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Robert A. Burkich, M.D.; Revocation of Registration
FR Doc 05-9836 [Federal Register: May 18, 2005 (Volume 70, Number 95)]
[Notices] [Page 28574-28575] From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my05-106]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Robert A. Burkich, M.D.; Revocation of Registration
On August 23, 2004, the Deputy Assistant Administrator, Office of Diversion
Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to
Robert A. Burkich, M.D. (Dr. Burkich) of Nashville, Tennessee, notifying him of
an opportunity to show cause as to why DEA should not revoke his DEA Certificate
of Registration BB4812043, as a practitioner, under 21
U.S.C. 824(a)(3) and deny any pending applications for renewal or
modification of that registration pursuant to 21
U.S.C. 823(f). As a basis for revocation, the Order to Show Cause alleged
that Dr. Burkich is not currently authorized to practice medicine or handle
controlled substances in Tennessee, his state of registration and practice.
On September 15, 2004, Dr. Burkich, acting pro se, filed a Waiver of Hearing
and Written statement (Written Statement) with the Hearing Clerk of the DEA
Office of Administrative Law Judges. The investigative file and Written
Statement were than forwarded to the Deputy Administrator for her final order.
The Deputy Administrator finds Dr. Burkich waived his right to a hearing and,
in lieu of a hearing, submitted a Written Statement regarding his
[[Page 28575]]
position on the matters of fact and law that are involved in this proceeding.
Accordingly, after considering material from the investigative file and Dr.
Burkich's Written Statement, the Deputy Administrator now enters her final order
without a hearing pursuant to 21
CFR 1301.43(c) and (e) and 1301.46.
The Deputy Administrator finds Dr. Burkich currently possesses DEA
Certificate of Registration BB4812043, which expires on July 31, 2005. The
Deputy Administrator further finds that on March 17, 2004, Tennessee Board of
Medical Examiners (Tennessee Board) issued a Final Order revoking Dr. Burkich's
license to practice medicine in Tennessee. The Tennessee Board's action was
based upon its findings of fact that Dr. Burkich had been convicted in the
United States District Court for the Eastern District of Tennessee of one felony
count of mail fraud (18 U.S.C. 1341) and that the Georgia Composite State Board
of Medical Examiners (Georgia Board) had revoked Dr. Burkich's license to
practice medicine in Georgia, as a result of that conviction.
In his Written Statement, Dr. Burkich concedes he pled guilty to the criminal
charge. However, he alleges he had a viable defense of entrapment and only pled
guilty after being misadvised by his retained defense counsel who, Dr. Burkich
asserts, was ineffective and had a conflict of interest. Attached to his Written
Statement is a Motion for a Certificate of Appealability, which Dr. Burkich
filed in the United States Court of Appeals for the Sixth Circuit (Case No.
04-6027). In that Motion, Dr. Burkich asserts in detail the factual and legal
basis for the claims in his Written Statement.
The Deputy Administrator has determined that on November 23, 2004, the court
of Appeals issued an Order denying Dr. Burkich's Motion for a Certificate of
Appealability. He subsequently filed a Petition for an En Banc Rehearing which
has not yet been acted upon by the Court. Accordingly, the federal conviction
which was the underlying basis for Dr. Burkich's license revocation remains a
valid judgment.
More significantly for purposes of this proceeding, Dr. Burkich does not
contend in either his Written Statement or the accompanying Motion, that the
Tennessee Board's Final Order has been stayed, modified or terminated or that
either of his state medical licenses have been reinstated. Further, there is no
evidence in the investigative file indicating the Tennessee Board's Final Order
is no longer in effect.
Therefore, the Deputy Administrator finds Dr. Burkich is not currently
authorized to practice medicine in the States of Tennessee and Georgia. As a
result, it is reasonable to infer he is also without authorization to handle
controlled substances in either state.
DEA does not have statutory authority under the Controlled Substances Act to
issue or maintain a registration if the applicant or registrant is without state
authority to handle controlled substances in the state in which he conducts
business. See 21 U.S.C.
802(21), 823(f) and 824(a)(3). This prerequisite has been consistently
upheld. See Stephen J. Graham, M.D., 69 FR 11661 (2004); Dominick A. Ricci,
M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).
Here, it is clear Dr. Burkich's Tennessee medical license has been revoked
and he is not currently licensed to handle controlled substances in that state,
where he is registered with DEA. Therefore, he is not entitled to a DEA
registration in Tennessee.
Accordingly, the Deputy Administrator of the Drug Enforcement Administration,
pursuant to the authority vested in her by 21
U.S.C. 823 and 824
and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of
Registration BB4812043, issued to Robert A. Burkich, M.D., be, and it hereby is,
revoked. The Deputy Administrator further orders that any pending applications
for renewal or modification of such registration be, and they hereby are,
denied. This order is effective June 17, 2005.
Dated: May 9, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-9836 Filed 5-17-05; 8:45 am]
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