Notice2025-06421
Henry-Norbert O. Ndekwe, M.D.; Decision and Order
Primary source
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Published
April 16, 2025
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 90 Issue 72 (Wednesday, April 16, 2025)</title>
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[Federal Register Volume 90, Number 72 (Wednesday, April 16, 2025)]
[Notices]
[Pages 15990-15992]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-06421]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Henry-Norbert O. Ndekwe, M.D.; Decision and Order
On July 3, 2024, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Henry-Norbert O.
Ndekwe, M.D., of Lawton, Oklahoma (Registrant). Request for Final
Agency Action (RFAA), at 6, 8. The OSC proposed the revocation of
Registrant's Certificate of Registration No. BN5794587, alleging that
Registrant's registration should be revoked because Registrant is
``currently without authority to prescribe, administer, dispense, or
otherwise handle controlled substances in the State of Oklahoma, the
state in which [he is] registered with DEA.'' Id. at 2 (citing 21
U.S.C. 824(a)(3)).\1\
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\1\ According to Agency records, Registrant's registration
expired on October 31, 2024. The fact that a registrant allows his
registration to expire during the pendency of an OSC does not impact
the Agency's jurisdiction or prerogative under the Controlled
Substances Act (CSA) to adjudicate the OSC to finality. Jeffrey D.
Olsen, M.D., 84 FR 68474, 68476-79 (2019).
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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
[[Page 15991]]
default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request
a hearing. RFAA, at 2.\2\ ``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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\2\ Based on the Government's submissions in its RFAA dated
November 5, 2024, the Agency finds that service of the OSC on
Registrant was adequate. An included declaration from a DEA
Diversion Investigator (DI) indicates that on May 17, 2024,
Registrant had requested that he be contacted regarding his DEA
registration via his registered email address. RFAA, at 10, 13. On
July 17, 2024, the DI emailed a copy of the OSC to Registrant's
registered email address, and the email was not returned as
undeliverable. Id. at 11, 18. On the same date, the DI also mailed a
copy of the OSC via certified mail to Registrant's registered
address, but the mailing was returned as undeliverable. Id. at 11,
16, 20. Here, the Agency finds that Registrant was successfully
served the OSC by email and 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)); see also Mohammed S. Aljanaby, M.D., 82 FR 34552, 34552
(2017) (finding that service by email satisfies due process where
the email is not returned as undeliverable and other methods have
been unsuccessful). 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 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 Oklahoma medical license expired on June 1, 2023. RFAA, at
7. According to Oklahoma online records, of which the Agency takes
official notice,\3\ Registrant's Oklahoma medical license remains
expired. Oklahoma Board of Medical Licensure and Supervision Licensee
Search, <a href="https://www.okmedicalboard.org/search">https://www.okmedicalboard.org/search</a> (last visited date of
signature of this Order). Accordingly, the Agency finds that Registrant
is not licensed to practice medicine in Oklahoma, the state in which he
is registered with DEA.\4\
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\3\ 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).
\4\ 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.'' The material fact here is
that Registrant, as of the date of this decision, is not licensed to
practice medicine in Oklahoma. 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#c9adaca8e7a8adada6e7a8bdbda6bba7acb0ba89adaca8e7aea6bf"><span class="__cf_email__" data-cfemail="8de9e8eca3ece9e9e2a3ecf9f9e2ffe3e8f4fecde9e8eca3eae2fb">[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 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).\5\
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\5\ 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 71371-72;
Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A.
Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 53 FR
11919, 11920 (1988); Frederick Marsh Blanton, M.D., 43 FR 27617.
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Under Oklahoma law, ``dispense'' means ``to deliver a controlled
dangerous substance to an ultimate user or human research subject by or
pursuant to the lawful order of a practitioner, including the
prescribing, administering, packaging, labelling, or compounding
necessary to prepare the substance for such distribution.'' Okla. Stat.
tit. 63, section 2-101(14) (2024). Further, a ``practitioner'' includes
``a medical doctor or osteopathic physician . . . or any other person,
licensed, registered or otherwise permitted to prescribe, distribute,
dispense . . . or administer a controlled dangerous substance in the
course of professional practice or research in th[e] state.'' Id.
section 2-101(42)(a)(1), (8).
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice medicine in Oklahoma. As
discussed above, an individual must be a licensed practitioner to
dispense a controlled substance in Oklahoma. Thus, because Registrant
lacks authority to practice medicine in Oklahoma and, therefore, is not
authorized to handle controlled substances in Oklahoma, 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.
BN5794587 issued to Henry-Norbert O. Ndekwe, 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 Henry-Norbert O. Ndekwe,
M.D., to renew or modify this registration, as well as any other
pending application of Henry-Norbert O. Ndekwe, M.D., for additional
registration in Oklahoma. This Order is effective May 16, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
April 10, 2025, by Acting Administrator Derek Maltz. That document with
the original signature and date is maintained by DEA. For
administrative purposes only, and in compliance with requirements of
the
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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. 2025-06421 Filed 4-15-25; 8:45 am]
BILLING CODE 4410-09-P
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</html>Indexed from Federal Register on April 16, 2025.
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