Kermit B. Gosnell, M.D.; Decision and Order, 4938-4939 [2011-1691]
Download as PDF
4938
Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Notices
Commission has recognized such a
connection involved invalidity for
indefiniteness, 35 U.S.C. 112 ¶ 2, and
the Commission did so in that context
because indefiniteness there made it
impossible for the complainant to
demonstrate whether a patent claim was
practiced. Notice, Certain Video
Graphics Display Controllers and
Products Containing Same, Inv. No.
337–TA–412, 64 FR 40042, 40043 (July
23, 1999). There is no such difficulty
with regard to invalidity under 35
U.S.C. 102 and 103. Thus, under the
technical prong, the complainant bears
the burden of proving that its domestic
industry practices a claim of each
asserted patent. The Commission has
determined not to review the remainder
of the ID’s domestic industry analysis,
which found the existence of a domestic
industry without regard to the validity
of the asserted patent claims.
The Commission has determined not
to review the remainder of the ID.
Accordingly, the Commission has
terminated this investigation with a
finding of no violation.
The authority for the Commission’s
determination is contained in section
337 of the Tariff Act of 1930, as
amended (19 U.S.C. 1337), and in
sections 210.42–46 of the Commission’s
Rules of Practice and Procedure (19 CFR
210.42–46).
Issued: January 21, 2011.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2011–1706 Filed 1–26–11; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10–56]
mstockstill on DSKH9S0YB1PROD with NOTICES
Kermit B. Gosnell, M.D.; Decision and
Order
On April 30, 2010, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to Kermit B. Gosnell, M.D.
(Respondent), of Philadelphia,
Pennsylvania. The Show Cause Order
proposed the revocation of
Respondent’s DEA Certificates of
Registration, AG4676992 and
BG9223176, and the denial of any
pending applications to renew or
modify the registrations, on the ground
that Respondent lacked authority to
handle controlled substances in
Pennsylvania and Delaware, the States
in which he maintained the respective
VerDate Mar<15>2010
17:51 Jan 26, 2011
Jkt 223001
registrations. Show Cause Order, at 1
(citing 21 U.S.C. 824(a)(3)).
Respondent, acting pro se, timely
requested a hearing, and the matter was
placed on the docket of the Agency’s
Administrative Law Judges (ALJ).
Thereafter, the ALJ issued an order
directing the parties to file prehearing
statements in the matter.
In lieu of a prehearing statement, the
Government filed a Motion for
Summary Disposition. Summ. Disp.
Mot., at 1. Therein, the Government
contended that Respondent had
previously voluntarily surrendered his
DEA registration, BG9223176, thereby
negating the need for any further action
regarding that registration; with regard
to registration, AG4676992, the
Government contended that Respondent
lacks authority to handle controlled
substances in Pennsylvania, the
jurisdiction in which he is licensed to
practice medicine and is registered with
the DEA. Id. at 1–2.
In support of its motion, the
Government attached an Affidavit
(dated June 16, 2010) of a DEA
Diversion Investigator (DI), who stated
that Respondent’s Delaware medical
license and controlled substances
license were suspended and that
Respondent had surrendered DEA
registration, BG9223176. DI Aff., at 1–2.
The DI further stated that Respondent
holds DEA registration, AG4676992, at
the location of 3801 Lancaster Avenue,
Philadelphia, Pa., that this registration
will expire by its terms on September
30, 2010; and that Respondent’s
Pennsylvania medical license was then
suspended. Id. at 2. In support of its
motion, the Government also attached a
copy of the Order of Temporary
Suspension and Notice of Hearing
issued to Respondent by the
Commonwealth of Pennsylvania
Department of State, State Board of
Medicine, dated February 22, 2010,
which ordered the temporary
suspension of Respondent’s
Pennsylvania medical license effective
on the service of the order.
The Government thus contended that
because Respondent ‘‘currently lacks
authority to handle controlled
substances in’’ Pennsylvania, he ‘‘is not
authorized to possess a DEA registration
in that state.’’ Summ. Disp. Mot., at 1
(citing 21 U.S.C. 801(21), 823(f),
824(a)(3)). The Government therefore
requested that the ALJ grant its motion
and recommend to me that
Respondent’s registration, AG4676992,
be revoked.1
1 The Government further requested that the ALJ
issue an order staying any further filings pending
resolution of its motion.
PO 00000
Frm 00081
Fmt 4703
Sfmt 4703
On July 8, 2010, the ALJ issued an
order which granted Respondent until
July 16, 2010, to file a response to the
Government’s motion. Respondent,
however, failed to file a prehearing
statement, a response to the
Government’s motion, or any other
documents or information, other than
his Request for Hearing. Accordingly, on
July 20, 2010, the ALJ granted the
Government’s Motion, finding that there
were no disputed facts regarding
Respondent’s loss of state authority to
handle controlled substances in the
State in which he held a DEA
registration, and, further, that he had
waived his right to a hearing under 21
CFR 1301.43(d). The ALJ recommended
that Respondent’s DEA registration be
revoked and that any pending
applications be denied. The Respondent
did not file exceptions to the decision.
The ALJ then forwarded the record to
my office for final agency action.
I adopt the ALJ’s finding that
Respondent has waived his right to
participate in the proceeding by failing
to file a pleading in response to the
Government’s motion. ALJ at 4.
However, I reject the ALJ’s
recommended decision because I
conclude that this case is now moot.
The DI’s affidavit establishes that
Respondent’s Philadelphia registration
was due to expire on September 30,
2010. According to the Agency’s
registration record for Respondent, of
which I take official notice,2
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
Order. I therefore find that Respondent’s
registration expired on September 30,
2010.
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) and 824(a), as well
as 21 CFR 0.100(b) and 0.104, I order
that the Order to Show Cause issued to
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).
E:\FR\FM\27JAN1.SGM
27JAN1
Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Notices
Findings
Kermit B. Gosnell, M.D., be, and it
hereby is, dismissed.
Dated: January 18, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011–1691 Filed 1–26–11; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
mstockstill on DSKH9S0YB1PROD with NOTICES
John M. Chois; Decision and Order
On September 27, 2010, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration, issued an Order to
Show Cause to John M. Chois, D.O.
(Registrant), of Orlando, Florida. The
Show Cause Order proposed the
revocation of Registrant’s DEA
Certificate of Registration, BC6071904,
as a practitioner, and the denial of any
pending applications to renew or
modify his registration, on the ground
that he ‘‘do[es] not have authority to
handle controlled substances in the
[S]tate of Florida.’’ Show Cause Order, at
1 (citing 21 U.S.C. 824(a)(3)).
More specifically, the Show Cause
Order alleged that the Florida
Department of Health had ordered the
emergency suspension of Registrant’s
license to practice medicine. Id. The
Order thus alleged that Registrant is
‘‘currently without authority to handle
controlled substance in the State of
Florida, the [S]tate in which [Registrant
is] registered with DEA,’’ and that as a
consequence, his registration was
subject to revocation. Id. at 1–2. The
Order also notified Registrant of his
right to request a hearing on the
allegations or to submit a written
statement in lieu of a hearing, the
procedure for doing either, and the
consequence for failing to do either. Id.
at 2 (citing 21 CFR 1301.43).
On October 4, 2010, the Show Cause
Order was served on Registrant by
Certified Mail, Return Receipt
Requested, which was addressed to him
at his registered location. Since the date
of service of the Order, thirty (30) days
have now passed and neither Registrant,
nor anyone purporting to represent him,
has requested a hearing or submitted a
written statement in lieu of a hearing. I
therefore find that Registrant has waived
his right to a hearing or to submit a
written statement in lieu of hearing, and
issue this Decision and Final Order
based on relevant evidence contained in
the record submitted by the
Government. 21 CFR 1301.43(d) & (e). I
make the following findings of fact.
VerDate Mar<15>2010
17:51 Jan 26, 2011
Jkt 223001
Registrant is the holder of DEA
Certificate Registration, BC6071904,
which authorizes him to dispense
controlled substances in Schedules II
through V as a practitioner, at the
registered address of Advanced
Aesthetics, 7425 Conroy Road, Orlando,
Florida 32835. His registration does not
expire until August 31, 2013.
Registrant is an osteopathic physician
licensed by the State of Florida, who is
board-certified in plastic surgery and
hand surgery. On August 6, 2010, the
State Surgeon General, Florida
Department of Health (DOH), ordered
the emergency suspension of
Registrant’s medical license. In re John
Michael Chois, D.O., Order of
Emergency Suspension of License, at 1
(Fla. DOH Aug. 6, 2010) (No. 2010–
03967). The State Surgeon General
suspended Registrant’s license because
he failed to comply with the DOH’s
order that he provide a hair sample for
drug testing and that he enter an
approved inpatient evaluation program
for healthcare professionals with
substance abuse problems. Id. at 9.
Registrant’s license to practice
medicine remains suspended as of the
date of this Order. Thus, Registrant is
currently without authority to handle
controlled substances under the laws of
the State of Florida, the State in which
he is registered with DEA.
Discussion
Under the Controlled Substances Act
(CSA), a practitioner must be currently
authorized to handle controlled
substances in ‘‘the jurisdiction in which
he practices’’ in order to maintain a DEA
registration. See 21 U.S.C. 802(21)
(‘‘[t]he term ‘practitioner’ means a
physician * * * licensed, registered, or
otherwise permitted, by * * * the
jurisdiction in which he practices * * *
to distribute, dispense, [or] administer
* * * a controlled substance in the
course of professional practice’’). See
also id. § 823(f) (‘‘The Attorney General
shall register practitioners * * * if the
applicant is authorized to dispense
* * * controlled substances under the
laws of the State in which he
practices.’’). As these provisions make
plain, possessing authority under state
law to handle controlled substances is
an essential condition for obtaining and
maintaining a DEA registration.
Accordingly, DEA has held that
revocation of a registration is warranted
whenever a practitioner’s state authority
to dispense controlled substances has
been suspended or revoked. David W.
Wang, 72 FR 54297, 54298 (2007);
Sheran Arden Yeates, 71 FR 39130,
PO 00000
Frm 00082
Fmt 4703
Sfmt 4703
4939
39131 (2006); Dominick A. Ricci, 58 FR
51104, 51105 (1993); Bobby Watts, 53
FR 11919, 11920 (1988). See also 21
U.S.C. 824(a)(3) (authorizing revocation
of a registration ‘‘upon a finding that the
registrant * * * has had his State
license or registration suspended [or]
revoked * * * and is no longer
authorized by State law to engage in the
* * * distribution [or] dispensing of
controlled substances’’).
DEA has further held that revocation
is warranted even where a practitioner’s
state authority has been summarily
suspended and the State has yet to
provide the practitioner with a hearing
to challenge the State’s action and at
which he may ultimately prevail. See
Robert Wayne Mosier, 75 FR 49950
(2010) (‘‘revocation is warranted * * *
even in those instances where a
practitioner’s state license has only been
suspended, and there is the possibility
of reinstatement’’); accord Bourne
Pharmacy, 72 FR 18273, 18274 (2007).
See also Alton E. Ingram, Jr., 69 FR
22562 (2004); Anne Lazar Thorn, 62 FR
12847 (1997) (‘‘the controlling question
is not whether a practitioner’s license to
practice medicine in the state is
suspended or revoked; rather, it is
whether the Respondent is currently
authorized to handle controlled
substances’’).
As found above, on August 6, 2010,
the Florida Surgeon General
immediately suspended Registrant’s
state medical license. Because
Registrant is without authority to
dispense controlled substances in the
State where he practices medicine and
holds his DEA registration, he is not
entitled to maintain his registration. See
21 U.S.C. 802(21), 823(f), 824(a)(3).
Accordingly, Registrant’s registration
will be revoked and any pending
application will be denied.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 823(f) and 824(a), as well
as 21 CFR 0.100(b) and 0.104, I order
that DEA Certificate of Registration,
BC6071904, issued to John M. Chois,
D.O., be, and it hereby is, revoked. I
further order that any pending
application of John M. Chois, D.O., to
renew or modify his registration, be, and
it hereby is, denied. This Order is
effective immediately.1
1 For the same reasons as cited in the State’s
Emergency Suspension Order, I find that the public
interest requires that this Order be made effective
immediately. See 21 CFR 1316.67.
E:\FR\FM\27JAN1.SGM
27JAN1
Agencies
[Federal Register Volume 76, Number 18 (Thursday, January 27, 2011)]
[Notices]
[Pages 4938-4939]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1691]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-56]
Kermit B. Gosnell, M.D.; Decision and Order
On April 30, 2010, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Kermit B. Gosnell, M.D. (Respondent), of Philadelphia,
Pennsylvania. The Show Cause Order proposed the revocation of
Respondent's DEA Certificates of Registration, AG4676992 and BG9223176,
and the denial of any pending applications to renew or modify the
registrations, on the ground that Respondent lacked authority to handle
controlled substances in Pennsylvania and Delaware, the States in which
he maintained the respective registrations. Show Cause Order, at 1
(citing 21 U.S.C. 824(a)(3)).
Respondent, acting pro se, timely requested a hearing, and the
matter was placed on the docket of the Agency's Administrative Law
Judges (ALJ). Thereafter, the ALJ issued an order directing the parties
to file prehearing statements in the matter.
In lieu of a prehearing statement, the Government filed a Motion
for Summary Disposition. Summ. Disp. Mot., at 1. Therein, the
Government contended that Respondent had previously voluntarily
surrendered his DEA registration, BG9223176, thereby negating the need
for any further action regarding that registration; with regard to
registration, AG4676992, the Government contended that Respondent lacks
authority to handle controlled substances in Pennsylvania, the
jurisdiction in which he is licensed to practice medicine and is
registered with the DEA. Id. at 1-2.
In support of its motion, the Government attached an Affidavit
(dated June 16, 2010) of a DEA Diversion Investigator (DI), who stated
that Respondent's Delaware medical license and controlled substances
license were suspended and that Respondent had surrendered DEA
registration, BG9223176. DI Aff., at 1-2. The DI further stated that
Respondent holds DEA registration, AG4676992, at the location of 3801
Lancaster Avenue, Philadelphia, Pa., that this registration will expire
by its terms on September 30, 2010; and that Respondent's Pennsylvania
medical license was then suspended. Id. at 2. In support of its motion,
the Government also attached a copy of the Order of Temporary
Suspension and Notice of Hearing issued to Respondent by the
Commonwealth of Pennsylvania Department of State, State Board of
Medicine, dated February 22, 2010, which ordered the temporary
suspension of Respondent's Pennsylvania medical license effective on
the service of the order.
The Government thus contended that because Respondent ``currently
lacks authority to handle controlled substances in'' Pennsylvania, he
``is not authorized to possess a DEA registration in that state.''
Summ. Disp. Mot., at 1 (citing 21 U.S.C. 801(21), 823(f), 824(a)(3)).
The Government therefore requested that the ALJ grant its motion and
recommend to me that Respondent's registration, AG4676992, be
revoked.\1\
---------------------------------------------------------------------------
\1\ The Government further requested that the ALJ issue an order
staying any further filings pending resolution of its motion.
---------------------------------------------------------------------------
On July 8, 2010, the ALJ issued an order which granted Respondent
until July 16, 2010, to file a response to the Government's motion.
Respondent, however, failed to file a prehearing statement, a response
to the Government's motion, or any other documents or information,
other than his Request for Hearing. Accordingly, on July 20, 2010, the
ALJ granted the Government's Motion, finding that there were no
disputed facts regarding Respondent's loss of state authority to handle
controlled substances in the State in which he held a DEA registration,
and, further, that he had waived his right to a hearing under 21 CFR
1301.43(d). The ALJ recommended that Respondent's DEA registration be
revoked and that any pending applications be denied. The Respondent did
not file exceptions to the decision. The ALJ then forwarded the record
to my office for final agency action.
I adopt the ALJ's finding that Respondent has waived his right to
participate in the proceeding by failing to file a pleading in response
to the Government's motion. ALJ at 4. However, I reject the ALJ's
recommended decision because I conclude that this case is now moot.
The DI's affidavit establishes that Respondent's Philadelphia
registration was due to expire on September 30, 2010. According to the
Agency's registration record for Respondent, of which I take official
notice,\2\ 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 Order. I therefore find that Respondent's
registration expired on September 30, 2010.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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) and
824(a), as well as 21 CFR 0.100(b) and 0.104, I order that the Order to
Show Cause issued to
[[Page 4939]]
Kermit B. Gosnell, M.D., be, and it hereby is, dismissed.
Dated: January 18, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-1691 Filed 1-26-11; 8:45 am]
BILLING CODE 4410-09-P