[Federal Register Volume 83, Number 147 (Tuesday, July 31, 2018)]
[Notices]
[Pages 36966-36967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16313]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Craig S. Morris, DDS; Dismissal of Proceeding
On November 13, 2017, the Acting Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Craig S. Morris, DDS (Respondent), of Texas. The
Show Cause Order proposed the revocation of Respondent's Certificates
of Registration FM5300582 and FM5293294 on the ground that he
``materially falsified [his] applications for [his] DEA Certificates of
Registration.'' Order to Show Cause, Government Exhibit (GX) A-8 to
Request for Final Agency Action (RFAA), at 1 (citing 21 U.S.C.
824(a)(1)).
With respect to the Agency's jurisdiction, the Show Cause Order
alleged that Respondent was registered at that time in schedules II
through V, pursuant to DEA Certificates of Registration Nos. FM5300582
and FM5293294 at the addresses of 19121 West Lake Houston Parkway,
Humble, TX, and 25130 Grogans Park Drive, The Woodlands, TX,
respectively.\1\ Id. at 1-2. The Order also alleged that these
registrations would each expire on January 31, 2018. Id.
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\1\ The record establishes that Respondent was registered as a
``practitioner'' with respect to each of the above DEA
registrations. Certifications of Registration History for FM5300582
and FM5293294, GXs A-1 at 1, 3; A-2, at 1, 3.
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As substantive grounds for the proceeding, the Show Cause Order
alleged that on February 9, 2015, Respondent ``submitted applications
to the DEA for the above-referenced Certificates of Registration'' but
materially falsified the application when he ``provided a `no' response
to Liability Question 3, which asked, `[h]as the applicant ever
surrendered (for cause) or had a state professional license or
controlled substances registration revoked, suspended, denied,
restricted or placed on probation, or is any such action pending?' ''
Id. at 2. The Order further alleged that, when he ``submitted his
applications to the DEA and provided a `no' answer to Liability
Question 3, [his] Nevada license to practice dentistry had been placed
on probation and was currently suspended.'' Id. Based on Respondent's
alleged ``material falsification of [his] applications to the DEA,''
the Order asserted that ``DEA must revoke'' his registrations. Id. at
3.
The Show Cause Order notified Respondent of his right to request a
hearing on the allegations or to submit a written statement in lieu of
a hearing, the procedure for electing either option, and the
consequence of failing to elect either option. Id. (citing 21 CFR
1301.43). The Show Cause Order also notified Respondent of his right to
submit a corrective action plan. Id. at 3-4 (citing 21 U.S.C.
824(c)(2)(C)).
The Government represents that on November 20, 2017, a DEA
Diversion Investigator (DI) served a copy of the Show Cause Order on
Respondent by electronic mail to an email address that the DI had
previously used to correspond with Respondent in April 2017 and that
Respondent had provided to DEA as a ``contact email'' in connection
with his DEA Certificates of Registration. RFAA, at 3-4 (citing
Declaration of DI, attached as GX A to RFAA, at 3). There is no dispute
that timely service occurred because the Government states that DEA's
Diversion Control Division received Respondent's written submissions in
connection with the Show Cause Order on December 19, 2017. RFAA, at 4
(citing the Diversion Control Division's Acting Assistant
Administrator's December 20, 2017 letter to Respondent, attached as GX
C to RFAA, at 1).
Although Respondent's submissions included a letter (dated December
12, 2017) entitled ``Corrective Action Plan,'' the letter stated that
it was ``being submitted in response to the Order to Show Cause levied
against me by your office'' and attached an affidavit in support signed
by Respondent and notarized on December 15, 2017. Respondent's Written
Submissions (hereinafter ``Respondent's Statement'' or ``Resp.
Stat.''), attached as GX B to RFAA, at 1. Respondent did not, however,
request a hearing. See generally id. Based on Respondent's submission,
I find that he waived his right to a hearing on the allegations. 21 CFR
1301.43(c). However, pursuant to 21 CFR 1301.43(c), I deem Respondent's
submission to be his ``written statement
[[Page 36967]]
[of] position on the matters of fact and law involved'' in the
proceeding. See Arthur H. Bell, D.O., 80 FR 50035, 50036 (2015)
(deeming Respondent's letter to be a written statement pursuant to 21
CFR 1301.43(c) because the letter ``responded to each of the
Government's allegations'' without requesting a hearing).\2\ On March
16, 2018, the Government forwarded its Request for Final Agency Action
and the evidentiary record to my Office.
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\2\ In its Request for Final Agency Action, the Government
properly treated Respondent's written submissions as a ``written
statement'' pursuant to 21 CFR 1301.43. RFAA, at 6-8. However,
because I am dismissing the Government's Show Cause Order as moot, I
decline to reach the question of whether Respondent's submissions
could also be deemed to have included a Corrective Action Plan
pursuant to 21 U.S.C. 824(c)(2)(C).
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Having reviewed the record, I find that this proceeding is now
moot. The evidence in the record establishes that each of Respondent's
registrations at issue were due to expire on January 31, 2018, and
according to the Agency's registration record for Respondent, of which
I take official notice,\3\ Respondent has not submitted an application
to renew his registrations. DEA has long held that `` `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.' ''
Donald Brooks Reece II, M.D., 77 FR 35054, 35055 (2012) (quoting Ronald
J. Riegel, 63 FR 67312, 67133 (1998)). ``Moreover, in the absence of an
application (whether timely filed or not), there is nothing to act
upon.'' Id. at 35055.
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\3\ 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). To allow Respondent the opportunity to refute the
facts of which I take official notice, Respondent may file a motion
for reconsideration within 15 calendar days of service of this order
which shall commence on the date this order is mailed.
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Although the Government acknowledges that Respondent's DEA
registrations expired on January 31, 2018 and prior to its March 16,
2018 Request for Final Agency Action, RFAA, at 1, the Government
nonetheless argues that the ``matter is not moot.'' Id. at 5.
Specifically, the Government claims that, prior to the issuance of the
Show Cause Order, Respondent requested ``to modify his DEA Certificates
of Registration and change his registered address to an address in
California, where [he] holds an active dental license. That request for
modification is pending.'' Id. at 5-6. The Government's argument that
the case is not moot based on this purported modification request is
unavailing for at least two reasons.
First, as a threshold matter, the record does not establish by a
preponderance of the evidence that Respondent does, in fact, have a
pending request to modify the address of his DEA registrations to an
address in California. In its Request, the Government relies
exclusively on the DI's statement in her Declaration that, ``[o]n
February 17, 2017, Dr. Morris submitted a request for modification of
his DEA Certificates of Registration [FM5300582 and FM5293294], seeking
to change his address to 19121 Allingham Avenue, Cerritos,
California.'' GX A, at 3. The DI does not cite in her Declaration to
any evidence in support of this statement. See id. Furthermore, the
Government submitted a Certification of Registration History for each
of these registrations (both dated March 12, 2018), and neither
certification references this modification request. GX A-1; GX A-2. In
addition, the Agency's registration record for Respondent reflects no
reference to these specific modification requests.\4\ Indeed, not even
the Show Cause Order references the modification request. See GX A-8.
Thus, because the Government's argument against mootness relies
entirely on a pending modification request not established in the
record, I reject the Government's argument on this basis alone. See
RFAA, at 3.
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\4\ I take official notice of this fact pursuant to the
authority set forth supra in footnote 3.
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Second, even if the purported modification requests were made, my
finding that this case is moot would not change. The Government argues
that the Show Cause Order to revoke Respondent's registrations is not
moot when a request to modify such registrations remains pending (even
after the expiration of the very registration that Respondent seeks to
modify) because DEA regulations state that ``a request for modification
shall be handled in the same manner as an application for
registration.'' Id. at 5-6 (citing 21 CFR 1301.51(c)). I disagree.
The fact that DEA handles a modification request ``in the same
manner as an application for registration'' pursuant to 21 CFR
1301.51(c) does not mean that a modification request is the same as an
application for a new registration in every respect. For example,
although a registrant must pay a fee when he or she applies for a new
registration, see 21 CFR 1301.14(a), ``[n]o fee shall be required for
modification.'' Id. 1301.51(c). Most importantly, even if a
modification request is approved and a new certificate of registration
is issued, DEA regulations state that the new (as modified)
registration expires when the original registration certificate
expires. Id. (``If the modification of registration is approved, the
Administrator shall issue a new certificate of registration . . . to
the registrant, who shall maintain it with the old certificate of
registration until expiration.'') (emphasis added). Thus, unlike a
timely renewal application, a request to modify the registration
address of an existing registration (whether pending or granted) does
not remain pending after that registration expires, nor does it operate
to extend when that registration expires. See 21 CFR 1301.51(c).\5\
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\5\ Neither of the cases that the Government relies upon
supports its position. RFAA, at 5-6 (citing Michael G. Dolin, M.D.,
65 FR 5661, 5661 (2000); Daniel Koller, D.V.M., 71 FR 66975 (2006)).
Michael G. Dolin focused on whether Respondent lacked state
authorization to handle controlled substances and does not address
the issue of mootness. 65 FR at 5661. The Government's other case,
Daniel Koller, actually cuts against its position. In that case, the
registrant had separately submitted an application for a new DEA
registration at a new location--in addition to prior submissions for
modifications of the existing registration for the new location. 71
FR at 66979-81. Ultimately, the Agency found that ``Respondent's
Registration . . . [had] expired . . . , and that Respondent did not
file a renewal application, let alone a timely one, for this
registration.'' Id. at 66981. As a result, the Agency did not revoke
the expired registration nor consider the pending requests to modify
that registration, as the Government requests in this case. See id.
Instead, the Agency held, as I do here, that ``the revocation
portion of this proceeding is moot.'' Id. The Agency properly
concluded in Koller that only the application for a new registration
``remain[ed] a live controversy.'' Id.
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Accordingly, because Respondent has allowed his registrations to
expire and did not file an application to renew his registrations, this
case is now moot and will be dismissed.
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well
as 28 CFR 0.100(b), I order that the Order to Show Cause issued to
Craig S. Morris, DDS, be, and it hereby is, dismissed. This Order is
effective immediately.
Dated: July 18, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-16313 Filed 7-30-18; 8:45 am]
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