FR Doc E9-8625[Federal Register: April 15, 2009 (Volume 74, Number 71)] [Notices] [Page 17516-17517] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr15ap09-113]

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 08-50]

Sylvester A. Nathan; Dismissal of Proceeding

On June 25, 2008, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Sylvester A. Nathan, M.D. (Respondent), of Woodridge, Illinois. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, AN1430343, which authorized him to dispense controlled substances as a practitioner, and the denial of any pending applications to renew or modify the registration, on the ground that the Illinois Department of Professional Regulation had suspended Respondent's "state license to handle controlled substances,'' and that Respondent is therefore without authority to dispense controlled substances in the State in which he holds his registration. Id. at 1.

Respondent timely requested a hearing on the allegations and sought a five-month long continuance of the proceeding. Thereafter, the Government moved to deny Respondent's request for a continuance and for summary disposition. The basis for the summary disposition motion was that Respondent's state medical license had been suspended. As support for the motion, the Government attached: (1) A copy of a July 25, 2007 order of the Illinois Department of Financial and Professional Regulation (IDFPR), which indefinitely suspended Respondent's Illinois Physician and Surgeon's Certificate until he provided proof that he has passed the Special Purpose Examination (SPEX); and (2) a July 8, 2008 printout of Respondent's Physician Profile from the IDFPR's Web site, which indicated that the status of Respondent's license was "suspended.''

Thereafter, the ALJ issued an Order for Respondent's Response. On August 11, 2008, Respondent submitted his response in which he acknowledged that since July 25, 2007, he "has no authority to prescribe, handle or [d]ispense any [c]ontrolled medical substances in the state'' of Illinois. With the submission, Respondent also enclosed his DEA Certificate of Registration but indicated on the document that it was being "returned under protest.''

Shortly thereafter, the ALJ granted the Government's motion for summary disposition. ALJ at 6. The ALJ noted that there was no dispute that "Respondent is not authorized to practice medicine in Illinois'' and thus could not "prescribe controlled substance in that State.'' Id. at 5. Applying the Agency's longstanding interpretation that the Controlled Substances Act precludes the continuation of a registration if the practitioner no longer holds authority to dispense controlled substances in the State in which he practices medicine, id. (collecting cases); the ALJ granted the Government's motion and recommended that Respondent's registration be revoked and that any pending application be denied.

Respondent did not file exceptions to the ALJ's decision. On September 11, 2008, the record was forwarded to me for final agency action. Having considered the entire record and having taken official notice of the registration

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records of this Agency,\1\ I find that Respondent's registration expired on October 31, 2008, and that Respondent has not submitted a renewal application, let alone a timely one (which would have kept his registration in effect pending the issuance of this decision).

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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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It is well settled that "[i]f 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); see also William W. Nucklos, 73 FR 34330 (2008). Because Respondent's registration has expired and there is no pending application to act upon, I conclude that this case is now moot.

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a), as well as 28 CFR 0.100(b) and 0.104, I hereby order that the Order to Show Cause issued to Sylvester A. Nathan, M.D., be, and it hereby is, dismissed.

Dated: April 3, 2009.

Michele M. Leonhart, 
Deputy Administrator.

[FR Doc. E9-8625 Filed 4-14-09; 8:45 am]

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