Richard Jay Blackburn, D.O.; Decision and Order, 18669-18673 [2017-08014]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 82, Number 75 (Thursday, April 20, 2017)]
[Notices]
[Pages 18669-18673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08014]



[[Page 18669]]

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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\
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    \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.
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    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.
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    \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.
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    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.
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    \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.
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    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\
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    \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).
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    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.
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    \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.
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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.
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    \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.
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    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