FR Doc E8-13618[Federal Register: June 17, 2008 (Volume 73,
Number 117)] [Notices] [Page 34330] From the Federal Register
Online via GPO Access [wais.access.gpo.gov] [DOCID:fr17jn08-91]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 07-40]
William W. Nucklos, M.D.; Dismissal of Proceeding
On June 18, 2007, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration, issued an
Order to Show Cause to William W. Nucklos, M.D. (Respondent), of
Powell, Ohio. The Show Cause Order proposed the revocation of
Respondent's registration, BN2037314, as a practitioner, and the
denial of any pending application to renew his registration, on
two grounds. First, the Show Cause Order alleged that on March
8, 2006, the State Medical Board of Ohio had suspended
Respondent's state medical license. Show Cause Order at 1
(citing 21 U.S.C. 824(a)(3)). Second, the Show Cause Order
alleged that on or about February 15, 2006, Respondent had been "convicted
of ten felony counts of drug trafficking and the illegal
processing of drug documents.'' Id.; see also 21
U.S.C. 824(a)(2) & (a)(4).
Respondent requested a hearing on the allegations; the matter
was therefore assigned to Administrative Law Judge (ALJ) Mary
Ellen Bittner. Thereafter, the Government moved for summary
disposition and to stay the proceeding on the ground that the
Ohio board had suspended Respondent's medical license, and
Respondent was thus without authority to handle controlled
substances in the State in which he maintained his DEA
registration. ALJ Dec. at 1-2. The Government supported its
motion with a copy of the Notice of Immediate Suspension which
had been issued by the Ohio Board, and which referenced
Respondent's indictment and conviction on ten felony counts of
trafficking Oxycontin, and ten felony counts of "[i]llegal [p]rocessing
of [d]rug [d]ocuments.'' Notice of Immediate Suspension and
Opportunity for Hearing (Mar. 8, 2006) (citing Ohio Rev. Code
2925.03 & 2925.23).
Respondent opposed the Government's motion. Respondent's
principal contention was that his convictions had been reversed
by the Court of Appeals of Clark County, Ohio, and that he had a
pending request with the State Medical Board to vacate the
suspension because it had been based on the criminal
convictions. Respondent's Resp. at 1. The ALJ granted the
Government's motion. According to the ALJ, there was no dispute
that Respondent's state medical license remained suspended and
that he was not "currently authorized to handle controlled
substances in Ohio.'' ALJ at 3. The ALJ further explained that
although Respondent had requested that the Ohio Board vacate his
suspension, he "ha[d] not demonstrated that the suspension will
be lifted.'' Id. Reasoning that she was "compelled to grant the
Government's motion'' because Respondent's license had been
suspended, the ALJ recommended that Respondent's registration be
revoked and that any pending applications be denied. Id.
Thereafter, the record was forwarded to me for final agency
action.
In reviewing the record, I have taken official notice of the
Agency's records pertaining to Respondent's registration
status.\1\ According to the Agency's records, Respondent's
registration expired on October 31, 2007. Moreover, there is no
evidence showing that Respondent has filed a renewal
application, let alone a timely one. See 21
CFR 1301.36(i). Accordingly, I conclude that there is
neither a registration nor an application to act upon. Id.
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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.'' 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, 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 William W. Nucklos, M.D., be, and
it hereby is, dismissed.
Dated: June 6, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-13618 Filed 6-16-08; 8:45 am]
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