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David L. Wood, M.D.; Dismissal of Proceeding
FR Doc E7-19044 [Federal Register: September 27, 2007 (Volume 72,
Number 187)] [Notices] [Page 54936-54937] From the Federal Register
Online via GPO Access [wais.access.gpo.gov] [DOCID:fr27se07-83]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 07-18]
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
[[Page 54937]]
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\
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\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.
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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.'' 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.
[FR Doc. E7-19044 Filed 9-26-07; 8:45 am]
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