2011-8531. Thomas E. Mitchell, M.D.; Dismissal of Proceeding

On September 11, 2009, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Thomas E. Mitchell, M.D. (Respondent), of Santa Ana, California. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration and the denial of any pending applications to renew or modify his registration on the ground that, because of an action brought by the Medical Board of California (MBC), he lacks authority to dispense controlled substances in the State in which he is registered. Show Cause Order at 1.

On October 13, 2009, Respondent's counsel filed a letter in which he requested an extension of time (of 60 days no less) to respond to the Show Cause Order. Letter from Robert H. McNeill, Jr., to Hearing Clerk (Oct. 9, 2009). Therein, Respondent's counsel stated that Respondent was currently awaiting trial on two felony counts of violating California's tax laws. Id. Respondent's counsel further stated that “[t]he resolution of the criminal case will significantly affect Dr. Mitchell's decision of whether to request a hearing on the Order to Show Cause.” Id.

Deeming this letter to be a request for a hearing, on October 22, 2009, the ALJ issued an order directing that the Government file its pre-hearing statement on or before January 6, 2010, and that Respondent file his pre-hearing statement on February 8, 2010. Order for Prehearing Statements at 1-2. Thereafter, on November 2, 2009, the Government moved for summary disposition on the ground that, on December 18, 2008, the MBC had suspended Respondent's Physician's and Surgeon's Certificate for failing to comply with a condition imposed by the Board's previous order. Mot. for Summ. Disp., at 1-2. Citing agency precedent, the Government argued that because Respondent lacks authority to dispense controlled substances in California, he is not authorized to hold a DEA registration in the State and his registration should be revoked. Id. As support for the motion, the Government attached the various MBC orders, as well as a printout of Respondent's registration status, which indicated that his registration was to expire on January 31, 2010. Mot. for Summ. Disp., at Exs. 1-4.

On November 16, 2009, Respondent filed an opposition to the motion. Respondent's Opposition at 4. Therein, Respondent argued that the MBC's order “is not reasonable and is fraught with procedural misconduct, misrepresentations and the subsequent illegitimate denial of due process.” Id.

On November 25, 2009, following a further round of briefing by both parties on an issue of no material consequence,^[1] the ALJ issued her Recommended Decision. Therein, she found that it was undisputed that Respondent lacks authority to dispense controlled substances in California and that under the Controlled Substances Act, DEA therefore lacks authority to continue his registration. ALJ Dec. at 5. The ALJ thus granted the Government's motion and recommended that Respondent's registration be revoked. Id

Neither party filed exceptions to the ALJ's Decision. On January 8, 2010, the ALJ forwarded the record to my Office for final agency action. Upon receipt of the record, it was determined that while Respondent's registration was to expire on January 31, 2010, he had yet to file a renewal application. A subsequent query of the Agency's registration records confirmed that Respondent allowed his registration to expire and did not file a renewal application.

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). 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.^[2]

Order

Pursuant to the authority vested in me by 21 U.S.C. 824, as well as 21 CFR 0.100(b) and 0.104, I hereby order that the Order to Show Cause issued to Thomas E. Mitchell, M.D., be, and it hereby is, dismissed. This Order is effective immediately.

Dated: April 1, 2011.

Michele M. Leonhart,

Administrator.

Footnotes

1.  Specifically, that Respondent had previously held a West Virginia medical license.

2.  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.”