William J. O'Brien, III, D.O.; Decision and Order, 46527-46529 [2017-21380]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 82, Number 192 (Thursday, October 5, 2017)]
[Notices]
[Pages 46527-46529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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]
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