2011-8544. Robert Charles Ley, D.O. ; Dismissal of Proceeding

On September 28, 2009, I, the then Deputy Administrator of the Drug Enforcement Administration, issued an Order to Show Cause and Immediate Suspension of Registration (“Order”) to Robert Charles Ley, D.O. (Respondent), of Kihei, Hawaii. Order to Show Cause at 1. The Order, which also sought the revocation of Respondent's registration and the denial of any pending applications to renew his registration, alleged, inter alia, that Respondent had issued numerous prescriptions for controlled substances to undercover police officers which lacked a legitimate medical purpose and therefore violated Federal law. Id. at 2.

On October 2, 2009, Respondent was served with the Order, and on October 7, 2009, he requested a hearing on the allegations. The matter was then assigned to an Agency Administrative Law Judge (ALJ), who proceeded to conduct pre-hearing procedures.

On November 4, 2009, the Government moved for summary disposition on the ground that the State of Hawaii had suspended Respondent's state controlled substances registration and that he was therefore no longer entitled to hold a registration under the Controlled Substances Act. See 21 U.S.C. 823(f) and 824(a)(3). Finding that there were no material facts in dispute, the ALJ granted the motion, recommended that I revoke Respondent's registration and deny any pending applications, and forwarded the record to me for final agency action. Order Granting Summary Disposition and Recommended Decision, at 6.

On January 12, 2010, the State of Hawaii re-instated Respondent's state registration. As a consequence, the Government was no longer entitled to a Final Order adopting the ALJ's Recommended Decision. Accordingly, on March 2, 2010, the Government moved to remand the case for further proceedings. Motion to Remand Case for Further Proceedings, at 1.

Respondent did not, however, file an application to renew his registration which was due to expire on March 31, 2010. Respondent's registration therefore expired on March 31, 2010.

Accordingly, on May 5, 2010, the Government moved to terminate the proceeding on the ground that this case is now moot. Motion to Terminate Administrative Proceedings, at 2. On May 26, 2010, I therefore ordered that Respondent file a response to the Government's motion; I further ordered that if Respondent contended that the matter was not moot, he should specifically address what collateral consequence attach as a result of the issuance of the immediate suspension, whether he intends to remain in professional practice, and why he failed to file a renewal application. See Order at 1-2 (May 26, 2010).

On June 25, 2010, Respondent filed his response. See Respondent's Memorandum In Response to Motion to Terminate Administrative Proceedings. Therein, Respondent “maintain[s] that the summary suspension of his DEA registration * * * was improper and unjustified, [but] due to physical conditions beyond his control, [he] is no longer in a position to pursue his administrative remedies.” Id. at 1. Respondent therefore “does not object to the termination” of the proceeding. Id.

DEA has previously held that “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 (1998). While DEA has recognized a limited exception to the mootness 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 an immediate suspension, see William R. Lockridge, 71 FR 77791, 77797 (2006), Respondent has not identified any collateral consequence caused by the order. Indeed, Respondent does not object to the termination of this proceeding. Accordingly, this proceeding is now moot and the Government's motion to terminate the proceeding will be granted.

Order

Pursuant to the authority vested in me by 21 U.S.C. 824, as well as 28 CFR 0.100(b) and 0.104, I hereby grant the Government's motion to terminate the proceeding. I further order that the Order to Show Cause and Immediate Suspension of Registration issued to Robert Charles Ley, D.O, be, and it hereby is, dismissed.

Dated: April 1, 2011.

Michele M. Leonhart,

Administrator.