[Federal Register Volume 76, Number 18 (Thursday, January 27, 2011)]
[Notices]
[Pages 4938-4939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1691]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 10-56]


Kermit B. Gosnell, M.D.; Decision and Order

    On April 30, 2010, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Kermit B. Gosnell, M.D. (Respondent), of Philadelphia, 
Pennsylvania. The Show Cause Order proposed the revocation of 
Respondent's DEA Certificates of Registration, AG4676992 and BG9223176, 
and the denial of any pending applications to renew or modify the 
registrations, on the ground that Respondent lacked authority to handle 
controlled substances in Pennsylvania and Delaware, the States in which 
he maintained the respective registrations. Show Cause Order, at 1 
(citing 21 U.S.C. 824(a)(3)).
    Respondent, acting pro se, timely requested a hearing, and the 
matter was placed on the docket of the Agency's Administrative Law 
Judges (ALJ). Thereafter, the ALJ issued an order directing the parties 
to file prehearing statements in the matter.
    In lieu of a prehearing statement, the Government filed a Motion 
for Summary Disposition. Summ. Disp. Mot., at 1. Therein, the 
Government contended that Respondent had previously voluntarily 
surrendered his DEA registration, BG9223176, thereby negating the need 
for any further action regarding that registration; with regard to 
registration, AG4676992, the Government contended that Respondent lacks 
authority to handle controlled substances in Pennsylvania, the 
jurisdiction in which he is licensed to practice medicine and is 
registered with the DEA. Id. at 1-2.
    In support of its motion, the Government attached an Affidavit 
(dated June 16, 2010) of a DEA Diversion Investigator (DI), who stated 
that Respondent's Delaware medical license and controlled substances 
license were suspended and that Respondent had surrendered DEA 
registration, BG9223176. DI Aff., at 1-2. The DI further stated that 
Respondent holds DEA registration, AG4676992, at the location of 3801 
Lancaster Avenue, Philadelphia, Pa., that this registration will expire 
by its terms on September 30, 2010; and that Respondent's Pennsylvania 
medical license was then suspended. Id. at 2. In support of its motion, 
the Government also attached a copy of the Order of Temporary 
Suspension and Notice of Hearing issued to Respondent by the 
Commonwealth of Pennsylvania Department of State, State Board of 
Medicine, dated February 22, 2010, which ordered the temporary 
suspension of Respondent's Pennsylvania medical license effective on 
the service of the order.
    The Government thus contended that because Respondent ``currently 
lacks authority to handle controlled substances in'' Pennsylvania, he 
``is not authorized to possess a DEA registration in that state.'' 
Summ. Disp. Mot., at 1 (citing 21 U.S.C. 801(21), 823(f), 824(a)(3)). 
The Government therefore requested that the ALJ grant its motion and 
recommend to me that Respondent's registration, AG4676992, be 
revoked.\1\
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    \1\ The Government further requested that the ALJ issue an order 
staying any further filings pending resolution of its motion.
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    On July 8, 2010, the ALJ issued an order which granted Respondent 
until July 16, 2010, to file a response to the Government's motion. 
Respondent, however, failed to file a prehearing statement, a response 
to the Government's motion, or any other documents or information, 
other than his Request for Hearing. Accordingly, on July 20, 2010, the 
ALJ granted the Government's Motion, finding that there were no 
disputed facts regarding Respondent's loss of state authority to handle 
controlled substances in the State in which he held a DEA registration, 
and, further, that he had waived his right to a hearing under 21 CFR 
1301.43(d). The ALJ recommended that Respondent's DEA registration be 
revoked and that any pending applications be denied. The Respondent did 
not file exceptions to the decision. The ALJ then forwarded the record 
to my office for final agency action.
    I adopt the ALJ's finding that Respondent has waived his right to 
participate in the proceeding by failing to file a pleading in response 
to the Government's motion. ALJ at 4. However, I reject the ALJ's 
recommended decision because I conclude that this case is now moot.
    The DI's affidavit establishes that Respondent's Philadelphia 
registration was due to expire on September 30, 2010. According to the 
Agency's registration record for Respondent, of which I take official 
notice,\2\ 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 Order. I therefore find that Respondent's 
registration expired on September 30, 2010.
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    \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).
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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) and 
824(a), as well as 21 CFR 0.100(b) and 0.104, I order that the Order to 
Show Cause issued to

[[Page 4939]]

Kermit B. Gosnell, M.D., be, and it hereby is, dismissed.

    Dated: January 18, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-1691 Filed 1-26-11; 8:45 am]
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