Federal Register, Volume 73 Issue 117 (Tuesday, June 17, 2008)

[Federal Register Volume 73, Number 117 (Tuesday, June 17, 2008)]
[Notices]
[Pages 34329-34330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13617]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 07-52]


Benjamin Levine, M.D.; Dismissal of Proceeding

    On August 7, 2007, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Benjamin Levine, M.D. (Respondent), of East Brunswick, 
New Jersey. The Show Cause Order proposed the revocation of 
Respondent's DEA Certificate of Registration, BL3612480, as a 
practitioner, and the denial of any pending applications to renew or 
modify his registration, on three separate grounds. Show Cause Order at 
1. More specifically, the Show Cause Order alleged that: (1) Respondent 
had materially falsified his renewal application for his current 
registration; (2) Respondent lacked authority to handle controlled 
substances under the laws of the State in which he practiced medicine 
and held his DEA registration; and (3) Respondent had committed acts 
inconsistent with the public interest. Id. at 1-3.
    Respondent requested a hearing on the allegations and the case was 
assigned to Administrative Law Judge (ALJ) Gail A. Randall. Shortly 
thereafter, the Government moved for summary disposition on the ground 
that the New Jersey State Board of Medical Examiners had suspended 
Respondent's state medical license. Motion for Summary Judgment at 1-2.
    Respondent requested additional time to respond to the Government's 
motion. In his motion, Respondent did not deny that his state license 
had been suspended. Instead, Respondent noted that he was appealing the 
State board's order. Resp. Br. in Support of Motion for Additional Time 
at 3-4. Respondent also cited a litany of legal proceedings that he was 
litigating including a criminal case, a tort action, a motion for post-
conviction relief of a 1996 conviction, a suit for libel and slander, 
another suit ``related to the Medical Board and * * * malpractice 
insurance lawyers,'' and a bankruptcy proceeding. Id. at 3-4.
    The ALJ, however, denied Respondent's motion (as well as his 
Renewed Request for an extension of time). Applying agency precedent, 
she also rejected Respondent's argument that the Agency should not 
revoke his registration because his state license was only temporarily 
suspended. ALJ Dec. at 6 (citing Alton E. Ingram, Jr., 69 FR 22562, 
22563 (2004)). Because ``Respondent lack[ed] authority to practice 
medicine and handle controlled substances in New Jersey,'' the ALJ held 
that ``DEA lack[ed] authority to continue * * * Respondent's DEA 
registration.'' ALJ Dec. at 7. The ALJ thus granted the Government's 
motion for summary disposition and recommended that I revoke 
Respondent's registration. The ALJ then forwarded the record to me for 
final agency action.
    Having considered the record as a whole (including Respondent's 
exceptions), I conclude that this case is now moot. It is undisputed 
that Respondent's registration expired on March 31, 2008. See Order to 
Show Cause at 1; see also Respondent's Counter-Statement of Material 
Facts at 1. Moreover, according to the registration records of this 
Agency, Respondent has not filed a renewal application.\1\ I therefore 
find that Respondent is not currently registered with this Agency.
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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.'' Sec.  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,

[[Page 34330]]

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 Benjamin L. Levine, M.D., be, and it 
hereby is, dismissed.

    Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
 [FR Doc. E8-13617 Filed 6-16-08; 8:45 am]
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