Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Notices 29573 

3 DEA’s brief appears to agree with Respondent’s 

reading of Kwan Bo Jin while distinguishing it on 

the facts. RFAA, at 5–6. As recognized in 21 CFR 

1301.43, a written statement ‘‘shall be considered 

in light of the lack of opportunity for crossexamination in determining the weight to be 

attached to matters of fact asserted therein.’’ In this 

case, other credible evidence, such as the District 

Court’s acceptance of the Respondent’s guilty plea, 

the application of the Sentencing Guidelines 

provision crediting Respondent with accepting 

responsibility, and the concession by the AUSA in 

the criminal case that Respondent accepted 

responsibility, supports Respondent’s contention 

that he has accepted responsibility. 

Gregory D. Owens, D.D.S., 74 FR 36751, 

36757 and n.22 (2009) (‘‘The residents 

of this Nation’s poorer areas are as 

deserving of protection from diverters as 

are the citizens of its wealthier 

communities, and there is no legitimate 

reason why practitioners should be 

treated any differently because of where 

they practice or the socioeconomic 

status of their patients.’’ Considering 

community impact evidence would 

‘‘inject a new level of complexity into 

already complex proceedings and take 

the Agency far afield of the purpose of 

the . . . registration provisions, which 

is to prevent diversion.’’).3

Counsel’s Written Statement suggests 

that Respondent, like the respondent in 

Seglin, ‘‘did not ‘attempt to conceal his 

misconduct and in fact was quite 

straightforward with the investigators.’ ’’ 

GX 7 (Written Statement, at 3, citing 

Melvin N. Seglin, M.D., 63 FR at 70,433). 

As already discussed, Respondent’s 

obstruction of justice was recorded on 

more than one occasion. Thus, although 

I will not revoke Respondent’s 

registration, I reject Counsel’s argument 

that Respondent did not attempt to 

conceal his misconduct. 

As for acceptance of responsibility, 

Agency precedent requires unequivocal 

acceptance of responsibility when a 

respondent has committed knowing or 

intentional misconduct. Lon F. 

Alexander, M.D., 82 FR 49704, 49728 

(2017) (collecting cases) (A respondent 

who committed knowing or intentional 

misconduct must unequivocally 

acknowledge his misconduct.). Cf. 

Melvin N. Seglin, 63 FR at 70433 

(Respondent thought the billing method 

he used was acceptable). Respondent’s 

participation in the multi-year illegal 

cash kickback payment conspiracy was 

just that, knowing and intentional. See, 

e.g., GX 3, at 2–3 (Respondent’s 

admissions in the Plea Agreement to 

knowing and willful criminality); GX 7 

(Government Sentencing Memo, at 2–3) 

(describing the recorded acts forming 

the basis for the obstruction of justice 

enhancement); GX 7 (Transcript of 

Sentencing Hearing, at 37) (AUSA’s 

description of Respondent’s knowing 

and willful acts). 

I find, however, that the record as a 

whole shows the requisite acceptance of 

responsibility. According to the Plea 

Agreement, Respondent ‘‘has clearly 

demonstrated a recognition and 

affirmative acceptance of personal 

responsibility for his criminal conduct.’’ 

GX 3, at 9. While Respondent ‘‘appeared 

to have no plans to stop committing his 

crime prior to being approached by law 

enforcement,’’ the AUSA acknowledged 

that ‘‘he did accept responsibility for his 

actions immediately.’’ GX 7 

(Government Sentencing Memo, at 5). 

The AUSA also stated that Respondent 

‘‘has unquestionably taken full 

responsibility for his action going so far 

as to provide significant cooperation to 

the government after his arrest.’’ Id. at 

7. Moreover, at the sentencing hearing, 

in addressing the need for specific 

deterrence, the AUSA concluded there 

was ‘‘no need’’ for it, stating that 

Respondent’s ‘‘immediate acceptance of 

responsibility demonstrate[s] not only 

an acknowledgement of his wrongdoing, 

but a sincere effort to take steps to make 

amends for the crime that [he] has 

committed.’’ Id. at 8–9. Notably, DEA 

has put forward no evidence 

challenging the sincerity of 

Respondent’s acceptance of 

responsibility. 

As for evidence in the record 

regarding whether Respondent should 

continue to be entrusted with a 

registration, the District Judge was 

troubled by Respondent’s greed and the 

fact that Respondent took affirmative 

steps to obstruct justice. I, too, am 

troubled by the same facts. I do note, 

however, that Respondent’s criminality 

did not directly involve his registration 

or controlled substances. There is 

nothing in the record addressing, let 

alone impugning, Respondent’s use of 

his registration. 

As for the Agency’s interest in 

deterrence, I adopt the District Judge’s 

conclusion that specific deterrence is 

not a concern. GX 7 (Transcript of 

Sentencing Hearing, at 8). I agree with 

the District Judge that ‘‘[g]eneral 

deterrence is the question.’’ Id. at 30. 

While not issuing some sanction due to 

Respondent’s outrageous misconduct 

sends the wrong message to the 

registrant community, not 

acknowledging the prosecutors’ 

unqualified satisfaction with 

Respondent’s significant cooperation 

likewise sends the wrong message. 

On the whole, while I find that the 

Respondent was involved in knowing 

and willful criminal conduct, I also find 

that this conduct did not involve the 

misuse of his registration to handle 

controlled substances. I further find, as 

the District Judge did, that the 

Respondent has accepted responsibility 

for his conduct. In sum, this case is 

factually unique, and, as such, I will 

impose a unique sanction. 

Based on all of the evidence in the 

record, I shall suspend Respondent’s 

registration for a minimum period of 

two years. Said suspension shall 

terminate upon Respondent’s providing 

evidence that he has satisfied the 

judgment of the District Court by paying 

the entire amount due pursuant to the 

District Court’s Judgment. 

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 FA3926055 issued to 

Mohammed Asgar, M.D., be, and it 

hereby is, suspended for a minimum 

period of two years and that said 

suspension shall terminate upon 

Respondent’s providing evidence that 

he has satisfied the judgment of the 

District Court by paying the amount he 

was ordered to pay pursuant to the 

Court’s judgment. This Order is effective 

July 25, 2018. 

Dated: June 11, 2018. 

Robert W. Patterson, 

Acting Administrator. 

[FR Doc. 2018–13531 Filed 6–22–18; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 18–15] 

Decision and Order: Kevin G. Morgan, 

RN/APN 

On December 22, 2017, the Acting 

Assistant Administrator, Diversion 

Control Division, Drug Enforcement 

Administration (DEA), issued an Order 

to Show Cause to Kevin G. Morgan, RN/ 

APN (Respondent), of Nederland, Texas. 

The Show Cause Order proposed the 

revocation of Respondent’s DEA 

Certificate of Registration No. 

MM2890312 on the ground that he does 

‘‘not have authority to handle controlled 

substances in the state of Texas, the 

state in which [Respondent is] 

registered with the DEA.’’ Order to 

Show Cause, at 1 (citing 21 U.S.C. 

823(f), 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. 

MM2890312, pursuant to which he is 

authorized to dispense controlled 

substances as a practitioner in schedules 

III through V, at the registered address 


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29574 Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Notices 

1Although the front of Respondent’s Hearing 

Request is stamped ‘‘Received’’ by the Office of 

Administrative Law Judges on January 23, 2018, the 

fax confirmation page attached to the Hearing 

Request states that it arrived in that office on 

‘‘January 22, 2018.’’ Compare Hearing Request, at 1, 

with id. at 3. In any event, neither date is within 

30 days of the December 22, 2017 date of the Show 

Cause Order. 

2 In his Briefing Order, the CALJ ordered the 

Government to file evidence to support its 

allegation that Respondent lacks state authority to 

handle controlled substances, and any motion for 

summary disposition on these grounds, on February 

2, 2018. Briefing Order at 1–2. The CALJ also 

directed Respondent to file his response to any 

summary disposition motion on February 15, 2018. 

Id. at 2. On February 2, 2018, the Government filed 

its Motion for Summary Disposition, and the 

Respondent filed his response on February 15, 

2018. See Government’s Motion for Summary 

Disposition (hereinafter, ‘‘Govt. Mot.’’); Response to 

the DEA’s Proposed Revocation and Motion to 

Temporarily Abate and Stay the Proceedings for 

Fifty Days (hereinafter, ‘‘Respondent’s Brief’’ or 

‘‘Resp. Br.’’). On February 20, 2018, the CALJ issued 

his Order granting summary disposition and 

Recommended Decision. Order Granting the 

Government’s Motion for Summary Disposition and 

Recommended Rulings, Findings of Fact, 

Conclusions of Law, and Decision (hereinafter, 

Recommended Decision or R.D.). Neither party filed 

exceptions to the CALJ’s Recommended Decision. 

Although the CALJ’s Recommended Decision did 

not establish that he had jurisdiction in this case, 

I will nonetheless consider the administrative 

record that he submitted to me in its entirety. 

of 1003 Nederland Ave., Nederland, 

Texas. Id. The Order also alleged that 

this registration does not expire until 

January 31, 2019. Id. 

Regarding the substantive ground for 

the proceeding, the Show Cause Order 

alleged that on December 1, 2017, the 

Texas State Board of Nursing (TSBN), 

‘‘suspended [Respondent’s] nursing 

license, including [Respondent’s] 

prescriptive authority’’ and that ‘‘[t]his 

suspension remains in effect.’’ Id. at 2. 

The Order alleged that the TSBN’s 

suspension was ‘‘based on allegations 

that [Respondent] acted outside [his] 

authorized scope of practice and 

misrepresented information to the 

public which was likely to deceive the 

public.’’ Id. The Order further alleged 

that Respondent is therefore ‘‘without 

authority to handle controlled 

substances in Texas, the [S]tate in 

which [he is] registered with the DEA.’’ 

Id. Based on his ‘‘lack of authority to 

[dispense] controlled substances in . . . 

Texas,’’ the Order asserted that ‘‘DEA 

must revoke’’ his registration. Id. (citing 

21 U.S.C. 802(21), 823(f)(1), 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. at 2–3 

(citing 21 CFR 1301.43). The Show 

Cause Order also notified Respondent of 

his right to submit a corrective action 

plan. Id. at 3–4 (citing 21 U.S.C. 

824(c)(2)(C)). 

On January 23, 2018, Respondent 

filed a letter with the Office of 

Administrative Law Judges (OALJ) in 

which he requested a hearing on the 

allegation of the Show Cause Order and 

stated his desire to explain ‘‘how he is 

not a threat, provided great care, and 

how the State of Texas erroneously and 

wrongly suspended his license.’’ Letter 

from Respondent’s Counsel to Hearing 

Clerk (dated January 22, 2018) 

(hereinafter, Hearing Request), at 1. The 

matter was placed on the OALJ’s docket 

and assigned to Chief Administrative 

Law Judge John J. Mulrooney, II 

(hereinafter, CALJ). On January 23, 

2018, the CALJ issued an order entitled 

‘‘Order Directing the Filing of 

Government Evidence of Lack of State 

Authority Allegation and Briefing 

Schedule’’ (hereinafter, ‘‘Briefing 

Order’’) in which the CALJ found, inter 

alia, that ‘‘the Respondent, by counsel, 

filed a letter which requested a hearing 

in the matter of [sic] order to show 

cause. Therefore, the letter is construed 

as the Respondent’s Request for 

Hearing.’’ Briefing Order, at 1. 

Pursuant to 21 CFR 1301.43(a), ‘‘any 

person entitled to a hearing . . . and 

desiring a hearing shall, within 30 days 

after the date of receipt of the order to 

show cause, . . . file with the 

Administrator a written request for a 

hearing.’’ Accord Show Cause Order, at 

2. The CALJ did not indicate in his 

Briefing Order or in his Recommended 

Decision—and the rest of the 

administrative record does not 

indicate—when Respondent received 

the Show Cause Order. Without any 

evidence in the record establishing 

when Respondent received the Show 

Cause Order, the only way in which I 

could find that Respondent’s Hearing 

Request was timely is if it had been filed 

with the Administrator within 30 days 

of the December 22, 2017 date of the 

Show Cause Order. However, the OALJ 

did not receive Respondent’s Hearing 

Request until January 23, 2018.1 Hearing 

Request, at 1. Accordingly, I find that 

Respondent’s Hearing Request was not 

timely filed pursuant to 21 CFR 

1301.43(a), and as a result, Respondent 

waived his right to a hearing. 

In the absence of a timely hearing 

request, I also find that the CALJ 

consequently lacked jurisdiction to hear 

the case. Accord David A. Ruben, M.D., 

83 FR 12027, 12028 (2018) (same) 

(citing Brown’s Discount Apothecary 

BC, Inc., and Bolling Apothecary, Inc., 

80 FR 57393, 57394 (2015) (‘‘in the 

absence of a hearing request, the ALJ 

had no authority to rule on the issue of 

whether its registration should be 

revoked’’)). I therefore cancel the 

hearing nunc pro tunc held by the CALJ 

by summary disposition. See 21 CFR 

1301.43(e); accord Ruben, 83 FR at 

12028. Accordingly, I will treat this case 

as a Request for Final Agency Action 

and issue this Decision and Order based 

on the relevant evidence forwarded to 

my office by the CALJ on March 19, 

2018.2 See id. I make the following 

findings. 

Findings of Fact 

Respondent is a holder of DEA 

Certificate of Registration No. 

MM2890312. Government Exhibit (GX) 

1 to Govt. Mot. Pursuant to his 

registration, Respondent is authorized to 

dispense controlled substances in 

schedules III through V as an ‘‘MLPNurse Practitioner.’’ Id. Respondent’s 

registered address is 1003 Nederland 

Ave., Nederland, Texas. Id. 

Respondent’s registration does not 

expire until January 31, 2019. Id. 

On December 1, 2017, the TSBN 

issued an ‘‘Order of Temporary 

Suspension’’ stating that Respondent’s 

‘‘Permanent Advanced Practice 

Registered Nurse License Number 

AP123323 with Prescription 

Authorization Number 13799 and 

Permanent Registered Nurse License 

Number 758246 . . . to practice nursing 

in the State of Texas is/are, hereby 

SUSPENDED IMMEDIATELY.’’ GX 2, at 

17. The TSBN issued this Order after 

finding that ‘‘given the nature of the 

charges, the continued practice of 

nursing by [Respondent] constitutes a 

continuing and imminent threat to 

public welfare.’’ Id. Finally, the TSBN 

stated that ‘‘a probable cause hearing be 

conducted . . . not later than seventeen 

(17) days following the date of the entry 

of this order, and a final hearing on the 

matter be conducted . . . not later than 

the 61st day following the date of the 

entry of this order.’’ Id. There is no 

evidence in the record establishing that 

the TSBN ever lifted this suspension. 

Based on the above, I find that 

Respondent does not currently have 

authority under the laws of Texas to 

dispense controlled substances. 

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.’’ 


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Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Notices 29575 

3The CALJ received and considered the 

Government’s Motion for Summary Disposition and 

Respondent’s Brief. In his brief, Respondent ‘‘d[id] 

not contest that he is subject to a temporary 

suspension of his state prescriptive authority.’’ 

Resp. Br. at 1. However, Respondent argued that he 

will be presenting evidence at ‘‘a probable cause 

hearing to be held on March 6, 2018,’’ that his 

suspension ‘‘was granted on flawed information 

and false allegations,’’ and that he ‘‘has not had the 

chance to defend his self [sic] against these 

allegations.’’ Id. However, as already noted above, 

the TSBN suspended Respondent’s nursing license 

and his authority to issue prescriptions. GX 2, at 17. 

As of the date of this order, Respondent has not 

filed a motion for reconsideration on the ground 

that the TSBN has lifted the suspension. The CALJ 

concluded that the fact that the State has yet to 

provide a hearing to challenge Respondent’s 

suspension does not change the undisputed fact 

that Respondent’s state prescriptive authority is 

suspended. R.D. at 7–8. Accordingly, if the CALJ 

had the authority to issue his conclusion rejecting 

Respondent’s argument, I would have adopted this 

conclusion. 

4For the same reasons which led the TSBN to 

suspend Respondent’s license and prescriptive 

authority, I conclude that the public interest 

necessitates that this Order be effective 

immediately. 21 CFR 1316.67. 

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). Because Congress has 

clearly mandated that a practitioner 

possess state authority in order to be 

deemed a practitioner under the CSA, 

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 engages in professional 

practice. 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); Blanton, 43 FR at 

27616. 

Moreover, because ‘‘the controlling 

question’’ in a proceeding brought 

under 21 U.S.C. 824(a)(3) is whether the 

holder of a practitioner’s 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 TSBN summarily 

suspended Respondent’s state medical 

license. What is consequential is the 

undisputed fact that Respondent is no 

longer currently authorized to dispense 

controlled substances in Texas, the State 

in which he is registered. Accordingly, 

Respondent is not entitled to maintain 

his DEA registration, and I will therefore 

order that his registration be revoked.3

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) and 824(a), as well 

as 28 CFR 0.100(b), I order that DEA 

Certificate of Registration No. 

MM2890312, issued to Kevin G. 

Morgan, RN/APN, be, and it hereby is, 

revoked. I further order that any 

pending application of Kevin G. Morgan 

to renew or modify the above 

registration, or any pending application 

of Kevin G. Morgan for any other DEA 

registration in the State of Texas, be, 

and it hereby is, denied. This Order is 

effective immediately.4

Dated: June 14, 2018. 

Robert W. Patterson, 

Acting Administrator. 

[FR Doc. 2018–13530 Filed 6–22–18; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

[EOIR Docket No. 18–0202] 

RIN 1125–AA81 

EOIR Electronic Filing Pilot Program 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Public notice. 

SUMMARY: The Executive Office for 

Immigration Review (EOIR) is creating a 

voluntary pilot program to test an 

expansion of electronic filing for cases 

filed with the immigration courts and 

the Board of Immigration Appeals (BIA). 

This notice describes the procedures for 

participation in the pilot program. 

DATES: The pilot program will be in 

effect from July 16, 2018 until July 31, 

2019. Initially, expanded electronic 

filing will be available in six 

immigration courts, but will be 

expanded to all remaining courts and 

the BIA incrementally. Eligible 

attorneys and accredited representatives 

may choose to participate at any time 

during the pilot program and will be 

permitted to continue using electronic 

filing throughout the pendency of 

electronically filed cases. 

FOR FURTHER INFORMATION CONTACT: 

Nathan Berkeley, Acting Chief, 

Communications and Legislative Affairs 

Division, Office of Policy, Executive 

Office for Immigration Review, 5107 

Leesburg Pike, Suite 2618, Falls Church, 

VA 22041, telephone (703) 305–0289 

(not a toll-free call) or email PAO.EOIR@

usdoj.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In 1998, Congress passed the 

Government Paperwork Elimination 

Act, which required federal agencies to 

provide the public with the ability to 

conduct business electronically with the 

federal government. See Public Law 

105–277 (Oct. 21, 1998). Similarly, in 

2002, Congress passed the EGovernment Act of 2002, which 

promoted electronic government 

services and required agencies to use 

internet-based technology to increase 

the public’s access to government 

information and services. See Public 

Law 107–347 (Dec. 17, 2002). 

As a result, EOIR began pursuing a 

long-term agency plan to create an 

electronic case access and filing system 

for the immigration courts and BIA. See 

68 FR 71650 (Dec. 20, 2003) (‘‘The 

Department is . . . designing an 


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