I will order that his registration proceeding, the Show Cause Order On May 5, 2017, the Government
be revoked.3 21 U.S.C. 824(a)(3). alleged that ‘‘[o]n June 28, 2016, submitted a pleading addressing the
[Respondent was] convicted by a timeliness of Respondent’s hearing
Order Federal jury of . . . two counts of request. Therein, the Government noted
Pursuant to the authority vested in me conspiracy to distribute controlled that the envelope used by Respondent to
by 21 U.S.C. 824(a), as well as 28 CFR substances, in violation of 21 U.S.C. mail the hearing request was stamped
0.100(b), I order that DEA Certificate of 846; 110 counts of distribution of by the Agency’s mailroom as having
Registration AD9639038 and Data- controlled substances (oxycodone, been received on April 13, 2017. Notice
Waiver Identification No. XD9639038, methadone and amphetamine, all of Service of Order to Show Cause, at 1.
issued to Warren B. Dailey, M.D., be, [s]chedule II controlled substances), The Government therefore did not move
and they hereby are, revoked. Pursuant seven counts of distribution of to terminate the proceeding based on
to the authority vested in me by 21 controlled substances (alprazolam, a the timeliness of Respondent’s hearing
U.S.C. 823(f), I further order that any [s]chedule IV controlled substances, in request. Id. at 1–2.
pending application of Warren B. violation of 21 U.S.C. 841(a)(1); and one Also, on May 5, 2017, the Government
Dailey, M.D., to renew or modify his count of distribution of controlled moved for summary disposition on two
registration, be, and it hereby is, denied. substances resulting in death, in grounds. Mot. for Summ. Disp., at 1.
This Order is effective November 6, violation of 21 U.S.C. 841(a)(1). Id. at 1– First, the Government noted that
2017. 2. The Show Cause Order also alleged subsequent to the issuance of the Show
that on October 5, 2016, the judgment Cause Order, the State of Pennsylvania
Dated: September 27, 2017.
was entered against him. Id. at 2. The suspended Respondent’s license to
Chuck Rosenberg, Order then asserted that a ‘‘[c]onviction practice osteopathic medicine and
Acting Administrator. of a felony related to controlled surgery, and therefore, he has no
[FR Doc. 2017–21382 Filed 10–4–17; 8:45 am] substances warrants revocation of [his] authority to handle controlled
BILLING CODE 4410–09–P registration pursuant to 21 U.S.C. substances in the State in which he is
824(a)(2).’’ Id. registered. Id. at 2–4. As support for this
The Show Cause Order notified contention, the Government submitted a
DEPARTMENT OF JUSTICE Respondent of his right to request a copy of the State Board of Osteopathic
hearing on the allegations or to submit Medicine’s Final Order of Automatic
Drug Enforcement Administration a written statement while waiving his Suspension (April 12, 2017). GX 2. The
[Docket No. 17–24] right to a hearing, the procedure for Government argued that because
electing either option, and the Respondent does not have state
William J. O’Brien, III, D.O.; Decision consequence of failing to elect either authority to dispense controlled
and Order option. Id. The Show Cause Order also substances in Pennsylvania, he ‘‘is not
notified Respondent of his right to authorized to possess a DEA registration
On March 13, 2017, the Assistant
submit a Corrective Action Plan in that [S]tate,’’ and therefore, his
Administrator, Diversion Control
pursuant to 21 U.S.C. 824(c)(2)(C). Id. at registration should be revoked. Mot.
Division, issued an Order to Show
2–3. at 3.
Cause to William J. O’Brien, III, D.O. On March 21, 2017, the Government The Government also sought
(Respondent), formerly of Levittown, served the Show Cause Order on summary disposition on the ground that
Pennsylvania. The Show Cause Order Respondent. Notice of Service of Order it is undisputed that Respondent has
proposed the revocation of to Show Cause, at 1. On April 25, 2017, been convicted of a controlled substance
Respondent’s DEA Certificate of Respondent’s hearing request was felony. The Government argued that
Registration pursuant to 21 U.S.C. received by the Office of Administrative Respondent has been convicted of two
824(a)(2), on the ground that he ‘‘ha[s] Law Judges (OALJ) and assigned to ALJ counts of conspiracy to distribute
3 The Show Cause Order also proposed revocation
Charles Wm. Dorman. Hearing Request, controlled substances, 110 counts of
pursuant to 21 U.S.C. 824(a)(5), which provides that at 1. unlawful distribution of schedule II
a registration may be revoked ‘‘upon a finding that On May 1, 2017, the ALJ issued an controlled substances, seven counts of
the registrant has been excluded or directed to be Order for Prehearing Statements. Noting unlawful distribution of other
excluded from participation in a program pursuant that Respondent’s hearing request was controlled substances, and one count of
ethrower on DSK3G9T082PROD with NOTICES

to section 1320a–7(a) of Title 42.’’ GX 2, 1–2. While
the Show Cause Order alleged that the HHS IG has
received on April 25, 2017 and that distribution of controlled substances
issued a letter to Registrant excluding him from DEA’s regulation requires that a hearing resulting in death. Id. at 4 (citing 21
participation in federal health care programs request be received ‘‘within 30 days U.S.C. 841(a)(1) and 846). As support for
pursuant to 42 U.S.C. 1320a–7(a), the Government after the date of receipt of the’’ Show this contention, the Government
has provided no evidence to support the allegation,
and it does not raise this ground in its Request for
Cause Order to be deemed timely, the submitted a copy of the Amended
Final Agency Action. I therefore dismiss the ALJ ordered the Government to ‘‘submit Judgment in a Criminal Case which was
allegation. evidence showing when it served the’’ entered by the United States District

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46528 Federal Register / Vol. 82, No. 192 / Thursday, October 5, 2017 / Notices

Court for the Eastern District of ‘‘unpersuasive and contrary to DEA substances, in violation of 21 U.S.C.
Pennsylvania on October 12, 2016. GX precedent.’’ Id. The ALJ further 841(a)(1) and (b)(1)(E); and one count of
3. The Government further argued that explained that 21 U.S.C. 824(a)(2) ‘‘does distribution of controlled substances
Respondent’s ‘‘[c]onviction of a felony not include any language requiring a resulting in death, in violation of 21
relating to controlled substances Respondent to have exhausted all U.S.C. 841(a)(1) and (b)(1)(C). GX 3, at
subjects [his] registration to revocation appellate review in order for the 1–2 (Amended Judgment In a Criminal
pursuant to 21 U.S.C. 824(a)(2).’’ Mot. conviction to qualify under this Case, United States v. O’Brien, No.
at 5. provision.’’ Id. Finding it undisputed DPAE2:15CR000021–001 (E.D. Pa., Oct.
Following receipt of the Government’s that ‘‘Respondent has been convicted of 12, 2016)). The court sentenced
motion, on May 8, 2017, the ALJ issued a felony related to controlled Respondent to a total term of
an Order for Respondent’s Reply; the substances,’’ the ALJ also granted imprisonment of 360 months. Id. at 3.
Order directed that Respondent submit summary disposition on this ground. Id. Based on Respondent’s convictions,
his reply by May 19, 2017. Order for at 7. & n.3 (citing Richard Jay on March 3, 2017, the Board issued him
Respondent’s Reply, at 1. On May 18, Blackburn, 82 FR 18669 (2017) (holding a Notice and Order of Automatic
2017, Respondent filed a reply. that Government was entitled to Suspension which was to become
In his Reply, Respondent stated that summary disposition on allegation that effective on March 23, 2017 unless
‘‘[t]he Commonwealth of Pennsylvania physician materially falsified an Respondent requested a hearing. GX 2,
granted a continuance of my case until application based on its offering of at 1 (Final Order of Automatic
Sept. 18, 2017.’’ Reply to Govt.’s Mot. reliable and probative evidence to Suspension). On April 12, 2017, the
for Summ. Disp., at 1. Respondent support allegation when respondent Board issued a Final Order of Automatic
further argued that ‘‘[p]ersuant [sic] to failed to ‘‘respond to the Government’s Suspension of his osteopathic license.
21 U.S.C. 824(a)(2)[,] the judgement [sic] motion’’).1 Id.
of my conviction IS NOT FINAL UNTIL Neither party filed exceptions to the
AFTER THE DIRECT APPEAL HAS ALJ’s Summary Disposition Order. On Discussion
BEEN HEARD.’’ Id. As support for his July 11, 2017, the ALJ forwarded the Loss of State Authority Ground
contention, Respondent cited Leishman record to my Office for Final Agency
v. Associated Wholesale Electric Co., Pursuant to 21 U.S.C. 824(a)(3), the
Action. Having considered the record in
318 U.S. 203 (1943), a case holding that Attorney General is authorized to
its entirety, I adopt the ALJ’s factual
a motion for a district court to amend suspend or revoke a registration issued
findings and legal conclusions with
or make additional findings under Rule under section 823 of Title 21, ‘‘upon a
respect to both grounds, as well as his
52(b) of the Federal Rules of Civil finding that the registrant . . . has had
recommended order. I make the
Procedure deprives a judgment of his State license . . . suspended [or]
following findings.
finality while the motion is pending. revoked . . . by competent State
Respondent thus argues that it is ‘‘the Findings of Fact authority and is no longer authorized by
established rule that if a motion for a Respondent is an Osteopathic State law to engage in the . . .
new trial, or in this case reversal due to Physician licensed by the dispensing of controlled substances.’’
[a] structural defect, the mere making or Commonwealth of Pennsylvania State With respect to a practitioner, DEA has
pendency of the motion destroys the Board of Osteopathic Medicine. GX 2, at long held that the possession of
finality of the judgment.’’ Reply to 1 (Final Order of Automatic authority to dispense controlled
Govt.’s Mot. for Summ. Disp., at 2. Suspension). Respondent is also the substances under the laws of the State
Respondent also sought a continuance holder of DEA Certificate of Registration in which a practitioner engages in
of the proceeding for 120 days. Id. No. BO3937781, pursuant to which he professional practice is a fundamental
Upon review, the ALJ granted the is authorized to dispense controlled condition for obtaining and maintaining
Government’s motion on both grounds. substances in schedules II through V as a registration. See, e.g., James L. Hooper,
As for the loss of state authority ground, a practitioner, at the registered address 76 FR 71371 (2011) (collecting cases),
the ALJ correctly applied the Agency’s of 49 Rolling Lane, Levittown, Pa. GX 1 pet. for rev. denied, 481 Fed. Appx. 826
settled rule that ‘‘in order to maintain a (Registration Certificate). Respondent (4th Cir. 2012); see also Frederick Marsh
DEA registration, a registrant must be also holds DATA-Waiver Identification Blanton, 43 FR 27616 (1978) (‘‘State
currently authorized to handle No. XO3937781, pursuant to which he authorization to dispense or otherwise
controlled substances in the jurisdiction is authorized to dispense narcotic handle controlled substances is a
in which [he] is registered.’’ Order controlled substances in schedules III prerequisite to the issuance and
Denying Resp.’s Continuance Request through V, to up to 30 patients, for the maintenance of a Federal controlled
[and] Granting Summary Disposition, at purpose of providing maintenance or substances registration.’’).
4. Finding that ‘‘the Board’s Order detoxification treatment. Id. This rule derives from the text of two
establishes that the Respondent does not Respondent’s registration and DATA- provisions of the CSA. First, Congress
currently have a medical license’’ and Waiver number do not expire until defined ‘‘the term ‘practitioner’ [to]
that ‘‘it is undisputed that the December 31, 2017. Id. mean[ ] a . . . physician . . . or other
Respondent lacks state authorization to On October 12, 2016, the United person licensed, registered or otherwise
handle controlled substances in States District Court issued an amended permitted, by . . . the jurisdiction in
Pennsylvania, where [he] is registered,’’ judgment finding Respondent guilty of which he practices . . . to distribute,
the ALJ concluded that ‘‘[t]his issue two counts of conspiracy to distribute dispense, [or] administer . . . a
alone is sufficient to warrant revocation controlled substances, in violation of 21 controlled substance in the course of
ethrower on DSK3G9T082PROD with NOTICES

of’’ his registration. Id. at 6. U.S.C. 846; 110 counts of distribution of professional practice.’’ 21 U.S.C.
As for Respondent’s numerous controlled substances, in violation of 21 802(21). Second, in setting the
convictions, the ALJ rejected U.S.C. 841(a)(1) and (b)(1)(C); seven requirements for obtaining a
Respondent’s contention that ‘‘the counts of distribution of controlled practitioner’s registration, Congress
judgment of any conviction is not final directed that ‘‘[t]he Attorney General
until after the direct appeal has been 1 The ALJ also denied Respondent’s request for a shall register practitioners . . . if the
heard,’’ finding his arguments continuance. R.D. 8. applicant is authorized to dispense . . .

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Federal Register / Vol. 82, No. 192 / Thursday, October 5, 2017 / Notices 46529

controlled substances under the laws of Respondent ‘‘has been convicted of a summary-judgment movant makes out a
the State in which he practices.’’ Id. felony under this subchapter,’’ thus prima facie case that would entitle him
§ 823(f). Because Congress has clearly subjecting his registration to sanction. to a judgment as a matter of law if
mandated that a practitioner possess 21 U.S.C. 824(a)(2). uncontroverted at trial, summary
state authority in order to be deemed a In contrast to a practitioner’s loss of judgment will be granted unless the
practitioner under the Act, DEA has his state authority, this finding does not opposing party offers some competent
held repeatedly that revocation of a mandate the revocation of his evidence that could be presented at trial
practitioner’s registration is the registration on this ground and the showing that there is a genuine dispute
appropriate sanction whenever he is no Agency has held that a conviction is not as to a material fact.’’). And finally, as
longer authorized to dispense controlled a per se bar to registration (as is the loss the evidence shows that Respondent is
substances under the laws of the State of state authority). See Jeffery M. only one year into a 30-year term of
in which he practices medicine. See, Freesemann, 76 FR 60873 n.1 (2011) imprisonment, he has clearly
e.g., Calvin Ramsey, 76 FR 20034, 20036 (citing The Lawsons, 72 FR 74334, discontinued (even if involuntarily) his
(2011); Sheran Arden Yeates, M.D., 71 74338 (2007)); Michael S. Moore, 76 FR professional practice. Cf. 21 CFR
FR 39130, 39131 (2006); Dominick A. 45867 (2011). Here, however, 1301.52 (‘‘the registration of any person
Ricci, 58 FR 51104, 51105 (1993); Bobby Respondent’s criminal conduct, which . . . shall terminate . . . if and when
Watts, 53 FR 11919, 11920 (1988); see involves 120 felony convictions for such person . . . discontinues business
also Frederick Marsh Blanton, 43 FR unlawful distribution, including for or professional practice’’). Thus, even if
27616 (1978). unlawful distribution resulting in death, his state license had not been
Based on the Board’s Final Order of is so obviously egregious that revocation suspended, his continued registration
Automatic Suspension, it is undisputed is warranted. See Masters would violate DEA’s longstanding
that Respondent is no longer currently Pharmaceutical, Inc., v. DEA, 861 F.3d policy barring shelf registrations. See,
authorized to dispense controlled 206, 226 (D.C. Cir. 2017) (recognizing e.g., Performance Construction, Inc., 67
substances in Pennsylvania, the State in Agency’s authority to revoke a FR 9993 (2002). Accordingly, I conclude
which he is registered with the Agency. registration based on extensive and that the ALJ properly granted summary
Respondent is therefore not entitled to egregious misconduct even if registrant disposition on this ground. I further
maintain his registration. This provides had accepted responsibility); see also conclude that Respondent’s multiple
reason alone to revoke his registration Hatem Attaya, 81 FR 8221, 8244 (2016) felony convictions for violating the CSA
and to deny any pending application for (‘‘[W]hile proceedings under 21 U.S.C. provide an additional and independent
registration in Pennsylvania.2 823 and 824 are remedial in nature, basis for revoking his registration and
there are cases in which, denying any pending application.
Respondent’s Criminal Convictions
notwithstanding a finding that a
Pursuant to 21 U.S.C. 824(a)(2), the registrant has credibly accepted Order
Attorney General may also suspend or responsibility, the misconduct is so Pursuant to the authority vested in me
revoke a registration issued under egregious and extensive that the by 21 U.S.C. 824(a) and 28 CFR 0.100(b),
section 823 of Title 21, ‘‘upon a finding protection of the public interest I order that DEA Certificate of
that the registrant . . . has been nonetheless warrants the revocation of a Registration No. BO3937781 and DATA-
convicted of a felony under this registration or the denial of an Waiver Identification No. XO3937781
subchapter’’ (the Controlled Substances application.’’) (citation omitted). issued to William J. O’Brien, III, D.O.,
Act). Here too, it is undisputed that While ordinarily a respondent who be, and they hereby are, revoked. I
Respondent has been convicted of more has been convicted of a felony subject further order that any application of
than 100 different felony violations of to section 824(a)(2) is entitled to present William J. O’Brien, III, D.O. to renew or
the CSA, including two of counts of a case as to why his registration should modify this registration, or for any other
conspiracy to distribute controlled not be revoked (or his application DEA registration, be, and it hereby is,
substances, 21 U.S.C. 846; 117 counts of denied), I nonetheless conclude that the denied. This Order is effective
distribution of controlled substances, in ALJ properly granted summary immediately.5
violation of 21 U.S.C. 841(a)(1) and disposition in this matter because there
(b)(1)(C) and (b)(1)(E); and one count of Dated: September 28, 2017.
is no issue of any disputed material fact.
distribution of controlled substances Here, even ignoring the manifest Chuck Rosenberg,
resulting in death, in violation of 21 egregiousness of Respondent’s criminal Acting Administrator.
U.S.C. 841(a)(1) and (b)(1)(C). While conduct, he has put forward no [FR Doc. 2017–21380 Filed 10–4–17; 8:45 am]
Respondent asserts that his convictions evidence to show why he can be BILLING CODE 4410–09–P
are not final because his case is on entrusted with a registration nor raised
direct appeal, the District Court has any contention that he acknowledges
entered the judgment and Respondent, his misconduct and has undertaken DEPARTMENT OF JUSTICE
who is currently incarcerated in a remedial measures.4 See Medicine
United States Penitentiary, points to no Shoppe-Jonesborough, 73 FR 364, 387 Foreign Claims Settlement
order by the Court vacating the (2008) (other citations omitted). Cf. 10B Commission
judgment.3 Accordingly, I find that Charles Allen Wright, et al., Federal [F.C.S.C. Meeting and Hearing Notice No.
2 While this ground was not cited in the Show
Practice and Procedure Civ. § 2727.2 9–17]
Cause Order, the Government provided
(4th ed. April 2017 update) (‘‘If the
Sunshine Act Meeting
ethrower on DSK3G9T082PROD with NOTICES

constitutionally adequate notice that it was also
seeking revocation on this basis when it served involved a motion for amended findings under Rule
Respondent with its Motion for Summary 52 of the Federal Rules of Civil Procedure and has
The Foreign Claims Settlement
Disposition and Respondent had a meaningful no relevance to this matter. Commission, pursuant to its regulations
opportunity to put forward evidence and contest 4 To the contrary, in his various filings,
the issue. See Hatem Ataya, 81 FR 8221, 8244–45 Respondent maintains that various agents ‘‘misle[d] 5 Based on Respondent’s numerous convictions, I
(2016). the grand jury to get the original indictment’’ and conclude that the public interest necessitates that
3 As for Respondent’s reliance on Leishman v. that ‘‘no warrants were issued for 19 videotaped this Order be effective immediately. 21 CFR
Associated Wholesale Electric Co., that case visits.’’ Resp.’s Hrng. Req., at 1. 1316.67.

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Document Created: 2017-10-05 00:54:01
Document Modified: 2017-10-05 00:54:01
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		82 FR 46527
82 FR 46527 - William J. O'Brien, III, D.O.; Decision and Order

DEPARTMENT OF JUSTICEDrug Enforcement Administration

Federal Register Volume 82, Issue 192 (October 5, 2017)

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
