FR Doc E8-13617[Federal Register: June 17, 2008 (Volume 73, Number 117)] [Notices] [Page 34329-34330] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr17jn08-90]

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 07-52]

Benjamin Levine, M.D.; Dismissal of Proceeding

On August 7, 2007, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Benjamin Levine, M.D. (Respondent), of East Brunswick, New Jersey. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, BL3612480, as a practitioner, and the denial of any pending applications to renew or modify his registration, on three separate grounds. Show Cause Order at 1. More specifically, the Show Cause Order alleged that: (1) Respondent had materially falsified his renewal application for his current registration; (2) Respondent lacked authority to handle controlled substances under the laws of the State in which he practiced medicine and held his DEA registration; and (3) Respondent had committed acts inconsistent with the public interest. Id. at 1-3.

Respondent requested a hearing on the allegations and the case was assigned to Administrative Law Judge (ALJ) Gail A. Randall. Shortly thereafter, the Government moved for summary disposition on the ground that the New Jersey State Board of Medical Examiners had suspended Respondent's state medical license. Motion for Summary Judgment at 1-2.

Respondent requested additional time to respond to the Government's motion. In his motion, Respondent did not deny that his state license had been suspended. Instead, Respondent noted that he was appealing the State board's order. Resp. Br. in Support of Motion for Additional Time at 3-4. Respondent also cited a litany of legal proceedings that he was litigating including a criminal case, a tort action, a motion for post- conviction relief of a 1996 conviction, a suit for libel and slander, another suit "related to the Medical Board and * * * malpractice insurance lawyers," and a bankruptcy proceeding. Id. at 3-4.

The ALJ, however, denied Respondent's motion (as well as his Renewed Request for an extension of time). Applying agency precedent, she also rejected Respondent's argument that the Agency should not revoke his registration because his state license was only temporarily suspended. ALJ Dec. at 6 (citing Alton E. Ingram, Jr., 69 FR 22562, 22563 (2004)). Because "Respondent lack[ed] authority to practice medicine and handle controlled substances in New Jersey," the ALJ held that "DEA lack[ed] authority to continue * * * Respondent's DEA registration." ALJ Dec. at 7. The ALJ thus granted the Government's motion for summary disposition and recommended that I revoke Respondent's registration. The ALJ then forwarded the record to me for final agency action.

Having considered the record as a whole (including Respondent's exceptions), I conclude that this case is now moot. It is undisputed that Respondent's registration expired on March 31, 2008. See Order to Show Cause at 1; see also Respondent's Counter-Statement of Material Facts at 1. Moreover, according to the registration records of this Agency, Respondent has not filed a renewal application.\1\ I therefore find that Respondent is not currently registered with this Agency.

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\1\ 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." Sec. 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.

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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.' '' David L. Wood, 72 FR 54936, 54937 (2007) (quoting 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,

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71 FR 77791, 77797 (2006), here, no such order was 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.\2\

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\2\ The dismissal of a proceeding on mootness grounds does not, however, have collateral estoppel effect in the event that Respondent reapplies for a DEA registration in the future.

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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 issued to Benjamin L. Levine, M.D., be, and it hereby is, dismissed.

Dated: June 6, 2008.

Michele M. Leonhart, 
Deputy Administrator.

[FR Doc. E8-13617 Filed 6-16-08; 8:45 am]

BILLING CODE 4410-09-P

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