2011-1691. 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]

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.

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

Dated: January 18, 2011.

Michele M. Leonhart,

Administrator.

Footnotes

1.  The Government further requested that the ALJ issue an order staying any further filings pending resolution of its motion.

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).