[Federal Register Volume 82, Number 149 (Friday, August 4, 2017)]
[Notices]
[Pages 36421-36423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-16446]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 17-22]


John D. Bray-Morris, M.D.; Decision and Order

    On February 15, 2017, the Assistant Administrator, Division of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to John D. Bray-Morris, M.D. (hereinafter, Respondent), of 
Moriarty, New Mexico. The Show Cause Order proposed the revocation of 
Respondent's DEA Certificate of Registration No.FB5001538, on the 
ground that he does not hold authority to dispense controlled 
substances in New Mexico, the State in which he is registered with the 
Agency. Show Cause Order, at 1 (citing 21 U.S.C. 824(a)(3)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Respondent is registered as a practitioner authorized to 
dispense controlled substances in schedules II through V, at the 
registered address of 1108 Route 66, P.O. Box 1520, Moriarty, New 
Mexico. Id. The Show Cause Order alleged that this registration expires 
on July 31, 2017. Id.
    As for the substantive basis of the proposed action, the Show Cause 
Order alleged that on January 13, 2017, ``the New Mexico [Medical] 
Board . . . entered an Order of Immediate Suspension and Notice of 
Contemplated Action . . . suspending [Respondent's] New Mexico Medical 
License No. 2003-0404 effective on that same date, which remains in 
effect until further Order of the Board, and that the Board 
contemplates additional action of restricting, suspending or revoking 
[his] license to practice as a physician.'' Id. at 2. The Show Cause 
Order thus alleged that the Board's ``Order prohibits [Respondent] from 
practicing medicine in the State of New Mexico.'' Id.
    The Show Cause Order also alleged that the Board's Order of 
Immediate Suspension was based on Respondent's violation of an earlier 
Board order which suspended his medical license for violations of the 
State's Medical Practice Act. Id. The Show Cause Order alleged that 
these included ``unprofessional or dishonorable conduct, including . . 
. injudicious prescribing . . . and violation of a drug law.'' Id. The 
Show Cause Order alleged that the earlier Board order ``commanded that 
[Respondent] abstain completely from the use of mind-altering 
substances and controlled substances . . . [and] that [he] enroll in 
and maintain compliance with, [the] New Mexico Monitored Treatment 
Program for habitual or excessive use of intoxicants or drugs.'' Id. at 
2.
    The Show Cause Order further alleged that the Board's 2017 Order of 
Immediate Suspension was based on numerous new allegations, including, 
inter alia, that Respondent ``resumed the personal and unlawful use of 
opioid drugs'' and that he ``willfully thwarted the Board's drug 
screenings.'' Id. The allegations also include that he ``prescribed 
large and varied amounts of controlled substances to patients without 
adequate medical justification,'' engaged in ``injudicious and non-
therapeutic prescribing of controlled substances,'' ``failed to screen 
patients for substance abuse disorders,'' ``diverted controlled 
substances that [he] prescribed . . . to patients from those patients 
for [his] personal use,'' and ``falsified'' medical records ``to 
justify the prescribing of controlled substances.'' Id.
    The Show Cause Order thus alleged that pursuant to the Board's 
Order, Respondent is ``not permitted to practice medicine in New 
Mexico'' and therefore ``lack[s] authority to handle controlled 
substances in'' the State. Id. at 3. The Show Cause Order also asserted 
that Respondent's ``lack of authority to handle controlled substances 
in New Mexico constitutes grounds to revoke [his] DEA [r]egistration.'' 
Id. at 3 (citing 21 U.S.C. 802(21) and 824(a)(3)).
    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, and the procedure for electing either 
option. Show Cause Order, at 3-4 (citing 21 CFR 1301.43). Finally, the 
Order notified Respondent of his right to submit a corrective action 
plan. See 21 U.S.C. 824(c)(2)(C).
    On February 22, 2017, a DEA Diversion Investigator assigned to the 
Albuquerque District Office personally served the Show Cause Order on 
Respondent. Gov. Mot. for Summ. Disp., at GX D, at 1-2. Thereafter, on 
March 23, 2017, Respondent, through his counsel, requested a hearing on 
the allegations and a stay pending resolution of the New Mexico Medical 
Board matter, then scheduled for May 17-19, 2017. See Resp. Hrng. Req. 
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 March 23, 2017, the CALJ ordered the Government to ``file proof 
of service'' as well as evidence to support the lack of state authority 
allegation, as well as any motion for summary disposition, any motion 
challenging the timeliness of the hearing request, and any response to 
Respondent's stay request by March 31, 2017 at 2 p.m. See Order 
Directing the Filing of Government Evidence of Lack of State Authority 
Allegation and Briefing Schedule. The CALJ's order also directed that, 
in the event the Government filed a motion for summary disposition or a 
motion challenging the timeliness of his hearing request, Respondent 
was to file any response by April 10, 2017 at 2 p.m. Id.
    On March 31, 2017, the Government filed its Motion for Summary 
Disposition. See Gov. Mot. for Summ. Disp. As support for its Motion, 
the Government provided a copy of Respondent's Certificate of 
Registration showing that he is registered in New Mexico, a certified 
copy of the New Mexico Medical Board's Order of Immediate Suspension 
and Notice of Contemplated Action (Jan. 13, 2017), a printout of 
Respondent's licensing status as of March 25, 2017 from the Board's Web 
site, and a Declaration from a Diversion Investigator (DI). Id. at 
Exhibits A-D. Based on the suspension of his medical license by the New 
Mexico Medical Board, the Government moved for summary disposition and 
a recommendation by the ALJ that Respondent's DEA practitioner's 
registration be revoked and that any pending applications for a 
registration in New Mexico be denied. Mot. for Summ. Disp., at 8. The 
Government also requested that the CALJ deny Respondent's requests for 
a hearing and a stay of the proceeding. Id.
    On April 10, 2017, Respondent filed his reply, requesting that the 
ALJ deny the Government's motion and stay the matter until after the 
Board hearing. Respondent's Reply, at 1. While Respondent admitted that 
his license to practice medicine in New Mexico had been suspended, he 
stated that ``he has not yet had an opportunity to challenge the 
allegations in the . . . Order'' and that ``a due process hearing [was]

[[Page 36422]]

scheduled for May 17-18, 2017.'' Id. Respondent stated that he 
``contests many of the allegations contained in the Summary Suspension 
Order and the Notice of Contemplated Action'' and that ``it will not be 
appropriate or proportional discipline for the Medical Board to uphold 
the suspension or to revoke his license.'' Id. at 1-2.
    Respondent also argued that ``[t]he plain language of Section 
824(a)(3) provides that the loss of state authority constitutes a 
discretionary, not mandatory, basis for revocation.'' Id. at 2. He 
further argued that ``a stay . . . would afford [him] with his due 
process right to be heard in a meaningful manner in the State . . . 
proceeding.'' Id. at 2 (citation omitted). He also argued that the 
Government would not suffer any prejudice should a stay be granted 
because ``the Medical Board proceeding will be completed within the 
next few months.'' Id. And finally, he contended that ``[i]f . . . [he] 
prevailed in his administrative hearing in front of the Medical Board, 
it would be contrary to due process considerations and judicial economy 
to then force [him] to reapply for his'' DEA registration. Id.
    On April 11, 2017, the CALJ granted the Government's motion and 
recommended that Respondent's registration be revoked. Order Denying 
The Respondent's Request For A 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 
(hereinafter, R.D.), at 4-5.
    Denying Respondent's request for a stay, the CALJ noted that the 
Agency has repeatedly held 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.'' Id. 
at 3 (quoting Kamal Tiwari, 76 FR 71604, 71606 (2011)). The CALJ also 
explained that ``[e]ven when the Respondent is actively engaged in 
appealing a temporary decision, the Agency has noted that `[i]t is not 
DEA's policy to stay [administrative] proceedings . . . while 
registrants litigate in other forums,'' id. (quoting Newcare Home 
Health Servs., 72 FR 42126, 42127 n.2), and that a stay ``is `unlikely 
to ever be justified' due to ancillary proceedings.'' Id. at 3-4 
(citing Grider Drug #1 & Grider Drug #2, 77 FR 44070, 44104 n.97 
(2012)).\1\
---------------------------------------------------------------------------

    \1\ The CALJ also cited Odette L. Campbell, 80 FR 41062, 41064 
(2015), which he characterized 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.'' R.D. at 4. However, before the hearing was even held, 
Campbell allowed her registration to expire and she submitted an 
application only after she received a largely favorable decision 
from an ALJ. Thus, the matter did not involve a revocation, but 
rather, an application. Moreover, had Campbell been convicted of 
health care fraud, she would have been subject to mandatory 
exclusion from federal health care programs and her application 
would have been subject to denial on that basis.
---------------------------------------------------------------------------

    The CALJ also granted the Government's motion for summary 
disposition. Id. at 6. According to the CALJ, ``[d]espite the 
discretionary language set forth in [section] 824(a)(3) and highlighted 
by the Respondent . . . DEA has long held that possession of authority 
under state law to dispense controlled substances is not only a 
prerequisite to obtaining a DEA registration but also an essential 
condition for maintaining it.'' Id. at 4 (citing cases). The CALJ then 
explained that ``[t]he basis for the Agency's position lies with two 
other statutes in the Controlled Substances Act (CSA) which requires 
that, in order to obtain or maintain a DEA registration, a practitioner 
must be authorized to handle controlled substances in the state in 
which he practices.'' Id. (citing 21 U.S.C. 823(f) and 802(21)). The 
CALJ then explained that ``[b]ecause, in the Agency's view, `possessing 
authority under state law to handle controlled substances is an 
essential condition for holding a DEA registration,' the Agency has 
consistently held that `the CSA requires the revocation of a 
registration issued to a practitioner who lacks [such] authority.' '' 
Id. at 5 (citations omitted). Because there is ``no dispute . . . that 
. . . Respondent currently lacks state authority to handle controlled 
substances in New Mexico due to the Board['s Jan. 13, 2017] Order,'' 
the CALJ held that ``he is not entitled to maintain his . . . 
registration'' and granted the Government's motion for summary 
disposition. Id. at 6.
    Neither party filed exceptions to the CALJ's Recommended Decision. 
Thereafter, the record was forwarded to my Office for Final Agency 
Action. Having considered the record and the Recommended Decision, I 
adopt the CALJ's recommendation that I revoke Respondent's 
registration.\2\ I make the following factual findings.
---------------------------------------------------------------------------

    \2\ I also adopt the ALJ's ruling denying Respondent's motion 
for a stay of the proceeding. As for Respondent's contention that a 
stay of this proceeding ``would afford [him] with his due process 
right to be heard in a meaningful manner in the State . . . 
proceeding,'' Resp.'s Reply, at 2, the New Mexico Board has an 
obligation to provide him with Due Process regardless of whether a 
stay is granted in this proceeding. See U.S. CONST., amend. XIV, 
Sec.  1. As for his further contention that if he ``prevailed . . . 
in front of the Medical Board, it would be contrary to due process 
considerations and judicial economy to . . . force [him] to reapply 
for his'' DEA registration, all DEA registrants (including those who 
have never been subject to a DEA Show Cause proceeding) are required 
to periodically reapply for their registration; he also provides no 
authority for the notion that there is a property interest under the 
Due Process Clause in not having to periodically reapply for a 
registration. I thus reject his contention that he was entitled to a 
stay.
---------------------------------------------------------------------------

Findings

    Respondent holds DEA Certificate of Registration No. FB5001538, 
pursuant to which he is authorized to dispense controlled substances in 
schedules II-V as a practitioner, at the registered address of 1108 
Route 66, P.O. Box 1520, Moriarty, New Mexico. Mot. for Summ. Disp., at 
GX A. His registration does not expire until July 31, 2017. Id.
    On January 13, 2017, the New Mexico Medical Board issued an Order 
of Immediate Suspension and Notice of Contemplated Action to 
Respondent, suspending his license to practice medicine. Mot. for Summ. 
Disp., Exhibit B, at 1-8. According to Respondent, a Board hearing was 
scheduled for May 17-18, 2017. Resp. Reply, at 1. However, subsequent 
to the CALJ's issuance of his decision, Respondent has submitted no 
evidence showing that his license had been reinstated, and according to 
the Board's Web site of which I take official notice, Respondent's 
license to practice medicine in New Mexico remains suspended as of the 
date of this Order. See Respondent's Reply, at 1, see also Board Web 
site at http://cgi.docboard.org/cgi-shl/nhayer.exe.\3\
---------------------------------------------------------------------------

    \3\ In accordance with the Administrative Procedure Act (APA), 
an agency ``may take official notice of facts at any stage in a 
proceeding-even in the final decision.'' U.S. Dept. of Justice, 
Attorney General's Manual on the Administrative Procedure Act 80 
(1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). In accordance with 
the APA and DEA's regulations, Respondent is ``entitled on timely 
request to an opportunity to show to the contrary.'' 5 U.S.C. 
556(e); see also 21 CFR 1316.59(e). To allow Respondent the 
opportunity to refute the facts of which I take official notice, 
Respondent may file a motion for reconsideration within 15 calendar 
days of the date of service of this Order which shall commence on 
the date this Order is mailed.
---------------------------------------------------------------------------

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 
Controlled Substances Act (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.'' With respect 
to

[[Page 36423]]

a practitioner, DEA has also 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); Frederick Marsh Blanton, 43 FR 
27616 (1978).
    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 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., Hooper, 76 
FR at 71371-72; Sheran Arden Yeates, 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, revocation is warranted even when a state board has 
resorted to summary process in suspending a practitioner's dispensing 
authority and the state has yet to provide the practitioner with a 
hearing to challenge the board's action. This is so ``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.' '' Gentry Reeves 
Dunlop, 82 FR 8432, 8433 (2017) (quoting Hooper, 76 FR at 71371 
(quoting Anne Lazar Thorn, 62 FR 12847, 12848 (1997))); see also Bourne 
Pharmacy, 72 FR 18273, 18274 (2007); Wingfield Drugs, 52 FR 27070, 
27071 (1987). Thus, it is of no consequence that the New Mexico Board 
has employed summary process in suspending Registrant's state license. 
What is consequential is that Respondent is no longer currently 
authorized to dispense controlled substances in the State in which he 
is registered.
    In his reply to the Government's Motion for Summary Disposition, 
Respondent argued that the authority contained in 21 U.S.C. 824(a)(3) 
is a ``discretionary, not mandatory basis for revocation.'' 
Respondent's Reply, at 2. While Respondent cites James Alvin Chaney, 80 
FR 57391 n.1 (2015), as support for his contention, footnote one of the 
Agency's Decision in Chaney addressed whether the respondent in that 
case had an active registration. Moreover, Respondent's contention that 
the Agency's sanction authority in cases involving a practitioner's 
loss of his state controlled substance dispensing authority remains 
discretionary, was squarely addressed and rejected in footnote 2 of the 
Chaney decision, as it has been in countless Agency decisions. See 
Chaney, 80 FR 57391 n.2; see also, e.g., Charles Szyman, 81 FR 64937, 
64938 n.1 (2016); see also Rezik A. Saqer, 81 FR 22122, 22127 (2016); 
James L. Hooper, 76 FR 71371 (2011). And the Agency's rule has been 
upheld by two courts of appeals. See Hooper v. Holder, 481 Fed. Appx. 
826, 828 (4th Cir. 2012) (``[b]ecause sections 823(f) and 802(21) make 
clear that a practitioner's registration is dependent upon the 
practitioner having state authority to dispense controlled substances, 
the [Administrator's] decision to construe section 824(a)(3) as 
mandating revocation upon suspension of a state license is not an 
unreasonable interpretation of the CSA''); Maynard v. DEA, 117 Fed. 
Appx. 941, 944-45 (5th Cir. 2004) (rejecting contention that DEA could 
not revoke practitioner's registration where state board's disciplinary 
panel ``merely temporarily suspended'' medical license ``without 
notice''). I will therefore order that Respondent's registration be 
revoked and that any pending application be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration 
No.FB5001538, issued to John D. Bray-Morris, M.D., be, and it hereby 
is, revoked. Pursuant to the authority vested in me by 21 U.S.C. 
823(f), I further order that any pending application of John D. Bray-
Morris, M.D., to renew or modify his registration, or for any other 
registration in the State of New Mexico, be, and it hereby is, denied. 
This Order is effective immediately.\4\
---------------------------------------------------------------------------

    \4\ For the same reasons that led the New Mexico Board to 
summarily suspend Respondent's medical license, I find that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.

    Dated: July 27, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-16446 Filed 8-3-17; 8:45 am]
 BILLING CODE 4410-09-P