[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Notices]
[Pages 17516-17517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8625]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 08-50]


Sylvester A. Nathan; Dismissal of Proceeding

    On June 25, 2008, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Sylvester A. Nathan, M.D. (Respondent), of Woodridge, 
Illinois. The Show Cause Order proposed the revocation of Respondent's 
DEA Certificate of Registration, AN1430343, which authorized him to 
dispense controlled substances as a practitioner, and the denial of any 
pending applications to renew or modify the registration, on the ground 
that the Illinois Department of Professional Regulation had suspended 
Respondent's ``state license to handle controlled substances,'' and 
that Respondent is therefore without authority to dispense controlled 
substances in the State in which he holds his registration. Id. at 1.
    Respondent timely requested a hearing on the allegations and sought 
a five-month long continuance of the proceeding. Thereafter, the 
Government moved to deny Respondent's request for a continuance and for 
summary disposition. The basis for the summary disposition motion was 
that Respondent's state medical license had been suspended. As support 
for the motion, the Government attached: (1) A copy of a July 25, 2007 
order of the Illinois Department of Financial and Professional 
Regulation (IDFPR), which indefinitely suspended Respondent's Illinois 
Physician and Surgeon's Certificate until he provided proof that he has 
passed the Special Purpose Examination (SPEX); and (2) a July 8, 2008 
printout of Respondent's Physician Profile from the IDFPR's Web site, 
which indicated that the status of Respondent's license was 
``suspended.''
    Thereafter, the ALJ issued an Order for Respondent's Response. On 
August 11, 2008, Respondent submitted his response in which he 
acknowledged that since July 25, 2007, he ``has no authority to 
prescribe, handle or [d]ispense any [c]ontrolled medical substances in 
the state'' of Illinois. With the submission, Respondent also enclosed 
his DEA Certificate of Registration but indicated on the document that 
it was being ``returned under protest.''
    Shortly thereafter, the ALJ granted the Government's motion for 
summary disposition. ALJ at 6. The ALJ noted that there was no dispute 
that ``Respondent is not authorized to practice medicine in Illinois'' 
and thus could not ``prescribe controlled substance in that State.'' 
Id. at 5. Applying the Agency's longstanding interpretation that the 
Controlled Substances Act precludes the continuation of a registration 
if the practitioner no longer holds authority to dispense controlled 
substances in the State in which he practices medicine, id. (collecting 
cases); the ALJ granted the Government's motion and recommended that 
Respondent's registration be revoked and that any pending application 
be denied.
    Respondent did not file exceptions to the ALJ's decision. On 
September 11, 2008, the record was forwarded to me for final agency 
action. Having considered the entire record and having taken official 
notice of the registration

[[Page 17517]]

records of this Agency,\1\ I find that Respondent's registration 
expired on October 31, 2008, and that Respondent has not submitted a 
renewal application, let alone a timely one (which would have kept his 
registration in effect pending the issuance of this decision).
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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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    It is well settled that ``[i]f 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); see also William W. Nucklos, 73 FR 
34330 (2008). Because Respondent's registration has expired and there 
is no pending application to act upon, I conclude that this case is now 
moot.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a), as well as 28 CFR 0.100(b) and 0.104, I hereby order that the 
Order to Show Cause issued to Sylvester A. Nathan, M.D., be, and it 
hereby is, dismissed.

    Dated: April 3, 2009.
Michele M. Leonhart,
Deputy Administrator.
 [FR Doc. E9-8625 Filed 4-14-09; 8:45 am]
BILLING CODE 4410-09-P