[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Notices]
[Pages 20032-20033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8531]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-7]
Thomas E. Mitchell, M.D.; Dismissal of Proceeding
On September 11, 2009, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration, issued an Order
to Show Cause to Thomas E. Mitchell, M.D. (Respondent), of Santa Ana,
California. The Show Cause Order proposed the revocation of
Respondent's DEA Certificate of Registration and the denial of any
pending applications to renew or modify his registration on the ground
that, because of an action brought by the Medical Board of California
(MBC), he lacks authority to dispense controlled substances in the
State in which he is registered. Show Cause Order at 1.
On October 13, 2009, Respondent's counsel filed a letter in which
he requested an extension of time (of 60 days no less) to respond to
the Show Cause Order. Letter from Robert H. McNeill, Jr., to Hearing
Clerk (Oct. 9, 2009). Therein, Respondent's counsel stated that
Respondent was currently awaiting trial on two felony counts of
violating California's tax laws. Id. Respondent's counsel further
stated that ``[t]he resolution of the criminal case will significantly
affect Dr. Mitchell's decision of whether to request a hearing on the
Order to Show Cause.'' Id.
Deeming this letter to be a request for a hearing, on October 22,
2009, the ALJ issued an order directing that the Government file its
pre-hearing statement on or before January 6, 2010, and that Respondent
file his pre-hearing statement on February 8, 2010. Order for
Prehearing Statements at 1-2. Thereafter, on November 2, 2009, the
Government moved for summary disposition on the ground that, on
December 18, 2008, the MBC had suspended Respondent's Physician's and
Surgeon's Certificate for failing to
[[Page 20033]]
comply with a condition imposed by the Board's previous order. Mot. for
Summ. Disp., at 1-2. Citing agency precedent, the Government argued
that because Respondent lacks authority to dispense controlled
substances in California, he is not authorized to hold a DEA
registration in the State and his registration should be revoked. Id.
As support for the motion, the Government attached the various MBC
orders, as well as a printout of Respondent's registration status,
which indicated that his registration was to expire on January 31,
2010. Mot. for Summ. Disp., at Exs. 1-4.
On November 16, 2009, Respondent filed an opposition to the motion.
Respondent's Opposition at 4. Therein, Respondent argued that the MBC's
order ``is not reasonable and is fraught with procedural misconduct,
misrepresentations and the subsequent illegitimate denial of due
process.'' Id.
On November 25, 2009, following a further round of briefing by both
parties on an issue of no material consequence,\1\ the ALJ issued her
Recommended Decision. Therein, she found that it was undisputed that
Respondent lacks authority to dispense controlled substances in
California and that under the Controlled Substances Act, DEA therefore
lacks authority to continue his registration. ALJ Dec. at 5. The ALJ
thus granted the Government's motion and recommended that Respondent's
registration be revoked. Id
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\1\ Specifically, that Respondent had previously held a West
Virginia medical license.
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Neither party filed exceptions to the ALJ's Decision. On January 8,
2010, the ALJ forwarded the record to my Office for final agency
action. Upon receipt of the record, it was determined that while
Respondent's registration was to expire on January 31, 2010, he had yet
to file a renewal application. A subsequent query of the Agency's
registration records confirmed that Respondent allowed his registration
to expire and did not file a renewal application.
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, in the absence of an application
(whether timely filed or not), there is nothing to act upon.
Accordingly, because Respondent has allowed his registration to expire
and has not filed any application, this case is now moot and will be
dismissed.\2\
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\2\ While the Show Cause Order will be dismissed, under 21
U.S.C. 823(f), Respondent is not entitled to be registered until he
is again ``authorized to dispense * * * controlled substances under
the laws of the State in which he practices.''
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Order
Pursuant to the authority vested in me by 21 U.S.C. 824, as well as
21 CFR 0.100(b) and 0.104, I hereby order that the Order to Show Cause
issued to Thomas E. Mitchell, M.D., be, and it hereby is, dismissed.
This Order is effective immediately.
Dated: April 1, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-8531 Filed 4-8-11; 8:45 am]
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