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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106584-106585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31325]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Matthew Okeke, M.D.; Decision and Order

    On February 14, 2024, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Matthew Okeke, M.D., 
of Las Vegas, Nevada (Registrant). Request for Final Agency Action 
(RFAA), Exhibit (RFAAX) 1, at 1, 3. The OSC proposed the revocation of 
Registrant's Certificate of Registration No. FO4173845, alleging that 
Registrant's registration should be revoked because Registrant is 
``currently without authority to handle controlled substances in 
Nevada, the state in which [he is] registered with DEA.'' Id. at 2 
(citing 21 U.S.C. 824(a)(3)).
    The OSC notified Registrant of his right to file a written request 
for hearing, and that if he failed to file such a request, he would be 
deemed to have waived his right to a hearing and be in default. Id. 
(citing 21 CFR1301.43). Here, Registrant did not request a hearing. 
RFAA, at 2.\1\ ``A default, unless excused, shall be deemed to 
constitute a waiver of the registrant's/applicant's right to a hearing 
and an admission of the factual allegations of the [OSC].'' 21 CFR 
1301.43(e).
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    \1\ Based on the Government's submissions in its RFAA dated 
April 16, 2024, the Agency finds that service of the OSC on 
Registrant was adequate. The included declaration from a DEA 
Diversion Investigator (DI) indicates that on February 26, 2024, the 
DI left a copy of the OSC at Registrant's registered address. RFAAX 
2, at 2. On the same date, the DI emailed a copy of the OSC to 
Registrant's registered email address and to Registrant's attorney. 
Id. at 2; see also id., Attachment C. On February 27, 2024, the OSC 
was mailed to Registrant's residential address, with delivery 
confirmed on March 2, 2024. Id. at 2; see also id., Attachments D-E. 
Finally, on February 28, 2024, the DI left another copy of the OSC 
at Registrant's residential address. Id. at 2-3. The Agency finds 
that Registrant was successfully served the OSC by email on February 
26, 2024, as the emails to Registrant's registered email address and 
to Registrant's attorney were not returned as undeliverable. 
Mohammed S. Aljanaby, M.D., 82 FR 34,552, 34,552 (2017) (finding 
that service by email satisfies due process where the email is not 
returned as undeliverable and other methods have been unsuccessful). 
The Agency finds that the DI's efforts to serve Registrant by other 
means were ```reasonably calculated, under all the circumstances, to 
apprise [Registrant] of the pendency of the action.''' Jones v. 
Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v. Central 
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Therefore, due 
process notice requirements have been satisfied.
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    Further, ``[i]n the event that a registrant . . . is deemed to be 
in default . . . DEA may then file a request for final agency action 
with the Administrator, along with a record to support its request. In 
such circumstances, the Administrator may enter a default final order 
pursuant to [21 CFR] Sec.  1316.67.'' Id. Sec.  1301.43(f)(1). Here, 
the Government has requested

[[Page 106585]]

final agency action based on Registrant's default pursuant to 21 CFR 
1301.43(c), (f), 1301.46. RFAA, at 1; see also 21 CFR 1316.67.

Findings of Fact

    The Agency finds that, in light of Registrant's default, the 
factual allegations in the OSC are admitted. According to the OSC, 
Registrant's Nevada medical license is inactive. RFAAX 1, at 1. 
Further, on January 17, 2024, Registrant's Nevada controlled substance 
registration was revoked. Id. at 2. According to Nevada online records, 
of which the Agency takes official notice, Registrant's Nevada medical 
license and Nevada controlled substance registration are currently 
listed as ``Inactive-Probation'' and ``Inactive'' respectively.\2\ 
Nevada State Board of Medical Examiners Licensee Search, https://nsbme.us.thentiacloud.net/webs/nsbme/register (last visited date of 
signature of this Order); Nevada State Board of Pharmacy License 
Verification, https://online.nvbop.org/#/verifylicense (last visited 
date of signature of this Order). Accordingly, the Agency finds that 
Registrant is not licensed to practice medicine nor to handle 
controlled substances in Nevada, the state in which he is registered 
with DEA.
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    \2\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute the Agency's finding 
by filing a properly supported motion for reconsideration of 
findings of fact within fifteen calendar days of the date of this 
Order. Any such motion and response shall be filed and served by 
email to the other party and to the DEA Office of the Administrator, 
Drug Enforcement Administration at [email protected].
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Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under 21 U.S.C. 823 ``upon a 
finding that the registrant . . . has had his State license or 
registration 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 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. Gonzales v. Oregon, 546 U.S. 243, 270 
(2006) (``The Attorney General can register a physician to dispense 
controlled substances `if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.' . . . The very definition of a `practitioner' eligible to 
prescribe includes physicians `licensed, registered, or otherwise 
permitted, by the United States or the jurisdiction in which he 
practices' to dispense controlled substances. Sec.  802(21).''). The 
Agency has applied these principles consistently. See, e.g., James L. 
Hooper, M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. 
App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 
27617 (1978).\3\
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    \3\ 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(g)(1). 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 practices. See, e.g., James L. Hooper, M.D., 76 FR at 71,371-72; 
Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006); Dominick A. 
Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, M.D., 53 FR 
11,919, 11,920 (1988); Frederick Marsh Blanton, M.D., 43 FR at 
27,617.
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    According to Nevada statute, ``[e]very practitioner or other person 
who dispenses any controlled substance within th[e] State or who 
proposes to engage in the dispensing of any controlled substance within 
th[e] State shall obtain biennially a registration issued by the 
[Nevada State Board of Pharmacy] in accordance with its regulations.'' 
Nev. Rev. Stat. Sec.  453.226(1) (2023). Further, according to Nevada 
statute, ``dispense'' means ``to deliver a controlled substance to an 
ultimate user, patient or research subject by or pursuant to the lawful 
order of a practitioner, including the prescribing, administering, 
packaging, labeling or compounding necessary to prepare the substance 
for that delivery.'' Id. at Sec.  453.056(1).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to dispense controlled substances in Nevada because his 
Nevada controlled substance registration is inactive. As discussed 
above, an individual must hold a Nevada controlled substance 
registration to dispense a controlled substance in Nevada. Thus, 
because Registrant lacks authority to handle controlled substances in 
Nevada, Registrant is not eligible to maintain a DEA registration. 
Accordingly, the Agency will order that Registrant's DEA registration 
be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
FO4173845, issued to Matthew Okeke, M.D. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I 
hereby deny any pending applications of Matthew Okeke, M.D., to renew 
or modify this registration, as well as any other pending application 
of Matthew Okeke, M.D., for additional registration in Nevada. This 
Order is effective January 29, 2025.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
December 20, 2024, by Administrator Anne Milgram. That document with 
the original signature and date is maintained by DEA. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DEA Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of DEA. This administrative process in no way alters the legal effect 
of this document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2024-31325 Filed 12-27-24; 8:45 am]
BILLING CODE 4410-09-P
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