Elmer P. Manalo, M.D.; Dismissal of Proceeding, 50353-50354 [E8-19773]
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Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Notices
Name
50353
Position title
Salad, Bruce M ...................................................
Shatz, Eileen M ..................................................
Ward, Richard .....................................................
Young, Joseph E ................................................
Morrison, Richard T ............................................
Chief, Criminal Enforcement Section, Southern Region.
Special Litigation Counsel.
Chief, Civil Trial Section Western Region.
Executive Officer.
Deputy Assistant Attorney General.
U.S. Marshals Service—USMS
Auerbach, Gerald ................................................
Dolan, Edward ....................................................
Dudley, Christopher C ........................................
Farmer, Marc A ...................................................
Finan, Robert J. II ...............................................
Jones, Sylvester E ..............................................
Pearson, Michael A ............................................
Rolstad, Scott C ..................................................
Beckwith, Brian R ...............................................
[FR Doc. E8–19600 Filed 8–25–08; 8:45 am]
BILLING CODE 4410–AR–M
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 08–1]
sroberts on PROD1PC76 with NOTICES
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
VerDate Aug<31>2005
00:53 Aug 26, 2008
Jkt 214001
General Counsel.
Assistant Director, Financial Services.
Associate Director, Administration.
Assistant Director, Operations Support.
Associate Director, Operations.
Assistant Director, Witness Security and Prisoner Operations.
Assistant Director, Business Services.
Assistant Director for Justice Prisoner and Alien Transportation System (JPATS).
Deputy Director.
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
PO 00000
Frm 00055
Fmt 4703
Sfmt 4703
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
C:\FR\FM\26AUN1.SGM
26AUN1
50354
Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Notices
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
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
sroberts on PROD1PC76 with NOTICES
Janet L. Thornton, D.O.; Dismissal of
Proceeding
On December 17, 2007, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Janet L. Thornton, D.O.
(Respondent), of Monument, Colorado.
The Show Cause Order sought the
revocation of Respondent’s DEA
Certificate of Registration, AT2730984,
as a practitioner, and the denial of any
pending applications to renew or
modify her registration, on two separate
grounds.
First, it alleged that Respondent had
entered into a series of stipulations with
the Colorado Board of Medical
Examiners under which she agreed that
she ‘‘will not practice medicine in the
State of Colorado.’’ Show Cause Order at
2. Relatedly, the Show Cause Order
alleged that Respondent’s ‘‘Colorado
medical license expired on May 31,
VerDate Aug<31>2005
00:53 Aug 26, 2008
Jkt 214001
2007, and has not been renewed,’’ and
that therefore Respondent lacks state
authority to handle controlled
substances, which is a prerequisite for
holding a DEA registration. Id.
Second, the Show Cause Order
alleged that on December 3, 2005, the
Colorado Board suspended
Respondent’s state medical license thus
resulting in her lacking authority to
handle controlled substances. Id. at 1.
The Show Cause Order alleged that
while her state license was suspended,
Respondent issued two prescriptions to
her neighbors: one in January 2006, for
Tussionex, a schedule III controlled
substance, and one in June 2006, for a
schedule III drug containing
hydrocodone. Id. at 1–2. Relatedly, the
Show Cause Order also alleged that in
2005, Respondent issued a prescription
for morphine to B.V., and that B.V. had
‘‘later informed investigators that he had
no knowledge of the * * * prescription
and was never dispensed the drug.’’ Id.
at 2.
On February 12, 2008, the Show
Cause Order was served on Respondent
by First Class Mail at her registered
location. On March 3, 2008, Respondent
filed a written statement in lieu of a
request for a hearing and expressly
waived her right to a hearing. See 21
CFR 1301.43(c). Thereafter, the
investigative file was forwarded to me
for final agency action.
Having considered the entire record
in this matter, including Respondent’s
statement, I hereby issue this Decision
and Final Order. I conclude that the
Government has not proved by
substantial evidence the allegations
regarding the prescriptions to B.V. or
that Respondent currently lacks state
authority to handle controlled
substances. While I find that
Respondent violated the Controlled
Substances Act by issuing prescriptions
for controlled substances following the
suspension of her Colorado license, I
further conclude that because the
violations were limited to two instances
and there is no evidence establishing
that Respondent had not previously
entered into a doctor-patient
relationship with the two persons who
received the prescriptions, the
Government’s proposed sanction of
revocation would be excessive. Because
the Government has not proposed an
alternative sanction, the Show Cause
Order will be dismissed.
Findings of Fact
Respondent holds DEA Certificate of
Registration, AT2730984, which
authorizes her to handle controlled
substances as a practitioner at her
registered location in Monument,
PO 00000
Frm 00056
Fmt 4703
Sfmt 4703
Colorado. Respondent’s registration was
last renewed on October 18, 2005, and
does not expire until November 30,
2008.
In May 2005, an Inquiry Panel of the
Colorado State Board of Medical
Examiners ordered that Respondent be
evaluated by the Colorado Physician
Health Program. In re Janet L. Thornton,
Stipulation and Final Agency Order
(Col. St. Bd. Med. Exam’rs 2007).
Thereafter, on December 15, 2005, the
Board suspended Respondent’s state
medical license. Respondent’s state
license remained suspended until May
17, 2007, the date when Respondent
entered into a stipulation for the interim
cessation of practice, under which she
agreed to cease the practice of medicine.
Respondent subsequently agreed to two
additional amendments of the
stipulation which extended the initial
stipulation.
On October 25, 2007, Respondent and
the Board entered into a Stipulation and
Final Agency Order, which became
effective on November 16, 2007, upon
the Board’s approval. Id. at 7. According
to the Board’s Final Order, Respondent
has ‘‘continuously’’ held her state
license since April 10, 1986. Id. at 1.
In the Order, the Board imposed
certain practice restrictions on
Respondent. The first of these was that
‘‘Respondent shall not engage in any act
constituting the practice of medicine in
the state of Colorado unless such
practice occurs within a clinical setting
approved in advance by the Panel or
unless such practice occurs in a
hospital.’’ Id. at 5. The second
restriction was that ‘‘Respondent shall
order, dispense, administer or prescribe
any controlled substance or other
prescription medications only for
persons with whom Respondent has a
bona fide physician-patient relationship
and only within the context of
Respondent’s practice in a clinical
setting approved in advance by the
Panel or a hospital.’’ Id. Based on the
above, I find that contrary to the
Government’s contention, Respondent
retains authority to handle controlled
substances in Colorado.
As relevant to the Show Cause Order’s
allegations regarding her improper
prescribing, Respondent admitted in the
stipulation that she:
issued prescriptions and ordered
medications while her license was
suspended. Respondent had consulted with
an out-of-state attorney who stated that he
consulted Colorado attorneys and advised
her that she was authorized to issue
prescriptions and order medications in the
state of Colorado while her Colorado license
was suspended under the authority of out-ofstate licenses. The Panel finds that the out-
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26AUN1
]]>Agencies
[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Notices]
[Pages 50353-50354]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-19773]
-----------------------------------------------------------------------
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
