[Federal Register Volume 72, Number 187 (Thursday, September 27, 2007)]
[Notices]
[Pages 54936-54937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19044]


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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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