Justia Regulation Tracker

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[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]                         

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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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