Notice2025-19603
Mert Kivanc, D.O.; Decision and Order
Primary source
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Published
October 21, 2025
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 90 Issue 201 (Tuesday, October 21, 2025)</title>
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[Federal Register Volume 90, Number 201 (Tuesday, October 21, 2025)]
[Notices]
[Pages 48429-48431]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19603]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 23-13]
Mert Kivanc, D.O.; Decision and Order
On November 28, 2022, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Mert Kivanc, D.O.,
of Dunn Loring, Virginia (Applicant). Request for Final Agency Action
(RFAA), Exhibit (RFAAX) 2, at 1, 5. The OSC proposed the denial of
Applicant's application for DEA registration, Control No. W22078481C,
alleging that he ``materially falsified [his] application for
registration and because [his] registration would be inconsistent with
the public interest.'' \1\ Id. at 1 (citing 21 U.S.C. 823(g)(1),\2\
824(a)(1), (a)(4)).
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\1\ Because lack of state authority to handle controlled
substances provides a sufficient basis to support denial of
Applicant's application for registration under 21 U.S.C. 824(a)(3),
the Agency need not address the material falsification and public
interest allegations raised in the OSC.
\2\ Effective December 2, 2022, the Medical Marijuana and
Cannabidiol Research Expansion Act, Public Law 117-215, 136 Stat.
2257 (2022) (Marijuana Research Amendments or MRA), amended the
Controlled Substances Act (CSA) and other statutes. Relevant to this
matter, the MRA redesignated 21 U.S.C. 823(f), cited in the OSC, as
21 U.S.C. 823(g)(1).
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I. Procedural History
The OSC notified Applicant of his right to request a hearing or to
submit a written statement while waiving the right to a hearing, the
procedures for electing each option, and the consequences for failing
to elect either option. RFAAX 2, at 4-5 (citing 21 CFR 1301.43).
On December 19, 2022, Applicant timely requested a hearing and the
case was assigned to an Administrative Law Judge (ALJ) who initiated
prehearing proceedings.\3\ RFAAX 4. On February 16, 2023, the ALJ
terminated proceedings. RFAAX 8. The ALJ terminated proceedings based
in part \4\ on Applicant's noncompliance with the ALJ's orders, finding
that Applicant's failure to comply with the ALJ's ``numerous orders''
to file a compliant prehearing statement and an answer to the OSC
constituted an implied waiver of his hearing request. See id. at 1-3
(noting that Applicant filed three noncompliant prehearing statements);
see id. at 3 (``[G]iven that [Applicant] has failed to file an answer,
as required by the [Order for Prehearing Statements] . . . [Applicant]
is deemed to have waived his right to a hearing . . .''); see also
RFAAX 4, at 4 (informing Applicant in the Order for Prehearing
Statements that failure to timely file a compliant prehearing statement
``may result in . . . a waiver of hearing and an implied withdrawal of
a request for hearing'').
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\3\ Based on the Government's submissions in its RFAA dated
February 26, 2025, the Agency finds that service of the OSC on
Applicant was adequate. Specifically, the Declaration from a DEA
Group Supervisor (GS) indicates that on November 30, 2022, GS served
a copy of the OSC to Applicant's registered email address and that
on December 3, 2022, a copy of the OSC was delivered to Applicant's
registered mailing address. RFAAX 3, at 5-6. Applicant's timely
request for a hearing further demonstrates that he had been properly
served a copy of the OSC. RFAAX 4, at 1.
\4\ The ALJ also terminated proceedings based in part on
application of the default regulations. RFAAX 8, at 3 (citing
``DEA's newly amended regulations''). However, as discussed in more
detail below, see infra n.5, the default regulations were not in
effect when the OSC was issued.
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The ALJ's termination of proceedings on this basis was a reasonable
exercise of discretion. See 5 U.S.C. 556(c) (granting the ALJ power to
``regulate the course of the hearing'' and ``dispose of procedural
requests or similar matters''); see also Robert L. Carter, D.D.S., 90
FR 9631, 9632 (2025) (finding the ALJ ``acted within his authority''
and ``did not error in using his discretion to find that Respondent's
failure to file a compliant prehearing statement amounted to an implied
waiver of his hearing request''); David H. Betat, M.D., 87 FR 21175,
21176, 21180 (2022) (deferring to the ALJ's finding that the registrant
waived his right to a hearing by failing to respond to the ALJ's
orders); Care Point Pharmacy, Inc., 86 FR 40621, 40621 n.3 (2021)
(``Agency precedent is clear that the unwillingness or inability of a
party to comply with the directives of the [ALJ] may support an implied
waiver of that party's right to a hearing.'') (internal quotations
removed and collecting cases).
II. Newly Raised Allegation of Lack of State Authority
On February 26, 2025, the Government submitted a Request for
[[Page 48430]]
Final Agency Action (RFAA).\5\ In addition to the material
falsification and public interest grounds alleged in the OSC, the RFAA
newly alleged that Applicant's application should be denied because he
``is currently without authority to handle controlled substances in the
Commonwealth of Virginia.'' RFAA, at 8. The Government alleged that ``a
person may not hold a DEA registration if he is without appropriate
authority under the laws of the state in which he does business.'' Id.
at n.6 (citing 21 U.S.C. 824(a)(3)).
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\5\ The Government's initial RFAA, submitted on August 9, 2024,
requested that the Agency find Applicant in default under the
default provisions of the amended version of 21 CFR 1301.43. RFAAX
9, at 1. The request to find Applicant in default was denied in an
``Interim Order Denying Default'' (Interim Order) issued by the
Agency on January 16, 2025. RFAAX 9. The Interim Order explained
that the default provisions in the amended version of 21 CFR 1301.43
became effective on December 14, 2022, and applied only to OSCs
issued on or after the effective date. Id. at 1-2 (citing Default
Provisions for Hearing Proceedings Relating to the Revocation,
Suspension, or Denial of a Registration, 87 FR 68036, 68036, 68039
(Nov. 14, 2022)). Because the OSC in this matter was issued in
November 2022, the Government's request for default sought ``relief
based on a regulation, specifically a provision enabling factual
allegations to be deemed admitted, that does not apply to this
proceeding,'' and the request therefore had to be denied. Id. at 2.
The Interim Order provided that if the Government wished to pursue
the matter further, it would be required to ``file a new [RFAA] that
contains substantial evidence supporting the denial of ''
Applicant's application. Id. at 3-4.
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On July 11, 2025, the Agency served Applicant and the Government
with a ``Notice of Allegation and Briefing Order'' (Order) and a copy
of the February 2025 RFAA.\6\ The Order provided due process notice to
Applicant of the newly raised allegation that his lack of state
authority in Virginia served as an independent basis for denial of his
application. The Order provided Applicant with 15 calendar days from
the date of service to contest the new allegation.
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\6\ The Order and RFAA were served on Applicant by email and
U.S. certified mail. The Agency did not receive an ``undeliverable''
message in response to the email; thus, service by email is deemed
successful. See 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). In addition, tracking information from the U.S.
certified mail receipt indicates that the Order and RFAA were
successfully delivered to Applicant's mailing address on July 14,
2025.
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On July 30, 2025, the Agency received untimely correspondence from
Applicant in which Applicant appears to concede that he currently lacks
the requisite authority in Virginia. See July 30, 2025 Correspondence,
at 8 (``My Virginia State Medical and Rheumatology Board Licenses
should . . . be restored.'').
On August 5, 2025, the Government timely filed a response, noting
that Applicant's correspondence was untimely and ``failed to provide
documentary evidence of state authority to handle controlled
substances.'' See August 5, 2025 Government Response, at 1. The
Government attached a copy of a March 2023 Order of Mandatory
Suspension issued by the Virginia Department of Health Professions and
a printout from the Virginia Department of Health Professions website
showing that as of August 5, 2025, Applicant's Virginia medical license
was suspended. Id. at Exhibit 1 and 2.
On September 15 and 16, 2025, the Agency received three copies of
the same document from Applicant in which Applicant, again, appears to
concede that he currently lacks the requisite authority in Virginia.
See September 2025 Correspondence, at 1, 3 (stating the Virginia
Department of Health Professions ``took'' his license and requesting
``[r]estoration of all [his] [l]icenses'').\7\
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\7\ Applicant's July 2025 correspondence also addresses a
previous criminal investigation and indictment, and state board
action against his state license. Applicant's September 2025
correspondence primarily addresses his medical training and
employment history. These arguments are not relevant to the narrow
issue of whether Applicant currently possesses the requisite state
authority to handle controlled substances in Virginia.
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III. Findings of Fact
The Agency finds substantial record evidence that on June 27, 2022,
Applicant submitted an application, Control No. W22078481C, for DEA
registration in Virginia. RFAAX 3, Attachment F. According to Virginia
online records, of which the Agency takes official notice,\8\
Applicant's Virginia medical license has a current status of
``Suspended.'' Virginia Department of Health Professions License
Lookup, <a href="https://dhp.virginiainteractive.org/Lookup/Index">https://dhp.virginiainteractive.org/Lookup/Index</a> (last visited
date of signature of this Order). Accordingly, the Agency finds
uncontroverted record evidence that Applicant is not currently licensed
as a practitioner in Virginia, the state in which he seeks registration
with DEA.\9\
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\8\ 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).
\9\ 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 Applicant, as of the date of this Order, is not licensed as a
practitioner in Virginia. Accordingly, Applicant 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 Office of the
Administrator, Drug Enforcement Administration, at
<a href="/cdn-cgi/l/email-protection#a3c7c6c28dc2c7c7cc8dc2d7d7ccd1cdc6dad0e3c7c6c28dc4ccd5"><span class="__cf_email__" data-cfemail="127677733c7376767d3c7366667d607c776b61527677733c757d64">[email protected]</span></a>.
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IV. Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General may 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).\10\
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\10\ 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
or denial of an application 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., Robert Wayne
Locklear, M.D., 86 FR 33738, 33744-45 (2021); James L. Hooper, M.D.,
76 FR at 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 at 27617.
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[[Page 48431]]
According to Virginia statute, ``dispense'' means ``to deliver a
drug to an ultimate user or research subject by or pursuant to the
lawful order of a practitioner, including the prescribing and
administering, packaging, labeling, or compounding necessary to prepare
the substance for that delivery.'' Va. Code Sec. 54.1-3401 (2025).
Additionally, Virginia law defines ``practitioner'' as ``a physician .
. . or other person licensed, registered, or otherwise permitted to
distribute, dispense, prescribe and administer, or conduct research
with respect to a controlled substance in the course of professional
practice or research in [Virginia].'' Id. Virginia law further defines
a ``physician'' as ``a person licensed to practice medicine in
[Virginia] or in the jurisdiction where the health care is to be
rendered.'' Va. Code Sec. 54.1-2982 (2025).
Here, the undisputed evidence in the record is that Applicant's
Virginia medical license is currently in a ``Suspended'' status. As of
the date of signature of this Order, Applicant has not submitted to the
Agency evidence that he possesses the requisite authority to handle
controlled substances in the Commonwealth of Virginia. As such, the
Agency finds that Applicant is not authorized to handle controlled
substances in Virginia and thus is not eligible to obtain a DEA
registration in Virginia. Accordingly, the Agency will order that
Applicant's application for DEA registration in Virginia be denied.
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 823 and 824, I hereby deny the pending application for a DEA
Certificate of Registration, Control No. W22078481C, submitted by Mert
Kivanc, D.O., as well as any other pending application of Mert Kivanc,
D.O., for additional registration in Virginia. This Order is effective
November 20, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on
October 9, 2025, by Administrator Terrance Cole. 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. 2025-19603 Filed 10-20-25; 8:45 am]
BILLING CODE 4410-09-P
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