[Federal Register Volume 87, Number 132 (Tuesday, July 12, 2022)]
[Notices]
[Pages 41353-41354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14839]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Donald J. Murphy, M.D.; Decision and Order

    On April 15, 2022, the Drug Enforcement Administration 
(hereinafter, DEA or Government), issued an Order to Show Cause 
(hereinafter, OSC) to Donald J. Murphy, M.D. (hereinafter, Registrant). 
OSC, at 1 and 3. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. AM2605561 at the registered address of 
5920 McIntyre St., Golden, Colorado, 80403. Id. at 1. The OSC alleged 
that Registrant's registration should be revoked because Registrant is 
``without authority to handle controlled substances in the State of 
Colorado, the state in which [he is] registered with DEA.'' Id. at 2 
(citing 21 U.S.C. 824(a)(3)).
    The Agency makes the following findings of fact based on the 
uncontroverted evidence submitted by the Government in its Request for 
Final Agency Action (RFAA) submitted June 23, 2022.\1\
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    \1\ Based on the Declaration from a DEA Diversion Investigator 
that the Government submitted with its RFAA, the Agency finds that 
the Government's service of the OSC on Registrant was adequate. 
RFAA, Exhibit (hereinafter, RFAAX) B, at 1-2. Further, based on the 
Government's assertions in its RFAA, the Agency finds that more than 
thirty days have passed since Registrant was served with the OSC and 
Registrant has neither requested a hearing nor submitted a written 
statement or corrective action plan and therefore has waived any 
such rights. RFAA, at 1-2; see also 21 CFR 1301.43(d) and 21 U.S.C. 
824(c)(2)(C).
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Findings of Fact

    On September 23, 2021, the Colorado Medical Board issued an Order 
suspending Registrant's license to practice medicine in the State of 
Colorado. RFAAX C (Order of Summary Suspension), at 3. According to 
Colorado's online records, of which the Agency takes official notice, 
Registrant's license is still suspended. \2\ Colorado Professional or 
Business License Lookup, https://apps.colorado.gov/dora/licensing/Lookup/LicenseLookup.aspx (last visited date of signature of this 
Order). Accordingly, the Agency finds that Registrant is not currently 
licensed to engage in the practice of medicine in Colorado, the state 
in which he is registered with the 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 Office of the Administrator, Drug 
Enforcement Administration at <a href="/cdn-cgi/l/email-protection#88ecede9a6e9ecece7a6e9fcfce7fae6edf1fbc8ecede9a6fdfbece7e2a6efe7fe"><span class="__cf_email__" data-cfemail="1e7a7b7f307f7a7a71307f6a6a716c707b676d5e7a7b7f306b6d7a717430797168">[email protected]</span></a>.
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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 section 823 of the 
Controlled Substances Act (hereinafter, CSA) ``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, the 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, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (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(f). Because 
Congress has clearly mandated that a practitioner possess state 
authority in order to be deemed a practitioner under the CSA, the 
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, 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, 43 FR at 
27,617.

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[[Page 41354]]

    According to Colorado statute, ``[e]very person who manufactures, 
distributes, or dispenses any controlled substance within this state . 
. . shall obtain . . . a registration, issued by the respective 
licensing board . . . . For purposes of this section and this article [ 
], `registration' or `registered' means . . . the licensing of 
physicians by the Colorado medical board . . . .'' Colo. Rev. Stat. 
Sec.  18-18-302(1) (2022). Here, the undisputed evidence in the record 
is that Registrant's Colorado medical license was suspended by the 
Colorado Medical Board. As such, Registrant is not authorized to 
dispense controlled substances in Colorado and thus 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. 
AM2605561 issued to Donald J. Murphy, M.D. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby 
deny any pending applications of Donald J. Murphy, M.D. to renew or 
modify this registration, as well as any other pending application of 
Donald J. Murphy, M.D. for additional registration in Colorado. This 
Order is effective August 11, 2022.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
July 6, 2022, 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. 2022-14839 Filed 7-11-22; 8:45 am]
BILLING CODE 4410-09-P


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