Federal Register / Vol. 82, No. 192 / Thursday, October 5, 2017 / Notices 46527 

3The Show Cause Order also proposed revocation 

pursuant to 21 U.S.C. 824(a)(5), which provides that 

a registration may be revoked ‘‘upon a finding that 

the registrant has been excluded or directed to be 

excluded from participation in a program pursuant 

to section 1320a–7(a) of Title 42.’’ GX 2, 1–2. While 

the Show Cause Order alleged that the HHS IG has 

issued a letter to Registrant excluding him from 

participation in federal health care programs 

pursuant to 42 U.S.C. 1320a–7(a), the Government 

has provided no evidence to support the allegation, 

and it does not raise this ground in its Request for 

Final Agency Action. I therefore dismiss the 

allegation. 

substances under the laws of the State 

in which he practices medicine. 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); see 

also Frederick Marsh Blanton, 43 FR 

27616 (1978). 

Because Registrant is no longer 

currently authorized to dispense 

controlled substances in Texas, the State 

in which he is registered with the 

Agency, I will order that his registration 

be revoked.3 21 U.S.C. 824(a)(3). 

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 AD9639038 and DataWaiver Identification No. XD9639038, 

issued to Warren B. Dailey, M.D., be, 

and they hereby are, revoked. Pursuant 

to the authority vested in me by 21 

U.S.C. 823(f), I further order that any 

pending application of Warren B. 

Dailey, M.D., to renew or modify his 

registration, be, and it hereby is, denied. 

This Order is effective November 6, 

2017. 

Dated: September 27, 2017. 

Chuck Rosenberg, 

Acting Administrator. 

[FR Doc. 2017–21382 Filed 10–4–17; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 17–24] 

William J. O’Brien, III, D.O.; Decision 

and Order 

On March 13, 2017, the Assistant 

Administrator, Diversion Control 

Division, issued an Order to Show 

Cause to William J. O’Brien, III, D.O. 

(Respondent), formerly of Levittown, 

Pennsylvania. The Show Cause Order 

proposed the revocation of 

Respondent’s DEA Certificate of 

Registration pursuant to 21 U.S.C. 

824(a)(2), on the ground that he ‘‘ha[s] 

been convicted of a felony relating to 

controlled substances.’’ Show Cause 

Order, at 1. 

As to the Agency’s jurisdiction, the 

Show Cause Order alleged that 

Respondent is registered as a 

practitioner in schedules II through V, 

under Registration No. BO3937781, at 

the address of 49 Rolling Lane, 

Levittown, Pa. Id. The Order also 

alleged that Respondent’s registration 

expires on December 31, 2017. Id. 

As to the substantive grounds for the 

proceeding, the Show Cause Order 

alleged that ‘‘[o]n June 28, 2016, 

[Respondent was] convicted by a 

Federal jury of . . . two counts of 

conspiracy to distribute controlled 

substances, in violation of 21 U.S.C. 

846; 110 counts of distribution of 

controlled substances (oxycodone, 

methadone and amphetamine, all 

[s]chedule II controlled substances), 

seven counts of distribution of 

controlled substances (alprazolam, a 

[s]chedule IV controlled substances, in 

violation of 21 U.S.C. 841(a)(1); and one 

count of distribution of controlled 

substances resulting in death, in 

violation of 21 U.S.C. 841(a)(1). Id. at 1– 

2. The Show Cause Order also alleged 

that on October 5, 2016, the judgment 

was entered against him. Id. at 2. The 

Order then asserted that a ‘‘[c]onviction 

of a felony related to controlled 

substances warrants revocation of [his] 

registration pursuant to 21 U.S.C. 

824(a)(2).’’ Id. 

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, the procedure for 

electing either option, and the 

consequence of failing to elect either 

option. Id. The Show Cause Order also 

notified Respondent of his right to 

submit a Corrective Action Plan 

pursuant to 21 U.S.C. 824(c)(2)(C). Id. at 

2–3. 

On March 21, 2017, the Government 

served the Show Cause Order on 

Respondent. Notice of Service of Order 

to Show Cause, at 1. On April 25, 2017, 

Respondent’s hearing request was 

received by the Office of Administrative 

Law Judges (OALJ) and assigned to ALJ 

Charles Wm. Dorman. Hearing Request, 

at 1. 

On May 1, 2017, the ALJ issued an 

Order for Prehearing Statements. Noting 

that Respondent’s hearing request was 

received on April 25, 2017 and that 

DEA’s regulation requires that a hearing 

request be received ‘‘within 30 days 

after the date of receipt of the’’ Show 

Cause Order to be deemed timely, the 

ALJ ordered the Government to ‘‘submit 

evidence showing when it served the’’ 

Order and to file any motion seeking to 

terminate the proceeding ‘‘based on the 

timeliness of the . . . hearing request.’’ 

Order for Prehearing Statements, at 1. 

The ALJ directed the Government to 

comply with this portion of his order by 

May 8, 2017. Id. The ALJ’s Order also 

directed both parties to file a prehearing 

statement setting forth their proposed 

witnesses, a summary of their proposed 

testimony, and the documentary 

evidence they intended to introduce. Id. 

at 1–2. 

On May 5, 2017, the Government 

submitted a pleading addressing the 

timeliness of Respondent’s hearing 

request. Therein, the Government noted 

that the envelope used by Respondent to 

mail the hearing request was stamped 

by the Agency’s mailroom as having 

been received on April 13, 2017. Notice 

of Service of Order to Show Cause, at 1. 

The Government therefore did not move 

to terminate the proceeding based on 

the timeliness of Respondent’s hearing 

request. Id. at 1–2. 

Also, on May 5, 2017, the Government 

moved for summary disposition on two 

grounds. Mot. for Summ. Disp., at 1. 

First, the Government noted that 

subsequent to the issuance of the Show 

Cause Order, the State of Pennsylvania 

suspended Respondent’s license to 

practice osteopathic medicine and 

surgery, and therefore, he has no 

authority to handle controlled 

substances in the State in which he is 

registered. Id. at 2–4. As support for this 

contention, the Government submitted a 

copy of the State Board of Osteopathic 

Medicine’s Final Order of Automatic 

Suspension (April 12, 2017). GX 2. The 

Government argued that because 

Respondent does not have state 

authority to dispense controlled 

substances in Pennsylvania, he ‘‘is not 

authorized to possess a DEA registration 

in that [S]tate,’’ and therefore, his 

registration should be revoked. Mot. 

at 3. 

The Government also sought 

summary disposition on the ground that 

it is undisputed that Respondent has 

been convicted of a controlled substance 

felony. The Government argued that 

Respondent has been convicted of two 

counts of conspiracy to distribute 

controlled substances, 110 counts of 

unlawful distribution of schedule II 

controlled substances, seven counts of 

unlawful distribution of other 

controlled substances, and one count of 

distribution of controlled substances 

resulting in death. Id. at 4 (citing 21 

U.S.C. 841(a)(1) and 846). As support for 

this contention, the Government 

submitted a copy of the Amended 

Judgment in a Criminal Case which was 

entered by the United States District 


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1The ALJ also denied Respondent’s request for a 

continuance. R.D. 8. 

Court for the Eastern District of 

Pennsylvania on October 12, 2016. GX 

3. The Government further argued that 

Respondent’s ‘‘[c]onviction of a felony 

relating to controlled substances 

subjects [his] registration to revocation 

pursuant to 21 U.S.C. 824(a)(2).’’ Mot. 

at 5. 

Following receipt of the Government’s 

motion, on May 8, 2017, the ALJ issued 

an Order for Respondent’s Reply; the 

Order directed that Respondent submit 

his reply by May 19, 2017. Order for 

Respondent’s Reply, at 1. On May 18, 

2017, Respondent filed a reply. 

In his Reply, Respondent stated that 

‘‘[t]he Commonwealth of Pennsylvania 

granted a continuance of my case until 

Sept. 18, 2017.’’ Reply to Govt.’s Mot. 

for Summ. Disp., at 1. Respondent 

further argued that ‘‘[p]ersuant [sic] to 

21 U.S.C. 824(a)(2)[,] the judgement [sic] 

of my conviction IS NOT FINAL UNTIL 

AFTER THE DIRECT APPEAL HAS 

BEEN HEARD.’’ Id. As support for his 

contention, Respondent cited Leishman 

v. Associated Wholesale Electric Co., 

318 U.S. 203 (1943), a case holding that 

a motion for a district court to amend 

or make additional findings under Rule 

52(b) of the Federal Rules of Civil 

Procedure deprives a judgment of 

finality while the motion is pending. 

Respondent thus argues that it is ‘‘the 

established rule that if a motion for a 

new trial, or in this case reversal due to 

[a] structural defect, the mere making or 

pendency of the motion destroys the 

finality of the judgment.’’ Reply to 

Govt.’s Mot. for Summ. Disp., at 2. 

Respondent also sought a continuance 

of the proceeding for 120 days. Id. 

Upon review, the ALJ granted the 

Government’s motion on both grounds. 

As for the loss of state authority ground, 

the ALJ correctly applied the Agency’s 

settled rule that ‘‘in order to maintain a 

DEA registration, a registrant must be 

currently authorized to handle 

controlled substances in the jurisdiction 

in which [he] is registered.’’ Order 

Denying Resp.’s Continuance Request 

[and] Granting Summary Disposition, at 

4. Finding that ‘‘the Board’s Order 

establishes that the Respondent does not 

currently have a medical license’’ and 

that ‘‘it is undisputed that the 

Respondent lacks state authorization to 

handle controlled substances in 

Pennsylvania, where [he] is registered,’’ 

the ALJ concluded that ‘‘[t]his issue 

alone is sufficient to warrant revocation 

of’’ his registration. Id. at 6. 

As for Respondent’s numerous 

convictions, the ALJ rejected 

Respondent’s contention that ‘‘the 

judgment of any conviction is not final 

until after the direct appeal has been 

heard,’’ finding his arguments 

‘‘unpersuasive and contrary to DEA 

precedent.’’ Id. The ALJ further 

explained that 21 U.S.C. 824(a)(2) ‘‘does 

not include any language requiring a 

Respondent to have exhausted all 

appellate review in order for the 

conviction to qualify under this 

provision.’’ Id. Finding it undisputed 

that ‘‘Respondent has been convicted of 

a felony related to controlled 

substances,’’ the ALJ also granted 

summary disposition on this ground. Id. 

at 7. & n.3 (citing Richard Jay 

Blackburn, 82 FR 18669 (2017) (holding 

that Government was entitled to 

summary disposition on allegation that 

physician materially falsified an 

application based on its offering of 

reliable and probative evidence to 

support allegation when respondent 

failed to ‘‘respond to the Government’s 

motion’’).1

Neither party filed exceptions to the 

ALJ’s Summary Disposition Order. On 

July 11, 2017, the ALJ forwarded the 

record to my Office for Final Agency 

Action. Having considered the record in 

its entirety, I adopt the ALJ’s factual 

findings and legal conclusions with 

respect to both grounds, as well as his 

recommended order. I make the 

following findings. 

Findings of Fact 

Respondent is an Osteopathic 

Physician licensed by the 

Commonwealth of Pennsylvania State 

Board of Osteopathic Medicine. GX 2, at 

1 (Final Order of Automatic 

Suspension). Respondent is also the 

holder of DEA Certificate of Registration 

No. BO3937781, pursuant to which he 

is authorized to dispense controlled 

substances in schedules II through V as 

a practitioner, at the registered address 

of 49 Rolling Lane, Levittown, Pa. GX 1 

(Registration Certificate). Respondent 

also holds DATA-Waiver Identification 

No. XO3937781, pursuant to which he 

is authorized to dispense narcotic 

controlled substances in schedules III 

through V, to up to 30 patients, for the 

purpose of providing maintenance or 

detoxification treatment. Id. 

Respondent’s registration and DATAWaiver number do not expire until 

December 31, 2017. Id. 

On October 12, 2016, the United 

States District Court issued an amended 

judgment finding Respondent guilty of 

two counts of conspiracy to distribute 

controlled substances, in violation of 21 

U.S.C. 846; 110 counts of distribution of 

controlled substances, in violation of 21 

U.S.C. 841(a)(1) and (b)(1)(C); seven 

counts of distribution of controlled 

substances, in violation of 21 U.S.C. 

841(a)(1) and (b)(1)(E); and one count of 

distribution of controlled substances 

resulting in death, in violation of 21 

U.S.C. 841(a)(1) and (b)(1)(C). GX 3, at 

1–2 (Amended Judgment In a Criminal 

Case, United States v. O’Brien, No. 

DPAE2:15CR000021–001 (E.D. Pa., Oct. 

12, 2016)). The court sentenced 

Respondent to a total term of 

imprisonment of 360 months. Id. at 3. 

Based on Respondent’s convictions, 

on March 3, 2017, the Board issued him 

a Notice and Order of Automatic 

Suspension which was to become 

effective on March 23, 2017 unless 

Respondent requested a hearing. GX 2, 

at 1 (Final Order of Automatic 

Suspension). On April 12, 2017, the 

Board issued a Final Order of Automatic 

Suspension of his osteopathic license. 

Id. 

Discussion 

Loss of State Authority Ground 

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 Title 21, ‘‘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 a practitioner, 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 registration. See, e.g., James L. Hooper, 

76 FR 71371 (2011) (collecting cases), 

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 . . . 


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2While this ground was not cited in the Show 

Cause Order, the Government provided 

constitutionally adequate notice that it was also 

seeking revocation on this basis when it served 

Respondent with its Motion for Summary 

Disposition and Respondent had a meaningful 

opportunity to put forward evidence and contest 

the issue. See Hatem Ataya, 81 FR 8221, 8244–45 

(2016). 

3As for Respondent’s reliance on Leishman v. 

Associated Wholesale Electric Co., that case 

involved a motion for amended findings under Rule 

52 of the Federal Rules of Civil Procedure and has 

no relevance to this matter. 

4To the contrary, in his various filings, 

Respondent maintains that various agents ‘‘misle[d] 

the grand jury to get the original indictment’’ and 

that ‘‘no warrants were issued for 19 videotaped 

visits.’’ Resp.’s Hrng. Req., at 1. 

5Based on Respondent’s numerous convictions, I 

conclude that the public interest necessitates that 

this Order be effective immediately. 21 CFR 

1316.67. 

controlled substances under the laws of 

the State in which he practices.’’ Id. 

§ 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., 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); see 

also Frederick Marsh Blanton, 43 FR 

27616 (1978). 

Based on the Board’s Final Order of 

Automatic Suspension, it is undisputed 

that Respondent is no longer currently 

authorized to dispense controlled 

substances in Pennsylvania, the State in 

which he is registered with the Agency. 

Respondent is therefore not entitled to 

maintain his registration. This provides 

reason alone to revoke his registration 

and to deny any pending application for 

registration in Pennsylvania.2

Respondent’s Criminal Convictions 

Pursuant to 21 U.S.C. 824(a)(2), the 

Attorney General may also suspend or 

revoke a registration issued under 

section 823 of Title 21, ‘‘upon a finding 

that the registrant . . . has been 

convicted of a felony under this 

subchapter’’ (the Controlled Substances 

Act). Here too, it is undisputed that 

Respondent has been convicted of more 

than 100 different felony violations of 

the CSA, including two of counts of 

conspiracy to distribute controlled 

substances, 21 U.S.C. 846; 117 counts of 

distribution of controlled substances, in 

violation of 21 U.S.C. 841(a)(1) and 

(b)(1)(C) and (b)(1)(E); and one count of 

distribution of controlled substances 

resulting in death, in violation of 21 

U.S.C. 841(a)(1) and (b)(1)(C). While 

Respondent asserts that his convictions 

are not final because his case is on 

direct appeal, the District Court has 

entered the judgment and Respondent, 

who is currently incarcerated in a 

United States Penitentiary, points to no 

order by the Court vacating the 

judgment.3 Accordingly, I find that 

Respondent ‘‘has been convicted of a 

felony under this subchapter,’’ thus 

subjecting his registration to sanction. 

21 U.S.C. 824(a)(2). 

In contrast to a practitioner’s loss of 

his state authority, this finding does not 

mandate the revocation of his 

registration on this ground and the 

Agency has held that a conviction is not 

a per se bar to registration (as is the loss 

of state authority). See Jeffery M. 

Freesemann, 76 FR 60873 n.1 (2011) 

(citing The Lawsons, 72 FR 74334, 

74338 (2007)); Michael S. Moore, 76 FR 

45867 (2011). Here, however, 

Respondent’s criminal conduct, which 

involves 120 felony convictions for 

unlawful distribution, including for 

unlawful distribution resulting in death, 

is so obviously egregious that revocation 

is warranted. See Masters 

Pharmaceutical, Inc., v. DEA, 861 F.3d 

206, 226 (D.C. Cir. 2017) (recognizing 

Agency’s authority to revoke a 

registration based on extensive and 

egregious misconduct even if registrant 

had accepted responsibility); see also 

Hatem Attaya, 81 FR 8221, 8244 (2016) 

(‘‘[W]hile proceedings under 21 U.S.C. 

823 and 824 are remedial in nature, 

there are cases in which, 

notwithstanding a finding that a 

registrant has credibly accepted 

responsibility, the misconduct is so 

egregious and extensive that the 

protection of the public interest 

nonetheless warrants the revocation of a 

registration or the denial of an 

application.’’) (citation omitted). 

While ordinarily a respondent who 

has been convicted of a felony subject 

to section 824(a)(2) is entitled to present 

a case as to why his registration should 

not be revoked (or his application 

denied), I nonetheless conclude that the 

ALJ properly granted summary 

disposition in this matter because there 

is no issue of any disputed material fact. 

Here, even ignoring the manifest 

egregiousness of Respondent’s criminal 

conduct, he has put forward no 

evidence to show why he can be 

entrusted with a registration nor raised 

any contention that he acknowledges 

his misconduct and has undertaken 

remedial measures.4 See Medicine 

Shoppe-Jonesborough, 73 FR 364, 387 

(2008) (other citations omitted). Cf. 10B 

Charles Allen Wright, et al., Federal 

Practice and Procedure Civ. § 2727.2 

(4th ed. April 2017 update) (‘‘If the 

summary-judgment movant makes out a 

prima facie case that would entitle him 

to a judgment as a matter of law if 

uncontroverted at trial, summary 

judgment will be granted unless the 

opposing party offers some competent 

evidence that could be presented at trial 

showing that there is a genuine dispute 

as to a material fact.’’). And finally, as 

the evidence shows that Respondent is 

only one year into a 30-year term of 

imprisonment, he has clearly 

discontinued (even if involuntarily) his 

professional practice. Cf. 21 CFR 

1301.52 (‘‘the registration of any person 

. . . shall terminate . . . if and when 

such person . . . discontinues business 

or professional practice’’). Thus, even if 

his state license had not been 

suspended, his continued registration 

would violate DEA’s longstanding 

policy barring shelf registrations. See, 

e.g., Performance Construction, Inc., 67 

FR 9993 (2002). Accordingly, I conclude 

that the ALJ properly granted summary 

disposition on this ground. I further 

conclude that Respondent’s multiple 

felony convictions for violating the CSA 

provide an additional and independent 

basis for revoking his registration and 

denying any pending application. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 824(a) and 28 CFR 0.100(b), 

I order that DEA Certificate of 

Registration No. BO3937781 and DATAWaiver Identification No. XO3937781 

issued to William J. O’Brien, III, D.O., 

be, and they hereby are, revoked. I 

further order that any application of 

William J. O’Brien, III, D.O. to renew or 

modify this registration, or for any other 

DEA registration, be, and it hereby is, 

denied. This Order is effective 

immediately.5

Dated: September 28, 2017. 

Chuck Rosenberg, 

Acting Administrator. 

[FR Doc. 2017–21380 Filed 10–4–17; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Foreign Claims Settlement 

Commission 

[F.C.S.C. Meeting and Hearing Notice No. 

9–17] 

Sunshine Act Meeting 

The Foreign Claims Settlement 

Commission, pursuant to its regulations 


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