[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Notices]
[Page 29696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12118]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-30]


James Edgar Lundeen, Sr., M.D.; Dismissal of Proceeding

    On December 19, 2011, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to James Edgar Lundeen, Sr., M.D. (Respondent), of 
Uniontown, Ohio. The Order proposed the revocation of Respondent's DEA 
Certificate of Registration as a practitioner, and the denial of any 
pending application to renew or modify the registration, on the ground 
that Respondent does not have authority under Ohio law to practice 
medicine or dispense controlled substances. Show Cause Order at 1.
    Following service of the Show Cause Order, Respondent requested a 
hearing. Thereafter, the Government moved for summary disposition; 
Respondent opposed the motion. On February 22, 2012, the ALJ granted 
the Government's motion, finding that there was no dispute as to the 
material fact that Respondent does not possess authority under Ohio law 
to dispense controlled substances and that he was therefore not 
entitled to hold his DEA registration. ALJ Dec. at 4-7. The ALJ thus 
recommended that Respondent's registration be revoked and that any 
pending application to renew or modify his registration be denied. Id. 
at 8. Neither party filed exceptions to the ALJ's decision and on March 
20, 2012, the ALJ forwarded the record to me for Final Agency Action.
    Upon review of the record, it was noted that the Government had 
alleged in the Show Cause Order that Respondent's registration was due 
to expire on March 31, 2012. Show Cause Order at 1. The record, 
however, contained no evidence as to whether Respondent had filed a 
renewal application.\1\ Because in the absence of a timely renewal 
application, Respondent's registration would expire, see 5 U.S.C. 
558(c), pursuant to 5 U.S.C. 556(e) and 21 CFR 1316.59, I have taken 
official notice of Respondent's registration record with the Agency.\2\ 
According to this record, Respondent has not filed a renewal 
application. Accordingly, I find that Respondent's registration has 
expired.
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    \1\ Nor does the record contain a copy of Respondent's 
Registration or any other evidence establishing the Agency's 
jurisdiction. Henceforth, the ALJs should ensure that such evidence 
is submitted for the record prior to acting upon any dispositive 
motion.
    \2\ In accordance with 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). To allow Respondent the 
opportunity to refute the facts of which I take official notice, 
Respondent may file a motion for reconsideration within fifteen 
calendar days of service of this order which shall commence 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); see also Thomas E. Mitchell, 76 FR 20032, 20033 
(2011). 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.\3\
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    \3\ 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(a), as well 
as 28 CFR 0.100(b), I hereby order that the Order to Show Cause issued 
to James Edgar Lundeen, Sr., M.D., be, and it hereby is, dismissed. 
This order is effective immediately.

    Dated: May 4, 2012.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-12118 Filed 5-17-12; 8:45 am]
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