[Federal Register: September 27, 2007 (Volume 72, Number 187)]
[Notices]
[Page 54936-54937]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se07-83]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 07-18]
David L. Wood, M.D.; Dismissal of Proceeding
On January 24, 2007, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to David L. Wood, M.D. (Respondent), of Castle Rock,
Colorado. The Show Cause Order proposed the revocation of Respondent's
DEA Certificate of Registration, AW6977207, as a practitioner, and the
denial of any pending applications for renewal or modification of his
registration, on the ground that on October 19, 2006, Respondent had
entered into a ``Stipulation and Final Agency Order'' with the Colorado
Board of Medical Examiners, which ``limited [his] medical license to
administrative medicine only.'' Show Cause Order at 1. The Show Cause
Order alleged that as a consequence of the state order, Respondent is
``not authorized to administer, dispense or prescribe controlled
substances to any person * * * in the State of Colorado, the State in
which [he is] registered with DEA.'' Id. The Show Cause Order also
alleged that the Colorado Board had found that Respondent prescribed
Stadol, a schedule IV controlled substance, to a patient in ``large
continuous amounts despite the fact that [he knew] that this patient
abused Stadol [obtained] from other'' physicians. Id. at 2.
On February 21, 2007, Respondent, through his counsel, requested a
hearing on the allegations. The matter was assigned to Administrative
Law Judge (ALJ) Mary Ellen Bittner, who proceeded to conduct pre-
hearing procedures.
Thereafter, on March 14, 2007, the Government moved for summary
disposition on the ground that the Colorado Board's Order prohibited
Respondent from engaging in the practice of clinical medicine, and
therefore, Respondent was without authority to handle controlled
substances in Colorado. See Gov. Mot. for Summ. Judgment at 1-2. As
support for its motion, the Government attached a copy of the state
order, as well as a February 28, 2007 letter from Ms. Cheryl Hara,
Program Director for the Colorado Board, to this Agency. See id. at
attachments. This letter stated that Respondent's ``stipulation
precludes him from patient contact, the administration of or
interpretation of patient tests, the evaluations of data for the
purpose of furthering individual patient care, the performance of any
act that requires the exercise of discretion in the prospective
authorization of medical care, not including prospective authorization
of diagnostic procedures.'' See id. at Attachment II, at 1. The letter
further explained that because Respondent ``is precluded from treating
patients, family members or himself, there is no clinical or legal
basis for [him] to prescribe, dispense or administer drugs of any kind
and the Board would view any prescribing, dispensing or administering
by [him] as a violation of the terms of this stipulation.'' Id.
Respondent opposed the Government's motion arguing that the
Colorado Board's Order ``does not suspend, revoke or deny [him his]
medical license.'' Respondent's Resp. at 3. Respondent further
maintained that his ``medical license status is `Active-With
Conditions' and [that he] may apply to the Board for modification of
his practice at any time.'' Id. Respondent thus contended that the
Order does not support a finding that he ``has had his State license or
registration suspended, revoked, or denied by competent State authority
and is no longer authorized by State law to engage in the * * *
dispensing of controlled substances.'' Id. at 2 (quoting 21 U.S.C.
824(a)(3)).
On April 27, 2007, the ALJ granted the Government's motion. Noting
that there were no material facts in dispute and that under DEA
precedent the ``controlling question * * * is whether the Respondent is
currently authorized
[[Page 54937]]
to handle controlled substances,'' ALJ Dec. at 3, the ALJ reasoned that
if Respondent were to prescribe or dispense a drug, he ``would violate
the terms of the [State] Order.'' Id. at 4. The ALJ thus concluded that
Respondent ``does not have state authority to prescribe or dispense
controlled substances, and he is not entitled to maintain his DEA
registration.'' Id. The ALJ thus recommended that Respondent's
registration be revoked. Id. at 5.
On June 4, 2007, the ALJ forwarded the record to me for final
agency action.\1\ At the outset, I note that neither the Show Cause
Order nor the record establishes the status of Respondent's
registration and whether there is a pending application for renewal. I
therefore take official notice of the registration records of this
Agency. According to those records, Respondent's registration expired
on May 31, 2007, and Respondent did not file a renewal application. I
therefore find that Respondent is not currently registered with this
Agency.\2\
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\1\ On May 25, 2007, Respondent filed exceptions to the ALJ's
decision. On the same day, the Government moved to strike the
exceptions as out-of-time; on June 1, 2007, the ALJ granted the
Government's motion but announced that she would forward
Respondent's exceptions and the Government's motion to me with the
record. In light of the disposition of this case, I conclude that
there is no need to decide any issue related to Respondent's
exceptions.
\2\ Under the Administrative Procedure Act (APA), an agency
``may take official notice of facts at any stage in a proceeding-
even in the final decision.'' U.S. Dept. of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and
DEA's regulations, Respondent is ``entitled on timely request, to an
opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). Respondent can dispute these facts by filing a
properly supported motion for reconsideration within fifteen days of
service of this order, which shall begin on the date this order is
mailed.
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Under DEA precedent, ``if a registrant has not submitted a timely
renewal application prior to the expiration date, then the registration
expires and there is nothing to revoke.'' Ronald J. Riegel, 63 FR
67132, 67133 (1998). Moreover, while I have recognized a limited
exception to this rule in cases which commence with the issuance of an
immediate suspension order because of the collateral consequences which
may attach with the issuance of such a suspension, see William R.
Lockridge, 71 FR 77791, 77797 (2006), here, no such order has been
issued. Because there is neither an existing registration nor an
application to act upon, and there is no suspension order to review,
this case is now moot.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b) and 0.104, I hereby order that the
Order to Show Cause be, and it hereby is, dismissed.
Dated: September 19, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-19044 Filed 9-26-07; 8:45 am]
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