[Federal Register Volume 82, Number 108 (Wednesday, June 7, 2017)]
[Notices]
[Pages 26516-26518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11797]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 17-14]


Emmanuel O. Nwaokocha, M.D.; Decision and Order

    On December 5, 2016, the Assistant Administrator, Diversion Control 
Division, Drug Enforcement Administration (DEA), issued an Order to 
Show Cause to Emmanuel O. Nwaokocha, M.D. (Respondent), of Harwood 
Heights, Illinois. The Show Cause Order proposed the revocation of 
Respondent's DEA Certificate of Registration No. FN5571864 on the 
ground that he ``do[es] not have authority to handle controlled 
substances in the State of Illinois, the [S]tate in which [he is] 
registered with the DEA.'' Order to Show Cause, at 1 (citing 21 U.S.C. 
823(f) and 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. FN5571864, pursuant to which he is authorized to dispense 
controlled substances as a practitioner in schedules II through V, at 
the registered address of 4740 N. Harlem Ave., Harwood Heights, 
Illinois. Id. The Order also alleged that this registration does not 
expire until October 31, 2018. Id.
    Regarding the substantive grounds for the proceeding, the Show 
Cause Order alleged that on March 15, 2016, the Illinois Department of 
Financial and Professional Regulation, Division of Professional 
Regulation (IDFPR), ``indefinitely suspended [his] license to practice 
medicine due to [his] conviction for Medicaid fraud,'' and he is 
therefore ``without authority to handle controlled substances in the 
State of Illinois, the [S]tate in which [he is] registered with the 
DEA.'' Id. Based on his ``lack of authority to [dispense] controlled 
substances in . . . Illinois,'' the Order asserted that ``DEA must 
revoke'' his registration. Id. at 2 (citing 21 U.S.C. 823(f) and 
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. (citing 21 
CFR 1301.43). The Show Cause Order also notified Respondent of his 
right to submit a corrective action plan. Id. at 2-3.
    On December 13, 2016, a Diversion Investigator from the Chicago 
Field Division personally handed a copy of the Order to Show Cause to 
the Respondent at his residence located at 9453 Lorel Ave., Skokie, 
Illinois 60077. Government's Submission of Evidence and Request for 
Summary Disposition (hereinafter, Govt. Mot.), Exhibit (hereinafter, 
GX) 1, at 1. Following service of the Show Cause Order, Respondent 
requested a hearing on the allegations. The matter was placed on the 
docket of the Office of Administrative Law Judges and assigned to Chief 
Administrative Law Judge John J. Mulrooney, II (hereinafter, CALJ). On 
January 4, 2017, the CALJ ordered the Government to submit evidence to

[[Page 26517]]

support the allegation, and any motion for summary disposition, no 
later than January 17, 2017. Order Directing the Filing of Government 
Evidence or Lack of State Authority Allegation and Briefing Schedule, 
at 1. The CALJ also directed Respondent to file his response to any 
summary disposition motion no later than January 27, 2017. Id.
    On January 13, 2017, the Government filed its Request for Summary 
Disposition. In its Request, the Government argued that it is 
undisputed that Respondent lacks authority to handle controlled 
substances in Illinois because the IDFPR indefinitely suspended 
Respondent's medical license. Govt. Mot. at 2. The Government further 
argued ``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 both obtaining 
and maintaining a practitioner's registration,'' and that under the 
DEA's precedents, revocation is warranted even where a State has 
invoked summary process to suspend a practitioner's state authority and 
has yet to provide the practitioner with a hearing where he may 
prevail. Govt. Mot., at 4-5 (citations omitted). As support for its 
summary disposition request, the Government attached, inter alia, a 
copy of the IDFPR's March 15, 2016 Order placing an ``INDEFINITE 
SUSPENSION'' on Respondent's Illinois Physician and Surgeon license, a 
letter from the Acting Director of the IDFPR confirming that the 
indefinite suspension ``remains in effect as of January 10, 2017,'' and 
a January 12, 2017 printout from the IDFPR's Web site showing that his 
license status was ``SUSPENDED.'' Id. at GX 1, Attachments D-F.
    In his responsive pleading, Respondent did not dispute that his 
medical license had been suspended by the State of Illinois, and that 
``[t]he order of suspension is in effect.'' Respondent's Response to 
Government's Request for Summary Disposition (hereinafter, Resp. 
Reply), at 2. Instead, he argued that he ``anticipated'' that his 
motion to stay the suspension pending his appeal of the IDFPR's 
suspension order would be decided on February 14, 2017, and that an 
order granting such motion would enable him to resume practicing 
medicine. Id. He further argued that there was a ``likelihood'' that 
his stay motion would be granted by the Illinois Circuit Court because 
a stay motion had been granted in a prior appeal. Id. Respondent also 
argued that the CALJ should delay ruling because, in Respondent's view, 
DEA was enforcing a ``discretionary'' ground for denying his revocation 
pursuant to 21 U.S.C. 824(a)(3), not a mandatory ground. Id. at 3. 
Lastly, Respondent argued that Due Process required the CALJ to give 
Respondent ``an opportunity to be heard at a meaningful time,'' and 
that a ``meaningful time'' was after the Illinois Circuit Court had 
ruled. Id. at 3-4. As a result, Respondent requested that the CALJ deny 
or stay the Government's Request for Summary Disposition ``pending a 
decision by the Circuit Court.'' Id. at 4.
    On January 30, 2017, the Government filed its opposition to 
Respondent's request for a stay with the CALJ. The Government noted 
that a practitioner's expectation of obtaining state authority in a 
concurrent legal proceeding is not a basis to stay revocation 
proceedings against a practitioner who lacks such authority because the 
Controlled Substances Act (CSA) requires practitioners to hold state 
authority in order to be registered. Government's Opposition to Dr. 
Nwaokocha's Request for a Stay at 2-3. In the same vein, the Government 
contended that, when a practitioner's state license is suspended, then 
revocation of that practitioner's DEA registration is mandatory. Id. at 
3-4 (citing 21 U.S.C. 802(21) and 821(f) [sic]).
    The CALJ rejected Respondent's request for a stay, noting that 
``revocation is warranted even where a practitioner's state authority 
has been summarily suspended and the State has yet to provide the 
practitioner with a hearing to challenge the State's action and at 
which he . . . may ultimately prevail.'' Order Denying the Respondent's 
Request for Stay; Granting the Government's Motion for Summary 
Disposition; and Recommended Rulings, Findings of Fact, Conclusions of 
Law, and Decision of the Administrative Law Judge (R.D.) at 3 (citing 
21 U.S.C. 802(21) and 823(f) (quotations and citations omitted)). While 
he was ``not unmindful of the Respondent's arguments concerning the 
Agency's expenditure of resources should his state authority be 
reinstated on February 14, 2017,'' the CALJ noted that the DEA has 
previously held ``that a stay in administrative enforcement proceedings 
is `unlikely to ever be justified' due to ancillary proceedings 
involving the Respondent.'' Id. at 4 (quoting Grider Drug #1 & Grider 
Drug #2, 77 FR 44070, 44104 n.97 (2012)).\1\
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    \1\ I agree with this statement of the Agency's precedents. 
However, the CALJ also cited Odette L. Campbell, 80 FR 41062 (2015), 
as contrary authority. See id. The CALJ characterized Campbell as 
``holding revocation proceedings in abeyance at the post-hearing 
adjudication level for a lengthy period pending the resolution of 
both criminal fraud charges and concurrent state administrative 
proceedings against the respondent.'' Id. For the reasons I have set 
forth in past decisions, see e.g., Judson H. Somerville, 82 FR 
21408, 21409 n.3 (2017), I respectfully disagree with the CALJ's 
reading of Campbell.
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    The CALJ then found that there was no dispute over the material 
fact that ``Respondent currently lacks state authority to handle 
controlled substances in Illinois due to the IDFPR['s] Order dated 
March 15, 2016, which temporarily \2\ suspended his state license to 
practice medicine.'' Id. at 6-7. Reasoning that ``[b]ecause . . . 
Respondent lacks state authority at the present time . . . he is not 
entitled to maintain his DEA registration,'' the CALJ granted the 
Government's request and recommended that his registration be revoked 
and that any pending renewal applications be denied. Id.
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    \2\ By its terms, the IDFPR's Order states that Respondent was 
``placed on INDEFINITE SUSPENSION.'' GX 1, Attachment D at 8.
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    Neither party filed exceptions to the CALJ's Recommended Decision. 
Thereafter, the record was forwarded to my Office for Final Agency 
Action. Having reviewed the record, I adopt the CALJ's finding that by 
virtue of the IDFPR's Order, Respondent is currently without authority 
to handle controlled substances in Illinois, the State in which he 
holds his registration with the Agency, and is thus not entitled to 
maintain his registration. I further adopt the CALJ's recommendation 
that I revoke his registration and deny any pending application. I make 
the following factual findings.

Findings of Fact

    Respondent is a physician who holds Illinois Medical License No. 
036067760. See GX 1, Attachment E, at 1. However, on March 15, 2016, 
the IDFPR issued an Order indefinitely suspending Respondent's medical 
license. GX 1, Attachment D, at 8. The Panel further ordered that the 
suspension be ``implemented as of the date of the Order.'' Id. 9. 
Respondent offered no evidence in his Response to the Government's 
Request or at any time thereafter showing that the IDFPR has lifted the 
suspension. Based on the above, I find that Respondent does not 
currently have authority under the laws of Illinois to dispense 
controlled substances.
    Respondent is also the holder of DEA Certificate of Registration 
No. FN5571864, pursuant to which he is authorized to dispense 
controlled substances in schedules II through V as a practitioner, at 
the address of 4740 N. Harlem Ave., Harwood Heights, Illinois. GX 1, 
Attachment A. This registration

[[Page 26518]]

does not expire until October 31, 2018. Id.

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.'' 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).
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a DEA 
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 IDFPR has indefinitely suspended 
Respondent's state license and that Respondent may prevail on his 
appeal to Illinois Cook County Circuit Court.\3\ What is dispositive is 
the fact that Respondent is not currently authorized to dispense 
controlled substances in the State in which he is registered.
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    \3\ Similarly, and contrary to Respondent's claim, Due Process 
does not require the CALJ to delay summary disposition of the case 
until his motion to stay pending before the Illinois Circuit Court 
had been decided. Resp. Reply at 3-4. Rather, Due Process required 
the CALJ to provide Respondent the opportunity to respond to the 
Order to Show Cause and the Government's Request for Summary 
Disposition. The CALJ did provide Respondent such an opportunity, 
and the Respondent did so respond. Respondent provided no authority 
for the notion that the CALJ violated Respondent's right to Due 
Process by, in fact, providing Respondent an ``opportunity to be 
heard'' instead of delaying such opportunity. Respondent's claim 
that the CALJ should have delayed his recommended decision is 
particularly unavailing where, as here, there are no controlling 
facts in dispute.
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    Here, there is no dispute over the material fact that Respondent is 
no longer currently authorized to dispense controlled substances in 
Illinois, the State in which he is registered. Accordingly, he is not 
entitled to maintain his registration. I will therefore adopt the 
CALJ's recommendation that I revoke Respondent's registration and deny 
any pending applications to renew or modify his registration. R.D. at 
7.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) and 
28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
FN5571864 be, and it hereby is, revoked. Pursuant to the authority 
vested in me by 21 U.S.C. 823(f), I order that any applications to 
renew or modify the above registration be, and they hereby are, denied. 
This Order is effective immediately.\4\
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    \4\ For the same reasons which led the IDFPR to order the 
indefinite suspension of Respondent's medical license, I conclude 
that the public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: May 30, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-11797 Filed 6-6-17; 8:45 am]
 BILLING CODE 4410-09-P