E7-19044. David L. Wood, M.D.; Dismissal of Proceeding

On January 24, 2007, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to David L. Wood, M.D. (Respondent), of Castle Rock, Colorado. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, AW6977207, as a practitioner, and the denial of any pending applications for renewal or modification of his registration, on the ground that on October 19, 2006, Respondent had entered into a “Stipulation and Final Agency Order” with the Colorado Board of Medical Examiners, which “limited [his] medical license to administrative medicine only.” Show Cause Order at 1. The Show Cause Order alleged that as a consequence of the state order, Respondent is “not authorized to administer, dispense or prescribe controlled substances to any person * * * in the State of Colorado, the State in which [he is] registered with DEA.” Id. The Show Cause Order also alleged that the Colorado Board had found that Respondent prescribed Stadol, a schedule IV controlled substance, to a patient in “large continuous amounts despite the fact that [he knew] that this patient abused Stadol [obtained] from other” physicians. Id. at 2.

On February 21, 2007, Respondent, through his counsel, requested a hearing on the allegations. The matter was assigned to Administrative Law Judge (ALJ) Mary Ellen Bittner, who proceeded to conduct pre-hearing procedures.

Thereafter, on March 14, 2007, the Government moved for summary disposition on the ground that the Colorado Board's Order prohibited Respondent from engaging in the practice of clinical medicine, and therefore, Respondent was without authority to handle controlled substances in Colorado. See Gov. Mot. for Summ. Judgment at 1-2. As support for its motion, the Government attached a copy of the state order, as well as a February 28, 2007 letter from Ms. Cheryl Hara, Program Director for the Colorado Board, to this Agency. See id. at attachments. This letter stated that Respondent's “stipulation precludes him from patient contact, the administration of or interpretation of patient tests, the evaluations of data for the purpose of furthering individual patient care, the performance of any act that requires the exercise of discretion in the prospective authorization of medical care, not including prospective authorization of diagnostic procedures.” See id. at Attachment II, at 1. The letter further explained that because Respondent “is precluded from treating patients, family members or himself, there is no clinical or legal basis for [him] to prescribe, dispense or administer drugs of any kind and the Board would view any prescribing, dispensing or administering by [him] as a violation of the terms of this stipulation.” Id.

Respondent opposed the Government's motion arguing that the Colorado Board's Order “does not suspend, revoke or deny [him his] medical license.” Respondent's Resp. at 3. Respondent further maintained that his “medical license status is ‘Active-With Conditions’ and [that he] may apply to the Board for modification of his practice at any time.” Id. Respondent thus contended that the Order does not support a finding that he “has had his State license or registration suspended, revoked, or denied by competent State authority and is no longer authorized by State law to engage in the * * * dispensing of controlled substances.” Id. at 2 (quoting 21 U.S.C. 824(a)(3)).

On April 27, 2007, the ALJ granted the Government's motion. Noting that there were no material facts in dispute and that under DEA precedent the “controlling question * * * is whether the Respondent is currently authorized to handle controlled substances,” ALJ Dec. at 3, the ALJ reasoned that if Respondent were to prescribe or dispense a drug, he “would violate the terms of the [State] Order.” Id. at 4. The ALJ thus concluded that Respondent “does not have state authority to prescribe or dispense controlled substances, and he is not entitled to maintain his DEA registration.” Id. The ALJ thus recommended that Respondent's registration be revoked. Id. at 5.

On June 4, 2007, the ALJ forwarded the record to me for final agency action.^[1] At the outset, I note that neither the Show Cause Order nor the record establishes the status of Respondent's registration and whether there is a pending application for renewal. I therefore take official notice of the registration records of this Agency. According to those records, Respondent's registration expired on May 31, 2007, and Respondent did not file a renewal application. I therefore find that Respondent is not currently registered with this Agency.^[2]

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, while I have 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), here, no such order has been issued. Because there is neither an existing registration nor an application to act upon, and there is no suspension order to review, 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 28 CFR 0.100(b) and 0.104, I hereby order that the Order to Show Cause be, and it hereby is, dismissed.

Dated: September 19, 2007.

Michele M. Leonhart,

Deputy Administrator.

Footnotes

1.  On May 25, 2007, Respondent filed exceptions to the ALJ's decision. On the same day, the Government moved to strike the exceptions as out-of-time; on June 1, 2007, the ALJ granted the Government's motion but announced that she would forward Respondent's exceptions and the Government's motion to me with the record. In light of the disposition of this case, I conclude that there is no need to decide any issue related to Respondent's exceptions.

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). 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). Respondent can dispute these facts by filing a properly supported motion for reconsideration within fifteen days of service of this order, which shall begin on the date this order is mailed.