[Federal Register Volume 79, Number 216 (Friday, November 7, 2014)]
[Notices]
[Pages 66406-66407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26447]


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JUSTICE DEPARTMENT

Drug Enforcement Administration


Martin L. Korn, M.D.; Decision and Order

    On August 23, 2013, I, the Deputy Administrator of the Drug 
Enforcement Administration, issued an Order to Show Cause and Immediate 
Suspension of Registration (hereinafter, OTSC/ISO or Order) to Martin 
L. Korn, M.D. (hereinafter, Registrant). GX 1, at 1. The OTSC/ISO 
proposed the revocation of Registrant's DEA Certificate of 
Registration, pursuant to which he was authorized to dispense 
controlled substances as a practitioner, based on allegations that on 
``[o]n twelve separate occasions'' between February 20 and June 24, 
2013, Registrant prescribed controlled substances including alprazolam 
(schedule IV) and Adderall (schedule II), ``to three law enforcement 
officers working in an undercover capacity . . . without a legitimate 
medical purpose and/or outside the usual course of professional 
practice.'' Id. at 1-2 (citing 21 CFR 1306.04(a)). Based on the above, 
I further concluded that Registrant's ``continued registration while 
these proceedings [were] pending constitutes an imminent danger to the 
public health and safety'' and ordered that his registration be 
immediately suspended. Id. at 3 (citing 21 U.S.C. Sec.  824(d)). The 
OTSC/ISO also notified Registrant of his right to request a hearing on 
the allegations or to submit a written statement in lieu of a hearing, 
the procedures for electing either option, and the consequence of 
failing to elect either option. Id. at 3-4 (citing 21 CFR 1301.43).
    On September 5, 2013, a DEA Special Agent served Registrant with 
the OTSC/ISO at the Westchester County District Attorney's Office. GX 
2. According to the Government, Registrant has not requested a hearing 
on the allegations nor otherwise responded to the OTSC. Request for 
Final Agency Action, at 1. Based on the Government's representation, I 
find that more than thirty (30) days have now passed since the OTSC/ISO 
was served on Registrant and that he has neither requested a hearing 
nor submitted a written statement in lieu of a hearing. I therefore 
find that Registrant has waived his right to a hearing or to submit a 
written statement in lieu of a hearing. 21 CFR 1301.43(d). I make the 
following findings.
    Registrant previously held a DEA Certificate of Registration, 
pursuant to which he was authorized to dispense controlled substances 
as a practitioner at registered premises located in Larchmont, New 
York. On December 31, 2013, this registration expired. GX 3, at 1. 
According to the Agency's registration records, Registrant has not 
filed a renewal application.
    Pursuant to the authority granted by 21 U.S.C. Sec.  824(f), DEA 
seized approximately 300 dosage units of various controlled substances 
which apparently were in prescription vials, some of which bore the 
names of patients. GX A, at 2. The drugs included two vials containing 
144 and 19 dosage units of lorazepam .5mg bearing labels listing the 
patients as A.K. and C.A. respectively; a vial containing 16 tablets of 
phentermine 37.5mg bearing a label listing the patient as J.L.; a vial 
containing 80 tablets of oxazepam, its label having been ripped off; a 
vial containing 13 tablets of temazepam 15mg bearing a label listing 
the patient as K.M.; a vial containing 10.5 tablets of hydrocodone 10/
325 bearing a label listing the patient as A.K.; and vials containing 
11 tablets of Lyrica 50mg and 6 tablets of Lyrica 25mg, neither of 
which had a patient name. Id.
    On April 10, 2014, DEA's New York Field Division wrote to 
Registrant noting that following the expiration of his DEA 
registration, he no longer had authority to handle controlled 
substances. Id. at 1. The letter further informed him that under 
federal law, the Agency was authorized to dispose of the drugs 180 days 
after the date on which they had been seized. Id. However, the letter 
instructed Registrant that ``[i]n the event you wish to transfer title 
to the controlled substances to a registered successor in interest, you 
may notify this office within thirty (30) days from the date of this 
letter to make arrangements for such a transfer. . . . However, if you 
fail to notify the office within thirty days, DEA will dispose of . . . 
the controlled . . . substances it currently holds.'' Id. According to 
the Government, Registrant did not respond to the letter. See Gov. 
Suggestion of Mootness, at 1.

Discussion

    While the Government initially filed a Request for Final Agency 
Action, it now suggests that this case is moot because Registrant has 
allowed his registration to expire and ``there is no need to determine 
title to the controlled substances that were seized.'' Id. at 2. I 
agree.
    Ordinarily, where a registrant allows his registration to expire 
and also fails to file a renewal application, there is neither a 
registration to revoke nor an application to act upon, thus rendering 
the case moot. See, e.g., Ronald J. Riegel, 63 FR 67132 (1998). DEA, 
however, has 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). Such 
``collateral consequences'' may include the loss of title to any 
controlled substances that have been seized pursuant to the immediate 
suspension order, see 21 U.S.C. Sec.  824(f), harm to reputation, and 
having to report the suspension on future applications to either this 
Agency or a state board. See Lockridge, 71 FR at 77797.
    While this case commenced with the issuance of an immediate 
suspension order, I nonetheless conclude it is now

[[Page 66407]]

moot. Here, while various controlled substances were seized, the 
Government subsequently provided registrant with the opportunity to 
transfer the controlled substances to a registered successor in 
interest. See 21 U.S.C. Sec.  824(g). Thus, to the extent the 
controlled substances had any market value--which appears highly 
unlikely anyway given that they were in prescription vials and not 
sealed commercial containers--the Government disclaimed any interest in 
them. Registrant's failure to respond to the Government's offer itself 
constitutes a waiver of any claim to title to the drugs. Thus, there is 
no need to issue a decision on the merits to adjudicate the issue of 
title to the drugs.
    To the extent the issuance of the Immediate Suspension has harmed 
Registrant's reputation and may result in his having to report this 
action on future applications for a DEA registration or a state 
license, Registrant was provided with the opportunity to request a 
hearing and challenge the basis of the Government's action. Registrant 
did not, however, seek to do so. See Richard C. Quigley, 79 FR 50945, 
50947 (2014) (rejecting Government's contention that ISO case was not 
moot because of potential harm to physician's reputation when physician 
did not request a hearing).
    It is acknowledged that several federal appeals courts have held 
that ``the mere possibility of adverse collateral consequences is 
sufficient to preclude a finding of mootness.'' In re Surrick, 338 F.3d 
224, 230 (3d Cir. 2003) (quoting Dailey v. Vought Aircraft Co., 141 
F.3d 224, 228 (5th Cir. 1998)). But in those cases, which involved 
sanctions imposed by courts on attorneys, the person who was sanctioned 
at least cared enough to litigate. Not so here. So too, this case 
stands in contrast to those cases where the Agency has ruled on the 
validity of a suspension order notwithstanding that a registrant 
allowed his/her registration to expire and failed to file a renewal 
application. See Lockridge, 71 FR at 77797 (holding case not moot where 
registrant subject to ISO did not allow registration to expire until 
after receiving adverse recommended decision from ALJ); see also Nirmal 
Saran & Nisha Saran, 73 FR 7827, 7835 n.29 (2008) (holding case not 
moot where during proceeding, registrants' registrations expired but 
registrants asserted that they intended to remain in professional 
practice and had attempted to renew their registrations online but been 
prevented from doing so). Accordingly, I conclude that this case is 
moot. See Tin T. Win, 78 FR 52802 (2013) (holding ISO proceeding moot 
where physician, who allowed her registration to expire, failed to 
request a hearing and no controlled substances had been seized); Robert 
Charles Ley, 76 FR 20033 (2011) (holding ISO proceeding moot where 
physician eventually waived his right to a hearing and no controlled 
substances had been seized).

Order

    Pursuant to the authority vested in me by 21 U.S.C. Sec.  824(a), 
as well as 28 CFR 0.100(b) and 0.104, I order that the Order to Show 
Cause and Immediate Suspension of Registration issued to Martin L. 
Korn, M.D., be, and it hereby is, dismissed. This Order is effective 
immediately.

    Dated: October 23, 2014.
Thomas M. Harrigan,
Deputy Administrator.
[FR Doc. 2014-26447 Filed 11-6-14; 8:45 am]
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