Notice2024-18094
Michael L. Brodie, M.D.; Decision and Order
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 14, 2024
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 89 Issue 157 (Wednesday, August 14, 2024)</title>
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[Federal Register Volume 89, Number 157 (Wednesday, August 14, 2024)]
[Notices]
[Pages 66142-66143]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18094]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Michael L. Brodie, M.D.; Decision and Order
On July 12, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Michael L. Brodie,
M.D. (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. FB0279150 at the registered address of
2851 Geer Road, Suite B, Turlock, CA 95382. Id. at 1. The OSC alleged
that Registrant's registration should be revoked because Registrant is
``currently without authority to prescribe, administer, dispense, or
otherwise handle controlled substances in California, 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 with DEA 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 CFR 1301.43). 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
October 18, 2023, the Agency finds that service of the OSC on
Registrant was adequate. Specifically, the submitted Declaration
from a DEA Diversion Investigator includes as an attachment a Form
DEA-12 signed by Registrant indicating that Registrant was
personally served with the OSC on July 20, 2023. RFAAX 2, at 3.
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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 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,
effective March 2, 2023, Registrant surrendered his California medical
license. RFAAX 1, at 1. According to California online records, of
which the Agency takes official notice, Registrant's California medical
license remains surrendered.\2\ California DCA License Search, <a href="https://search.dca.ca.gov">https://search.dca.ca.gov</a> (last visited date of signature of this Order).
Accordingly, the Agency finds that Registrant is not licensed to
practice medicine in California, 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 <a href="/cdn-cgi/l/email-protection#47232226692623232869263333283529223e340723222669202831"><span class="__cf_email__" data-cfemail="f1959490df9095959edf9085859e839f948882b1959490df969e87">[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 21 U.S.C. 823 ``upon a
finding
[[Page 66143]]
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. See, e.g., James L. Hooper,
D.O., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App'x 826
(4th Cir. 2012); Frederick Marsh Blanton, D.O., 43 FR 27616, 27617
(1978).\3\
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\3\ This rule derives from the text of two provisions of the
Controlled Substances Act (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, 76 FR 71371-72; Sheran Arden Yeates, D.O., 71
FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104, 51105
(1993); Bobby Watts, D.O., 53 FR 11919, 11120 (1988); Frederick
Marsh Blanton, 43 FR 27617.
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According to California statute, ``dispense'' means ``to deliver a
controlled substance to an ultimate user or research subject by or
pursuant to the lawful order of a practitioner, including the
prescribing, furnishing, packaging, labeling, or compounding necessary
to prepare the substance for that delivery.'' Cal. Health & Safety Code
section 11010 (West 2024). Further, a ``practitioner'' means a person
``licensed, registered, or otherwise permitted, to distribute,
dispense, conduct research with respect to, or administer, a controlled
substance in the course of professional practice or research in [the]
state.'' Id. section 11026(c).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in California. As
discussed above, a physician must be a licensed practitioner to
dispense a controlled substance in California. Thus, because Registrant
currently lacks authority to practice medicine in California and,
therefore, is not currently authorized to handle controlled substances
in California, 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.
FB0279150 issued to Michael Brodie, 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 Michael Brodie, M.D., to renew
or modify this registration, as well as any other pending application
of Michael Brodie, M.D., for additional registration in California.
This Order is effective September 13, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
August 8, 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. 2024-18094 Filed 8-13-24; 8:45 am]
BILLING CODE 4410-09-P
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