[Federal Register: June 17, 2008 (Volume 73, Number 117)]
[Notices]
[Page 34330]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn08-91]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 07-40]
William W. Nucklos, M.D.; Dismissal of Proceeding
On June 18, 2007, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to William W. Nucklos, M.D. (Respondent), of Powell, Ohio.
The Show Cause Order proposed the revocation of Respondent's
registration, BN2037314, as a practitioner, and the denial of any
pending application to renew his registration, on two grounds.
First, the Show Cause Order alleged that on March 8, 2006, the
State Medical Board of Ohio had suspended Respondent's state medical
license. Show Cause Order at 1 (citing 21 U.S.C. 824(a)(3)). Second,
the Show Cause Order alleged that on or about February 15, 2006,
Respondent had been ``convicted of ten felony counts of drug
trafficking and the illegal processing of drug documents.'' Id.; see
also 21 U.S.C. 824(a)(2) & (a)(4).
Respondent requested a hearing on the allegations; the matter was
therefore assigned to Administrative Law Judge (ALJ) Mary Ellen
Bittner. Thereafter, the Government moved for summary disposition and
to stay the proceeding on the ground that the Ohio board had suspended
Respondent's medical license, and Respondent was thus without authority
to handle controlled substances in the State in which he maintained his
DEA registration. ALJ Dec. at 1-2. The Government supported its motion
with a copy of the Notice of Immediate Suspension which had been issued
by the Ohio Board, and which referenced Respondent's indictment and
conviction on ten felony counts of trafficking Oxycontin, and ten
felony counts of ``[i]llegal [p]rocessing of [d]rug [d]ocuments.''
Notice of Immediate Suspension and Opportunity for Hearing (Mar. 8,
2006) (citing Ohio Rev. Code 2925.03 & 2925.23).
Respondent opposed the Government's motion. Respondent's principal
contention was that his convictions had been reversed by the Court of
Appeals of Clark County, Ohio, and that he had a pending request with
the State Medical Board to vacate the suspension because it had been
based on the criminal convictions. Respondent's Resp. at 1.
The ALJ granted the Government's motion. According to the ALJ,
there was no dispute that Respondent's state medical license remained
suspended and that he was not ``currently authorized to handle
controlled substances in Ohio.'' ALJ at 3. The ALJ further explained
that although Respondent had requested that the Ohio Board vacate his
suspension, he ``ha[d] not demonstrated that the suspension will be
lifted.'' Id. Reasoning that she was ``compelled to grant the
Government's motion'' because Respondent's license had been suspended,
the ALJ recommended that Respondent's registration be revoked and that
any pending applications be denied. Id. Thereafter, the record was
forwarded to me for final agency action.
In reviewing the record, I have taken official notice of the
Agency's records pertaining to Respondent's registration status.\1\
According to the Agency's records, Respondent's registration expired on
October 31, 2007. Moreover, there is no evidence showing that
Respondent has filed a renewal application, let alone a timely one. See
21 CFR 1301.36(i). Accordingly, I conclude that there is neither a
registration nor an application to act upon. Id.
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\1\ 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.''' David L. Wood, 72 FR 54936,
54937 (2007) (quoting 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 was 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.\2\
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\2\ The dismissal of a proceeding on mootness grounds does not,
however, have collateral estoppel effect in the event that
Respondent reapplies for a DEA registration in the future.
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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 issued to William W. Nucklos, M.D., be, and it
hereby is, dismissed.
Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-13618 Filed 6-16-08; 8:45 am]
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