|
Federal
Register Notices > Registrant
Actions - 2008 >
Elmer P. Manalo, M.D.; Dismissal of Proceeding
FR Doc E8-19773[Federal Register: August 26, 2008 (Volume 73,
Number 166)] [ Notices] [Page 50353-50354] From the Federal
Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au08-90]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 08-1]
Elmer P. Manalo, M.D.; Dismissal of Proceeding
On August 30, 2007, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and
Immediate Suspension of Registration to Elmer P. Manalo, M.D.
(Respondent), of Greensburg, Indiana. The immediate suspension
of Respondent's registration was based on my preliminary finding
that Respondent posed an "imminent danger to public health or
safety'' because he prescribed schedule II and IV controlled
substances to undercover law enforcement personnel on numerous
occasions without a legitimate medical purpose and outside the
scope of his professional practice. Show Cause Order at
1. The Show Cause Order further alleged that Respondent
continued to prescribe controlled substances to certain persons
notwithstanding that he had been specifically informed that
these persons "were illegitimate drug seekers and addicts,'' and
that several of his patients had "died due to mixed drug
intoxication or accidental drug overdose.''
Id. at 2.
Following service of the Show Cause Order, Respondent, through his
attorney, requested a hearing on the allegations and the ALJ proceeded to
conduct pre-hearing procedures. Meanwhile, on October 2, 2007, the
Medical Licensing Board of Indiana summarily suspended
Respondent's registration for ninety days effective September
27, 2007. The State Board subsequently extended the suspension
an additional ninety days.
Thereafter, the Government moved for summary disposition on the
ground that because Respondent lacked authority under state law
to handle controlled substances, he was not entitled to maintain
his DEA registration. Gov. Mot. for Summ. Disp. at 1 (citing 21
U.S.C. 801(21); 823(f);
& 824(a)(3)).
Responding to the Government's motion, Respondent did not
dispute that his state license had been suspended. Respondent's
Reply to DEA's Motion, at 1. Respondent, however, sought a stay
of the issuance of the final order in this matter pending the
resolution of the state proceedings.
Based on the undisputed fact that Respondent lacked authority to practice
medicine in Indiana, and that it was reasonable to infer that he was also
without authority to handle controlled substances under state law, the ALJ
granted the Government's motion, noting the settled rule that "DEA does not
have statutory authority under the [CSA] to maintain a registration if the
registrant is without state authority to dispense controlled substances in the
State in which he practices medicine.'' ALJ Dec. at 3 (citing 21 U.S.C. 823(f)
& 824(a)(3)). The ALJ further denied Respondent's request to stay the
proceeding. The ALJ then ordered that the hearing be cancelled,
recommended that Respondent's registration be revoked and any pending
renewal applications be denied, and forwarded the record to me for final
agency action.
In reviewing the record, I noted that neither the Show Cause Order nor any
other document establishes the status of Respondent's
registration or whether Respondent has filed a timely renewal
application. I therefore took official notice of the Agency's
record pertaining to Respondent's registration. That record
indicated that Respondent's registration expired on January 31,
2008, and that Respondent had not filed a renewal application.
See 5 U.S.C. 558(c). Accordingly, I found that Respondent is not
currently registered with the Agency.
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). In
other words, under ordinary circumstances the case is moot.
This case commenced, however, with the issuance of an Order of Immediate
Suspension, and this Order was based on allegations that Respondent committed
acts which rendered "his registration * * * inconsistent with the public
interest.'' 21 U.S.C. 824(a)(4); see also Show Cause Order at 1-2. 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 such a suspension. See
William R. Lockridge, 71 FR 77791, 77797 (2006).
I also noted that in moving for summary disposition, the Government did not
seek to litigate the allegations of the Order to Show Cause and Immediate
Suspension. Rather, it relied on the different ground that Respondent no
longer had authority under state law to handle controlled substances and thus
was not entitled to be registered. See 21 U.S.C. 824(a)(3). I further observed
that because Respondent did not file a renewal application, it is unclear
whether he intended to remain in professional practice.
Accordingly, on May 6, 2008, I ordered that the parties brief the issue of
whether this proceeding remains a live controversy. The Order further directed
that if Respondent contended
[[Page 50354]]
that the case was not moot, he should specifically address why he
failed to file a renewal application and what collateral
consequences attach as a result of the suspension order.
On June 5, the Government filed its brief. As relevant here, the Government
maintains that this proceeding is now moot and that the matter should now be
dismissed. See Brief in Response to the Order of the Deputy Administrator at
10. As of this date, Respondent has not filed a brief.
In light of Respondent's failure to comply with the briefing order, his
failure to file a renewal application, and his failure to provide any evidence
of his intent to remain in professional practice or of other collateral
consequences that attached with the issuance of the suspension order, I
conclude that this case is now moot. Accordingly, the Order to Show Cause will
be dismissed.
Order
Pursuant to the authority vested in me by 21
U.S.C. 824, as well as 21 CFR 0.100(b) and 0.104, I hereby order that the
Order to Show Cause issued to Elmer P. Manalo, M.D., be, and it hereby is,
dismissed. This Order is effective immediately.
Dated: August 18, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-19773 Filed 8-25-08; 8:45 am]
BILLING CODE 4410-09-P
NOTICE: This is an
unofficial version. An official version of these publications may be obtained
directly from the Government Printing Office (GPO).
|
