83 FR 29573 - Decision and Order: Kevin G. Morgan, RN/APN

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 122 (June 25, 2018)

Page Range		29573-29575
FR Document		2018-13530
Federal Register, Volume 83 Issue 122 (Monday, June 25, 2018)
[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)]
[Notices]
[Pages 29573-29575]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-13530]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 18-15]


Decision and Order: Kevin G. Morgan, RN/APN

    On December 22, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Kevin G. Morgan, RN/APN (Respondent), of 
Nederland, Texas. The Show Cause Order proposed the revocation of 
Respondent's DEA Certificate of Registration No. MM2890312 on the 
ground that he does ``not have authority to handle controlled 
substances in the state of Texas, the state in which [Respondent is] 
registered with the DEA.'' Order to Show Cause, at 1 (citing 21 U.S.C. 
823(f), 824(a)(3)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Respondent is the holder of Certificate of Registration 
No. MM2890312, pursuant to which he is authorized to dispense 
controlled substances as a practitioner in schedules III through V, at 
the registered address

[[Page 29574]]

of 1003 Nederland Ave., Nederland, Texas. Id. The Order also alleged 
that this registration does not expire until January 31, 2019. Id.
    Regarding the substantive ground for the proceeding, the Show Cause 
Order alleged that on December 1, 2017, the Texas State Board of 
Nursing (TSBN), ``suspended [Respondent's] nursing license, including 
[Respondent's] prescriptive authority'' and that ``[t]his suspension 
remains in effect.'' Id. at 2. The Order alleged that the TSBN's 
suspension was ``based on allegations that [Respondent] acted outside 
[his] authorized scope of practice and misrepresented information to 
the public which was likely to deceive the public.'' Id. The Order 
further alleged that Respondent is therefore ``without authority to 
handle controlled substances in Texas, the [S]tate in which [he is] 
registered with the DEA.'' Id. Based on his ``lack of authority to 
[dispense] controlled substances in . . . Texas,'' the Order asserted 
that ``DEA must revoke'' his registration. Id. (citing 21 U.S.C. 
802(21), 823(f)(1), 824(a)(3)).
    The Show Cause Order notified Respondent of (1) his right to 
request a hearing on the allegations or to submit a written statement 
in lieu of a hearing, (2) the procedure for electing either option, and 
(3) the consequence for failing to elect either option. Id. at 2-3 
(citing 21 CFR 1301.43). The Show Cause Order also notified Respondent 
of his right to submit a corrective action plan. Id. at 3-4 (citing 21 
U.S.C. 824(c)(2)(C)).
    On January 23, 2018, Respondent filed a letter with the Office of 
Administrative Law Judges (OALJ) in which he requested a hearing on the 
allegation of the Show Cause Order and stated his desire to explain 
``how he is not a threat, provided great care, and how the State of 
Texas erroneously and wrongly suspended his license.'' Letter from 
Respondent's Counsel to Hearing Clerk (dated January 22, 2018) 
(hereinafter, Hearing Request), at 1. The matter was placed on the 
OALJ's docket and assigned to Chief Administrative Law Judge John J. 
Mulrooney, II (hereinafter, CALJ). On January 23, 2018, the CALJ issued 
an order entitled ``Order Directing the Filing of Government Evidence 
of Lack of State Authority Allegation and Briefing Schedule'' 
(hereinafter, ``Briefing Order'') in which the CALJ found, inter alia, 
that ``the Respondent, by counsel, filed a letter which requested a 
hearing in the matter of [sic] order to show cause. Therefore, the 
letter is construed as the Respondent's Request for Hearing.'' Briefing 
Order, at 1.
    Pursuant to 21 CFR 1301.43(a), ``any person entitled to a hearing . 
. . and desiring a hearing shall, within 30 days after the date of 
receipt of the order to show cause, . . . file with the Administrator a 
written request for a hearing.'' Accord Show Cause Order, at 2. The 
CALJ did not indicate in his Briefing Order or in his Recommended 
Decision--and the rest of the administrative record does not indicate--
when Respondent received the Show Cause Order. Without any evidence in 
the record establishing when Respondent received the Show Cause Order, 
the only way in which I could find that Respondent's Hearing Request 
was timely is if it had been filed with the Administrator within 30 
days of the December 22, 2017 date of the Show Cause Order. However, 
the OALJ did not receive Respondent's Hearing Request until January 23, 
2018.\1\ Hearing Request, at 1. Accordingly, I find that Respondent's 
Hearing Request was not timely filed pursuant to 21 CFR 1301.43(a), and 
as a result, Respondent waived his right to a hearing.
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    \1\ Although the front of Respondent's Hearing Request is 
stamped ``Received'' by the Office of Administrative Law Judges on 
January 23, 2018, the fax confirmation page attached to the Hearing 
Request states that it arrived in that office on ``January 22, 
2018.'' Compare Hearing Request, at 1, with id. at 3. In any event, 
neither date is within 30 days of the December 22, 2017 date of the 
Show Cause Order.
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    In the absence of a timely hearing request, I also find that the 
CALJ consequently lacked jurisdiction to hear the case. Accord David A. 
Ruben, M.D., 83 FR 12027, 12028 (2018) (same) (citing Brown's Discount 
Apothecary BC, Inc., and Bolling Apothecary, Inc., 80 FR 57393, 57394 
(2015) (``in the absence of a hearing request, the ALJ had no authority 
to rule on the issue of whether its registration should be revoked'')). 
I therefore cancel the hearing nunc pro tunc held by the CALJ by 
summary disposition. See 21 CFR 1301.43(e); accord Ruben, 83 FR at 
12028. Accordingly, I will treat this case as a Request for Final 
Agency Action and issue this Decision and Order based on the relevant 
evidence forwarded to my office by the CALJ on March 19, 2018.\2\ See 
id. I make the following findings.
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    \2\ In his Briefing Order, the CALJ ordered the Government to 
file evidence to support its allegation that Respondent lacks state 
authority to handle controlled substances, and any motion for 
summary disposition on these grounds, on February 2, 2018. Briefing 
Order at 1-2. The CALJ also directed Respondent to file his response 
to any summary disposition motion on February 15, 2018. Id. at 2. On 
February 2, 2018, the Government filed its Motion for Summary 
Disposition, and the Respondent filed his response on February 15, 
2018. See Government's Motion for Summary Disposition (hereinafter, 
``Govt. Mot.''); Response to the DEA's Proposed Revocation and 
Motion to Temporarily Abate and Stay the Proceedings for Fifty Days 
(hereinafter, ``Respondent's Brief'' or ``Resp. Br.''). On February 
20, 2018, the CALJ issued his Order granting summary disposition and 
Recommended Decision. Order Granting the Government's Motion for 
Summary Disposition and Recommended Rulings, Findings of Fact, 
Conclusions of Law, and Decision (hereinafter, Recommended Decision 
or R.D.). Neither party filed exceptions to the CALJ's Recommended 
Decision. Although the CALJ's Recommended Decision did not establish 
that he had jurisdiction in this case, I will nonetheless consider 
the administrative record that he submitted to me in its entirety.
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Findings of Fact

    Respondent is a holder of DEA Certificate of Registration No. 
MM2890312. Government Exhibit (GX) 1 to Govt. Mot. Pursuant to his 
registration, Respondent is authorized to dispense controlled 
substances in schedules III through V as an ``MLP-Nurse Practitioner.'' 
Id. Respondent's registered address is 1003 Nederland Ave., Nederland, 
Texas. Id. Respondent's registration does not expire until January 31, 
2019. Id.
    On December 1, 2017, the TSBN issued an ``Order of Temporary 
Suspension'' stating that Respondent's ``Permanent Advanced Practice 
Registered Nurse License Number AP123323 with Prescription 
Authorization Number 13799 and Permanent Registered Nurse License 
Number 758246 . . . to practice nursing in the State of Texas is/are, 
hereby SUSPENDED IMMEDIATELY.'' GX 2, at 17. The TSBN issued this Order 
after finding that ``given the nature of the charges, the continued 
practice of nursing by [Respondent] constitutes a continuing and 
imminent threat to public welfare.'' Id. Finally, the TSBN stated that 
``a probable cause hearing be conducted . . . not later than seventeen 
(17) days following the date of the entry of this order, and a final 
hearing on the matter be conducted . . . not later than the 61st day 
following the date of the entry of this order.'' Id. There is no 
evidence in the record establishing that the TSBN ever lifted this 
suspension. Based on the above, I find that Respondent does not 
currently have authority under the laws of Texas to dispense controlled 
substances.

Discussion

    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 the 
CSA, ``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.''

[[Page 29575]]

Also, 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., James L. Hooper, 76 FR 71371 (2011), 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 . . . 
controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the CSA, 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 engages in professional practice. 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); Blanton, 43 FR at 
27616.
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a 
practitioner's registration ``is currently authorized to handle 
controlled substances in the [S]tate,'' Hooper, 76 FR at 71371 (quoting 
Anne Lazar Thorn, 62 FR 12847, 12848 (1997)), the Agency has also long 
held that revocation is warranted even where a practitioner has lost 
his state authority by virtue of the State's use of summary process and 
the State has yet to provide a hearing to challenge the suspension. 
Bourne Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR 
27070, 27071 (1987). Thus, it is of no consequence that the TSBN 
summarily suspended Respondent's state medical license. What is 
consequential is the undisputed fact that Respondent is no longer 
currently authorized to dispense controlled substances in Texas, the 
State in which he is registered. Accordingly, Respondent is not 
entitled to maintain his DEA registration, and I will therefore order 
that his registration be revoked.\3\
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    \3\ The CALJ received and considered the Government's Motion for 
Summary Disposition and Respondent's Brief. In his brief, Respondent 
``d[id] not contest that he is subject to a temporary suspension of 
his state prescriptive authority.'' Resp. Br. at 1. However, 
Respondent argued that he will be presenting evidence at ``a 
probable cause hearing to be held on March 6, 2018,'' that his 
suspension ``was granted on flawed information and false 
allegations,'' and that he ``has not had the chance to defend his 
self [sic] against these allegations.'' Id. However, as already 
noted above, the TSBN suspended Respondent's nursing license and his 
authority to issue prescriptions. GX 2, at 17. As of the date of 
this order, Respondent has not filed a motion for reconsideration on 
the ground that the TSBN has lifted the suspension. The CALJ 
concluded that the fact that the State has yet to provide a hearing 
to challenge Respondent's suspension does not change the undisputed 
fact that Respondent's state prescriptive authority is suspended. 
R.D. at 7-8. Accordingly, if the CALJ had the authority to issue his 
conclusion rejecting Respondent's argument, I would have adopted 
this conclusion.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration No. MM2890312, issued to Kevin G. Morgan, RN/APN, be, and 
it hereby is, revoked. I further order that any pending application of 
Kevin G. Morgan to renew or modify the above registration, or any 
pending application of Kevin G. Morgan for any other DEA registration 
in the State of Texas, be, and it hereby is, denied. This Order is 
effective immediately.\4\
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    \4\ For the same reasons which led the TSBN to suspend 
Respondent's license and prescriptive authority, I conclude that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: June 14, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-13530 Filed 6-22-18; 8:45 am]
 BILLING CODE 4410-09-P
Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Notices 29573

Gregory D. Owens, D.D.S., 74 FR 36751, I find, however, that the record as a Respondent has accepted responsibility
36757 and n.22 (2009) (‘‘The residents whole shows the requisite acceptance of for his conduct. In sum, this case is
of this Nation’s poorer areas are as responsibility. According to the Plea factually unique, and, as such, I will
deserving of protection from diverters as Agreement, Respondent ‘‘has clearly impose a unique sanction.
are the citizens of its wealthier demonstrated a recognition and Based on all of the evidence in the
communities, and there is no legitimate affirmative acceptance of personal record, I shall suspend Respondent’s
reason why practitioners should be responsibility for his criminal conduct.’’ registration for a minimum period of
treated any differently because of where GX 3, at 9. While Respondent ‘‘appeared two years. Said suspension shall
they practice or the socioeconomic to have no plans to stop committing his terminate upon Respondent’s providing
status of their patients.’’ Considering crime prior to being approached by law evidence that he has satisfied the
community impact evidence would enforcement,’’ the AUSA acknowledged judgment of the District Court by paying
‘‘inject a new level of complexity into that ‘‘he did accept responsibility for his the entire amount due pursuant to the
already complex proceedings and take actions immediately.’’ GX 7 District Court’s Judgment.
the Agency far afield of the purpose of (Government Sentencing Memo, at 5).
the . . . registration provisions, which The AUSA also stated that Respondent Order
is to prevent diversion.’’).3 ‘‘has unquestionably taken full Pursuant to the authority vested in me
Counsel’s Written Statement suggests responsibility for his action going so far by 21 U.S.C. 824(a), as well as 28 CFR
that Respondent, like the respondent in as to provide significant cooperation to 0.100(b), I order that DEA Certificate of
Seglin, ‘‘did not ‘attempt to conceal his the government after his arrest.’’ Id. at Registration FA3926055 issued to
misconduct and in fact was quite 7. Moreover, at the sentencing hearing, Mohammed Asgar, M.D., be, and it
straightforward with the investigators.’ ’’ in addressing the need for specific hereby is, suspended for a minimum
GX 7 (Written Statement, at 3, citing deterrence, the AUSA concluded there period of two years and that said
Melvin N. Seglin, M.D., 63 FR at 70,433). was ‘‘no need’’ for it, stating that suspension shall terminate upon
As already discussed, Respondent’s Respondent’s ‘‘immediate acceptance of Respondent’s providing evidence that
obstruction of justice was recorded on responsibility demonstrate[s] not only he has satisfied the judgment of the
more than one occasion. Thus, although an acknowledgement of his wrongdoing, District Court by paying the amount he
I will not revoke Respondent’s but a sincere effort to take steps to make was ordered to pay pursuant to the
registration, I reject Counsel’s argument amends for the crime that [he] has Court’s judgment. This Order is effective
that Respondent did not attempt to committed.’’ Id. at 8–9. Notably, DEA July 25, 2018.
conceal his misconduct. has put forward no evidence
As for acceptance of responsibility, Dated: June 11, 2018.
challenging the sincerity of
Agency precedent requires unequivocal Respondent’s acceptance of Robert W. Patterson,
acceptance of responsibility when a responsibility. Acting Administrator.
respondent has committed knowing or As for evidence in the record [FR Doc. 2018–13531 Filed 6–22–18; 8:45 am]
intentional misconduct. Lon F. regarding whether Respondent should BILLING CODE 4410–09–P
Alexander, M.D., 82 FR 49704, 49728 continue to be entrusted with a
(2017) (collecting cases) (A respondent registration, the District Judge was
who committed knowing or intentional troubled by Respondent’s greed and the DEPARTMENT OF JUSTICE
misconduct must unequivocally fact that Respondent took affirmative
acknowledge his misconduct.). Cf. steps to obstruct justice. I, too, am Drug Enforcement Administration
Melvin N. Seglin, 63 FR at 70433 troubled by the same facts. I do note, [Docket No. 18–15]
(Respondent thought the billing method however, that Respondent’s criminality
he used was acceptable). Respondent’s did not directly involve his registration Decision and Order: Kevin G. Morgan,
participation in the multi-year illegal or controlled substances. There is RN/APN
cash kickback payment conspiracy was nothing in the record addressing, let
just that, knowing and intentional. See, alone impugning, Respondent’s use of On December 22, 2017, the Acting
e.g., GX 3, at 2–3 (Respondent’s his registration. Assistant Administrator, Diversion
admissions in the Plea Agreement to As for the Agency’s interest in Control Division, Drug Enforcement
knowing and willful criminality); GX 7 deterrence, I adopt the District Judge’s Administration (DEA), issued an Order
(Government Sentencing Memo, at 2–3) conclusion that specific deterrence is to Show Cause to Kevin G. Morgan, RN/
(describing the recorded acts forming not a concern. GX 7 (Transcript of APN (Respondent), of Nederland, Texas.
the basis for the obstruction of justice Sentencing Hearing, at 8). I agree with The Show Cause Order proposed the
enhancement); GX 7 (Transcript of the District Judge that ‘‘[g]eneral revocation of Respondent’s DEA
Sentencing Hearing, at 37) (AUSA’s deterrence is the question.’’ Id. at 30. Certificate of Registration No.
description of Respondent’s knowing While not issuing some sanction due to MM2890312 on the ground that he does
and willful acts). Respondent’s outrageous misconduct ‘‘not have authority to handle controlled
sends the wrong message to the substances in the state of Texas, the
3 DEA’s brief appears to agree with Respondent’s registrant community, not state in which [Respondent is]
reading of Kwan Bo Jin while distinguishing it on acknowledging the prosecutors’ registered with the DEA.’’ Order to
the facts. RFAA, at 5–6. As recognized in 21 CFR
1301.43, a written statement ‘‘shall be considered unqualified satisfaction with Show Cause, at 1 (citing 21 U.S.C.
in light of the lack of opportunity for cross- Respondent’s significant cooperation 823(f), 824(a)(3)).
examination in determining the weight to be likewise sends the wrong message. With respect to the Agency’s
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attached to matters of fact asserted therein.’’ In this On the whole, while I find that the jurisdiction, the Show Cause Order
case, other credible evidence, such as the District
Court’s acceptance of the Respondent’s guilty plea, Respondent was involved in knowing alleged that Respondent is the holder of
the application of the Sentencing Guidelines and willful criminal conduct, I also find Certificate of Registration No.
provision crediting Respondent with accepting that this conduct did not involve the MM2890312, pursuant to which he is
responsibility, and the concession by the AUSA in
the criminal case that Respondent accepted
misuse of his registration to handle authorized to dispense controlled
responsibility, supports Respondent’s contention controlled substances. I further find, as substances as a practitioner in schedules
that he has accepted responsibility. the District Judge did, that the III through V, at the registered address

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of 1003 Nederland Ave., Nederland, Pursuant to 21 CFR 1301.43(a), ‘‘any Findings of Fact
Texas. Id. The Order also alleged that person entitled to a hearing . . . and Respondent is a holder of DEA
this registration does not expire until desiring a hearing shall, within 30 days Certificate of Registration No.
January 31, 2019. Id. after the date of receipt of the order to MM2890312. Government Exhibit (GX)
Regarding the substantive ground for show cause, . . . file with the 1 to Govt. Mot. Pursuant to his
the proceeding, the Show Cause Order Administrator a written request for a registration, Respondent is authorized to
alleged that on December 1, 2017, the hearing.’’ Accord Show Cause Order, at dispense controlled substances in
Texas State Board of Nursing (TSBN), 2. The CALJ did not indicate in his schedules III through V as an ‘‘MLP-
‘‘suspended [Respondent’s] nursing Briefing Order or in his Recommended Nurse Practitioner.’’ Id. Respondent’s
license, including [Respondent’s] Decision—and the rest of the registered address is 1003 Nederland
prescriptive authority’’ and that ‘‘[t]his administrative record does not Ave., Nederland, Texas. Id.
suspension remains in effect.’’ Id. at 2. indicate—when Respondent received Respondent’s registration does not
The Order alleged that the TSBN’s the Show Cause Order. Without any expire until January 31, 2019. Id.
suspension was ‘‘based on allegations evidence in the record establishing On December 1, 2017, the TSBN
that [Respondent] acted outside [his] when Respondent received the Show issued an ‘‘Order of Temporary
authorized scope of practice and Cause Order, the only way in which I Suspension’’ stating that Respondent’s
misrepresented information to the could find that Respondent’s Hearing ‘‘Permanent Advanced Practice
public which was likely to deceive the Request was timely is if it had been filed Registered Nurse License Number
public.’’ Id. The Order further alleged with the Administrator within 30 days AP123323 with Prescription
that Respondent is therefore ‘‘without of the December 22, 2017 date of the Authorization Number 13799 and
authority to handle controlled Show Cause Order. However, the OALJ Permanent Registered Nurse License
substances in Texas, the [S]tate in did not receive Respondent’s Hearing
Number 758246 . . . to practice nursing
which [he is] registered with the DEA.’’ Request until January 23, 2018.1 Hearing
in the State of Texas is/are, hereby
Id. Based on his ‘‘lack of authority to Request, at 1. Accordingly, I find that
SUSPENDED IMMEDIATELY.’’ GX 2, at
[dispense] controlled substances in . . . Respondent’s Hearing Request was not
17. The TSBN issued this Order after
Texas,’’ the Order asserted that ‘‘DEA timely filed pursuant to 21 CFR
finding that ‘‘given the nature of the
must revoke’’ his registration. Id. (citing 1301.43(a), and as a result, Respondent
charges, the continued practice of
21 U.S.C. 802(21), 823(f)(1), 824(a)(3)). waived his right to a hearing.
In the absence of a timely hearing nursing by [Respondent] constitutes a
The Show Cause Order notified continuing and imminent threat to
request, I also find that the CALJ
Respondent of (1) his right to request a public welfare.’’ Id. Finally, the TSBN
consequently lacked jurisdiction to hear
hearing on the allegations or to submit stated that ‘‘a probable cause hearing be
the case. Accord David A. Ruben, M.D.,
a written statement in lieu of a hearing, conducted . . . not later than seventeen
83 FR 12027, 12028 (2018) (same)
(2) the procedure for electing either (17) days following the date of the entry
(citing Brown’s Discount Apothecary
option, and (3) the consequence for of this order, and a final hearing on the
BC, Inc., and Bolling Apothecary, Inc.,
failing to elect either option. Id. at 2–3 80 FR 57393, 57394 (2015) (‘‘in the matter be conducted . . . not later than
(citing 21 CFR 1301.43). The Show absence of a hearing request, the ALJ the 61st day following the date of the
Cause Order also notified Respondent of had no authority to rule on the issue of entry of this order.’’ Id. There is no
his right to submit a corrective action whether its registration should be evidence in the record establishing that
plan. Id. at 3–4 (citing 21 U.S.C. revoked’’)). I therefore cancel the the TSBN ever lifted this suspension.
824(c)(2)(C)). hearing nunc pro tunc held by the CALJ Based on the above, I find that
On January 23, 2018, Respondent by summary disposition. See 21 CFR Respondent does not currently have
filed a letter with the Office of 1301.43(e); accord Ruben, 83 FR at authority under the laws of Texas to
Administrative Law Judges (OALJ) in 12028. Accordingly, I will treat this case dispense controlled substances.
which he requested a hearing on the as a Request for Final Agency Action Discussion
allegation of the Show Cause Order and and issue this Decision and Order based
stated his desire to explain ‘‘how he is on the relevant evidence forwarded to Pursuant to 21 U.S.C. 824(a)(3), the
not a threat, provided great care, and my office by the CALJ on March 19, Attorney General is authorized to
how the State of Texas erroneously and 2018.2 See id. I make the following suspend or revoke a registration issued
wrongly suspended his license.’’ Letter findings. under section 823 of the CSA, ‘‘upon a
from Respondent’s Counsel to Hearing finding that the registrant . . . has had
Clerk (dated January 22, 2018) 1 Although the front of Respondent’s Hearing his State license . . . suspended [or]
(hereinafter, Hearing Request), at 1. The Request is stamped ‘‘Received’’ by the Office of revoked . . . by competent State
matter was placed on the OALJ’s docket Administrative Law Judges on January 23, 2018, the authority and is no longer authorized by
fax confirmation page attached to the Hearing State law to engage in the . . .
and assigned to Chief Administrative Request states that it arrived in that office on
Law Judge John J. Mulrooney, II ‘‘January 22, 2018.’’ Compare Hearing Request, at 1, dispensing of controlled substances.’’
(hereinafter, CALJ). On January 23, with id. at 3. In any event, neither date is within
2018, the CALJ issued an order entitled 30 days of the December 22, 2017 date of the Show the DEA’s Proposed Revocation and Motion to
Cause Order. Temporarily Abate and Stay the Proceedings for
‘‘Order Directing the Filing of 2 In his Briefing Order, the CALJ ordered the Fifty Days (hereinafter, ‘‘Respondent’s Brief’’ or
Government Evidence of Lack of State Government to file evidence to support its ‘‘Resp. Br.’’). On February 20, 2018, the CALJ issued
Authority Allegation and Briefing allegation that Respondent lacks state authority to his Order granting summary disposition and
Schedule’’ (hereinafter, ‘‘Briefing handle controlled substances, and any motion for Recommended Decision. Order Granting the
amozie on DSK3GDR082PROD with NOTICES1

summary disposition on these grounds, on February Government’s Motion for Summary Disposition and
Order’’) in which the CALJ found, inter 2, 2018. Briefing Order at 1–2. The CALJ also Recommended Rulings, Findings of Fact,
alia, that ‘‘the Respondent, by counsel, directed Respondent to file his response to any Conclusions of Law, and Decision (hereinafter,
filed a letter which requested a hearing summary disposition motion on February 15, 2018. Recommended Decision or R.D.). Neither party filed
in the matter of [sic] order to show Id. at 2. On February 2, 2018, the Government filed exceptions to the CALJ’s Recommended Decision.
its Motion for Summary Disposition, and the Although the CALJ’s Recommended Decision did
cause. Therefore, the letter is construed Respondent filed his response on February 15, not establish that he had jurisdiction in this case,
as the Respondent’s Request for 2018. See Government’s Motion for Summary I will nonetheless consider the administrative
Hearing.’’ Briefing Order, at 1. Disposition (hereinafter, ‘‘Govt. Mot.’’); Response to record that he submitted to me in its entirety.

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Also, DEA has long held that the suspended Respondent’s state medical DEPARTMENT OF JUSTICE
possession of authority to dispense license. What is consequential is the
controlled substances under the laws of undisputed fact that Respondent is no Executive Office for Immigration
the State in which a practitioner engages longer currently authorized to dispense Review
in professional practice is a controlled substances in Texas, the State [EOIR Docket No. 18–0202]
fundamental condition for obtaining in which he is registered. Accordingly,
and maintaining a practitioner’s RIN 1125–AA81
Respondent is not entitled to maintain
registration. See, e.g., James L. Hooper, his DEA registration, and I will therefore
76 FR 71371 (2011), pet. for rev. denied, EOIR Electronic Filing Pilot Program
order that his registration be revoked.3
481 Fed. Appx. 826 (4th Cir. 2012); see AGENCY: Executive Office for
also Frederick Marsh Blanton, 43 FR Order Immigration Review, Department of
27616 (1978) (‘‘State authorization to Justice.
dispense or otherwise handle controlled Pursuant to the authority vested in me
ACTION: Public notice.
substances is a prerequisite to the by 21 U.S.C. 823(f) and 824(a), as well
issuance and maintenance of a Federal as 28 CFR 0.100(b), I order that DEA SUMMARY: The Executive Office for
controlled substances registration.’’). Certificate of Registration No. Immigration Review (EOIR) is creating a
This rule derives from the text of two MM2890312, issued to Kevin G. voluntary pilot program to test an
provisions of the CSA. First, Congress Morgan, RN/APN, be, and it hereby is, expansion of electronic filing for cases
defined ‘‘the term ‘practitioner’ [to] revoked. I further order that any filed with the immigration courts and
mean[ ] a . . . physician . . . or other pending application of Kevin G. Morgan the Board of Immigration Appeals (BIA).
person licensed, registered or otherwise to renew or modify the above This notice describes the procedures for
permitted, by . . . the jurisdiction in registration, or any pending application participation in the pilot program.
which he practices . . . to distribute, of Kevin G. Morgan for any other DEA DATES: The pilot program will be in
dispense, [or] administer . . . a registration in the State of Texas, be, effect from July 16, 2018 until July 31,
controlled substance in the course of and it hereby is, denied. This Order is 2019. Initially, expanded electronic
professional practice.’’ 21 U.S.C. filing will be available in six
effective immediately.4
802(21). Second, in setting the immigration courts, but will be
requirements for obtaining a Dated: June 14, 2018.
expanded to all remaining courts and
practitioner’s registration, Congress Robert W. Patterson, the BIA incrementally. Eligible
directed that ‘‘[t]he Attorney General Acting Administrator. attorneys and accredited representatives
shall register practitioners . . . if the [FR Doc. 2018–13530 Filed 6–22–18; 8:45 am] may choose to participate at any time
applicant is authorized to dispense . . .
BILLING CODE 4410–09–P during the pilot program and will be
controlled substances under the laws of
permitted to continue using electronic
the State in which he practices.’’ 21
filing throughout the pendency of
U.S.C. 823(f). Because Congress has
electronically filed cases.
clearly mandated that a practitioner
possess state authority in order to be FOR FURTHER INFORMATION CONTACT:
deemed a practitioner under the CSA, Nathan Berkeley, Acting Chief,
DEA has held repeatedly that revocation Communications and Legislative Affairs
of a practitioner’s registration is the Division, Office of Policy, Executive
appropriate sanction whenever he is no Office for Immigration Review, 5107
longer authorized to dispense controlled Leesburg Pike, Suite 2618, Falls Church,
substances under the laws of the State 3 The CALJ received and considered the VA 22041, telephone (703) 305–0289
in which he engages in professional Government’s Motion for Summary Disposition and (not a toll-free call) or email PAO.EOIR@
practice. See, e.g., Calvin Ramsey, 76 FR Respondent’s Brief. In his brief, Respondent ‘‘d[id] usdoj.gov.
20034, 20036 (2011); Sheran Arden not contest that he is subject to a temporary SUPPLEMENTARY INFORMATION:
suspension of his state prescriptive authority.’’
Yeates, M.D., 71 FR 39130, 39131 I. Background
Resp. Br. at 1. However, Respondent argued that he
(2006); Dominick A. Ricci, 58 FR 51104, will be presenting evidence at ‘‘a probable cause
51105 (1993); Bobby Watts, 53 FR In 1998, Congress passed the
hearing to be held on March 6, 2018,’’ that his
11919, 11920 (1988); Blanton, 43 FR at suspension ‘‘was granted on flawed information
Government Paperwork Elimination
27616. and false allegations,’’ and that he ‘‘has not had the Act, which required federal agencies to
Moreover, because ‘‘the controlling chance to defend his self [sic] against these provide the public with the ability to
question’’ in a proceeding brought allegations.’’ Id. However, as already noted above, conduct business electronically with the
under 21 U.S.C. 824(a)(3) is whether the the TSBN suspended Respondent’s nursing license federal government. See Public Law
holder of a practitioner’s registration ‘‘is and his authority to issue prescriptions. GX 2, at 17. 105–277 (Oct. 21, 1998). Similarly, in
As of the date of this order, Respondent has not
currently authorized to handle 2002, Congress passed the E-
filed a motion for reconsideration on the ground
controlled substances in the [S]tate,’’ that the TSBN has lifted the suspension. The CALJ
Government Act of 2002, which
Hooper, 76 FR at 71371 (quoting Anne concluded that the fact that the State has yet to promoted electronic government
Lazar Thorn, 62 FR 12847, 12848 provide a hearing to challenge Respondent’s services and required agencies to use
(1997)), the Agency has also long held suspension does not change the undisputed fact internet-based technology to increase
that revocation is warranted even where that Respondent’s state prescriptive authority is the public’s access to government
a practitioner has lost his state authority suspended. R.D. at 7–8. Accordingly, if the CALJ information and services. See Public
amozie on DSK3GDR082PROD with NOTICES1

by virtue of the State’s use of summary had the authority to issue his conclusion rejecting Law 107–347 (Dec. 17, 2002).
Respondent’s argument, I would have adopted this
process and the State has yet to provide As a result, EOIR began pursuing a
conclusion.
a hearing to challenge the suspension. 4 For the same reasons which led the TSBN to
long-term agency plan to create an
Bourne Pharmacy, 72 FR 18273, 18274 suspend Respondent’s license and prescriptive
electronic case access and filing system
(2007); Wingfield Drugs, 52 FR 27070, authority, I conclude that the public interest for the immigration courts and BIA. See
27071 (1987). Thus, it is of no necessitates that this Order be effective 68 FR 71650 (Dec. 20, 2003) (‘‘The
consequence that the TSBN summarily immediately. 21 CFR 1316.67. Department is . . . designing an

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Document Created: 2018-06-23 02:29:17
Document Modified: 2018-06-23 02:29:17
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		83 FR 29573
83 FR 29573 - Decision and Order: Kevin G. Morgan, RN/APN

DEPARTMENT OF JUSTICEDrug Enforcement Administration

Federal Register Volume 83, Issue 122 (June 25, 2018)

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
