[Federal Register Volume 70, Number 95 (Wednesday, May 18, 2005)]
[Notices]
[Pages 28574-28575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9836]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Robert A. Burkich, M.D.; Revocation of Registration

    On August 23, 2004, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Robert A. Burkich, M.D. (Dr. Burkich) of 
Nashville, Tennessee, notifying him of an opportunity to show cause as 
to why DEA should not revoke his DEA Certificate of Registration 
BB4812043, as a practitioner, under 21 U.S.C. 824(a)(3) and deny any 
pending applications for renewal or modification of that registration 
pursuant to 21 U.S.C. 823(f). As a basis for revocation, the Order to 
Show Cause alleged that Dr. Burkich is not currently authorized to 
practice medicine or handle controlled substances in Tennessee, his 
state of registration and practice.
    On September 15, 2004, Dr. Burkich, acting pro se, filed a Waiver 
of Hearing and Written statement (Written Statement) with the Hearing 
Clerk of the DEA Office of Administrative Law Judges. The investigative 
file and Written Statement were than forwarded to the Deputy 
Administrator for her final order.
    The Deputy Administrator finds Dr. Burkich waived his right to a 
hearing and, in lieu of a hearing, submitted a Written Statement 
regarding his

[[Page 28575]]

position on the matters of fact and law that are involved in this 
proceeding. Accordingly, after considering material from the 
investigative file and Dr. Burkich's Written Statement, the Deputy 
Administrator now enters her final order without a hearing pursuant to 
21 CFR 1301.43(c) and (e) and 1301.46.
    The Deputy Administrator finds Dr. Burkich currently possesses DEA 
Certificate of Registration BB4812043, which expires on July 31, 2005. 
The Deputy Administrator further finds that on March 17, 2004, 
Tennessee Board of Medical Examiners (Tennessee Board) issued a Final 
Order revoking Dr. Burkich's license to practice medicine in Tennessee. 
The Tennessee Board's action was based upon its findings of fact that 
Dr. Burkich had been convicted in the United States District Court for 
the Eastern District of Tennessee of one felony count of mail fraud (18 
U.S.C. 1341) and that the Georgia Composite State Board of Medical 
Examiners (Georgia Board) had revoked Dr. Burkich's license to practice 
medicine in Georgia, as a result of that conviction.
    In his Written Statement, Dr. Burkich concedes he pled guilty to 
the criminal charge. However, he alleges he had a viable defense of 
entrapment and only pled guilty after being misadvised by his retained 
defense counsel who, Dr. Burkich asserts, was ineffective and had a 
conflict of interest. Attached to his Written Statement is a Motion for 
a Certificate of Appealability, which Dr. Burkich filed in the United 
States Court of Appeals for the Sixth Circuit (Case No. 04-6027). In 
that Motion, Dr. Burkich asserts in detail the factual and legal basis 
for the claims in his Written Statement.
    The Deputy Administrator has determined that on November 23, 2004, 
the court of Appeals issued an Order denying Dr. Burkich's Motion for a 
Certificate of Appealability. He subsequently filed a Petition for an 
En Banc Rehearing which has not yet been acted upon by the Court. 
Accordingly, the federal conviction which was the underlying basis for 
Dr. Burkich's license revocation remains a valid judgment.
    More significantly for purposes of this proceeding, Dr. Burkich 
does not contend in either his Written Statement or the accompanying 
Motion, that the Tennessee Board's Final Order has been stayed, 
modified or terminated or that either of his state medical licenses 
have been reinstated. Further, there is no evidence in the 
investigative file indicating the Tennessee Board's Final Order is no 
longer in effect.
    Therefore, the Deputy Administrator finds Dr. Burkich is not 
currently authorized to practice medicine in the States of Tennessee 
and Georgia. As a result, it is reasonable to infer he is also without 
authorization to handle controlled substances in either state.
    DEA does not have statutory authority under the Controlled 
Substances Act to issue or maintain a registration if the applicant or 
registrant is without state authority to handle controlled substances 
in the state in which he conducts business. See 21 U.S.C. 802(21), 
823(f) and 824(a)(3). This prerequisite has been consistently upheld. 
See Stephen J. Graham, M.D., 69 FR 11661 (2004); Dominick A. Ricci, 
M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).
    Here, it is clear Dr. Burkich's Tennessee medical license has been 
revoked and he is not currently licensed to handle controlled 
substances in that state, where he is registered with DEA. Therefore, 
he is not entitled to a DEA registration in Tennessee.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in her by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA 
Certificate of Registration BB4812043, issued to Robert A. Burkich, 
M.D., be, and it hereby is, revoked. The Deputy Administrator further 
orders that any pending applications for renewal or modification of 
such registration be, and they hereby are, denied. This order is 
effective June 17, 2005.

    Dated: May 9, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-9836 Filed 5-17-05; 8:45 am]
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