[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]                         

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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]

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