20032 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Notices 

18To make clear, in light of the inconsistency 

between the amount of alprazolam Respondent 

obtained and his claimed rate of usage, I reject the 

ALJ’s conclusion ‘‘that Respondent’s abuse of 

alprazolam was limited to his manner of acquiring 

it.’’ ALJ at 36. 

19 In arguing that he has been adequately 

punished for his past misconduct, Respondent 

misapprehends the nature of this proceeding. This 

is a remedial proceeding aimed at protecting the 

public interest. See, e.g., Samuel S. Jackson, 72 FR 

at 23853 (citing Leo R. Miller, 53 FR 21931, 21932 

(1988)). My decision to deny Respondent’s 

application is not based on a determination that he 

needs to be punished but on the fact that his 

unwillingness to accept responsibility and testify 

truthfully establishes that he cannot be entrusted 

with a registration notwithstanding his efforts at 

rehabilitation. 

Respondent also argues that ‘‘it has been over 

three years since [he] engaged in any conduct that 

would suggest that it would be against the public 

interest to issue’’ him a new registration. Exceptions 

at 15. This argument ignores that Respondent’s 

testimony at the proceeding is itself conduct which 

demonstrates that granting his application would be 

inconsistent with the public interest. In addition, 

that three years have passed without further 

incident is hardly impressive given that he has been 

without a registration during this period, thus 

denying him of the means to issue more fraudulent 

prescriptions. 

20 I find it unnecessary to give any weight to the 

2005 incident in which Respondent represented to 

a Chicago law firm that he had an active and 

unrestricted medical license when his licensed had 

been suspended. See GX 8. Between his 

presentation of the two fraudulent prescriptions in 

1989, his false statement to the police following his 

arrest, his false testimony in the 1991 proceeding, 

and the more recent incidents of his calling in 

numerous fraudulent prescriptions, there is more 

than ample evidence to question his credibility. 

account for the other 460 tablets he 

obtained during this period. The 

inconsistency between the amounts he 

obtained and his testimony supports the 

conclusion that Respondent lied about 

his rate of usage and likely did so to 

portray himself as being only an 

alcoholic and not a drug abuser.18

Thus, while Respondent produced 

extensive evidence of his rehabilitation 

from alcohol abuse, there is ample 

reason to be skeptical of his claim that 

he is not a drug abuser and that he has 

learned from his mistakes. Moreover, 

even assuming the good faith of those 

who have treated (and/or evaluated) 

him, and that the treatment he received 

for his alcoholism would be efficacious 

in treating prescription drug abuse 

notwithstanding his apparent 

unwillingness to acknowledge the 

extent of his alprazolam misuse, it is 

nonetheless clear that Respondent has a 

serious aversion to telling the truth. I 

therefore hold that Respondent has 

failed to accept responsibility for his 

misconduct and has failed to rebut the 

Government’s prima facie case. 

In his Exceptions, Respondent 

contends that he ‘‘cannot eradicate his 

past criminal history’’ and that the ALJ’s 

recommendation that his application be 

denied ‘‘is tantamount to a permanent 

revocation * * * especially since the 

DEA considered most of the same 

information’’ in my 2007 order which 

denied his previous application. 

Exceptions, at 14. Respondent also 

contends that because the issues 

litigated in ‘‘the 1992 hearing before 

DEA are res judicata [they] should not 

be considered in any determination in 

this matter.’’ Id. at 6. Finally, he 

contends that he has been adequately 

punished for his past misconduct and 

that the proper focus should have been 

‘‘whether the circumstances in existence 

at the time of the prior denial in July 20, 

2007 have sufficiently changed to 

warrant the issuance of Respondent’s 

DEA registration.’’ Exceptions, at 6–12. 

Contrary to Respondent’s view, 

Congress expressly directed the Agency 

to consider an ‘‘applicant’s experience 

in dispensing * * * controlled 

substances.’’ 21 U.S.C. 823(f). 

Respondent’s previous incidents of 

presenting fraudulent prescriptions are 

thus properly considered in this 

proceeding. Moreover, while it is true 

that Respondent ‘‘cannot eradicate his 

past criminal history,’’ he could have 

testified truthfully in this proceeding 

and accepted responsibility for his 

misconduct.19 See Robert Leslie, 68 FR 

15227 (2003) (denying application based 

on physician’s continued unwillingness 

to accept responsibility for criminal 

conduct he engaged in seventeen years 

earlier). I am therefore wholly 

unpersuaded by Respondent’s 

contention that the circumstances have 

sufficiently changed to warrant granting 

his application. 

Respondent cites Azen v. DEA, 76 

F.3d 384 (tablet) (9th Cir. 1996), an 

unpublished decision, as support for his 

contention that in light of his evidence 

of rehabilitation, it would be ‘‘unduly 

harsh’’ to deny his application. Putting 

aside that the Ninth Circuit upheld the 

Agency’s decision to revoke Dr. Azen’s 

registration, Respondent ignores that in 

1993, the Agency previously gave him a 

second chance to demonstrate that he 

could be entrusted with a registration, 

yet he again breached this trust. 

Respondent also ignores under the 

Agency’s rules, he had a way back to 

regaining his registration. That he could 

not testify truthfully about either the 

1989 episode or his more recent 

criminal behavior and abuse of 

alprazolam makes clear that, 

notwithstanding his rehabilitation 

efforts, he cannot be entrusted with a 

new registration.20 Accordingly, 

Respondent’s application will be 

denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f), as well as by 28 CFR 

0.100(b) and 0.104, I hereby order that 

the application of Alan H. Olefsky, 

M.D., be, and it hereby is, denied. This 

Order is effective May 11, 2011. 

Dated: April 1, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–8543 Filed 4–8–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 10–7] 

Thomas E. Mitchell, M.D.; Dismissal of 

Proceeding 

On September 11, 2009, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Thomas E. Mitchell, 

M.D. (Respondent), of Santa Ana, 

California. The Show Cause Order 

proposed the revocation of 

Respondent’s DEA Certificate of 

Registration and the denial of any 

pending applications to renew or 

modify his registration on the ground 

that, because of an action brought by the 

Medical Board of California (MBC), he 

lacks authority to dispense controlled 

substances in the State in which he is 

registered. Show Cause Order at 1. 

On October 13, 2009, Respondent’s 

counsel filed a letter in which he 

requested an extension of time (of 60 

days no less) to respond to the Show 

Cause Order. Letter from Robert H. 

McNeill, Jr., to Hearing Clerk (Oct. 9, 

2009). Therein, Respondent’s counsel 

stated that Respondent was currently 

awaiting trial on two felony counts of 

violating California’s tax laws. Id. 

Respondent’s counsel further stated that 

‘‘[t]he resolution of the criminal case 

will significantly affect Dr. Mitchell’s 

decision of whether to request a hearing 

on the Order to Show Cause.’’ Id. 

Deeming this letter to be a request for 

a hearing, on October 22, 2009, the ALJ 

issued an order directing that the 

Government file its pre-hearing 

statement on or before January 6, 2010, 

and that Respondent file his pre-hearing 

statement on February 8, 2010. Order for 

Prehearing Statements at 1–2. 

Thereafter, on November 2, 2009, the 

Government moved for summary 

disposition on the ground that, on 

December 18, 2008, the MBC had 

suspended Respondent’s Physician’s 

and Surgeon’s Certificate for failing to 


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Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Notices 20033 

1Specifically, that Respondent had previously 

held a West Virginia medical license. 

2While the Show Cause Order will be dismissed, 

under 21 U.S.C. 823(f), Respondent is not entitled 

to be registered until he is again ‘‘authorized to 

dispense * * * controlled substances under the 

laws of the State in which he practices.’’ 

comply with a condition imposed by the 

Board’s previous order. Mot. for Summ. 

Disp., at 1–2. Citing agency precedent, 

the Government argued that because 

Respondent lacks authority to dispense 

controlled substances in California, he 

is not authorized to hold a DEA 

registration in the State and his 

registration should be revoked. Id. As 

support for the motion, the Government 

attached the various MBC orders, as 

well as a printout of Respondent’s 

registration status, which indicated that 

his registration was to expire on January 

31, 2010. Mot. for Summ. Disp., at Exs. 

1–4. 

On November 16, 2009, Respondent 

filed an opposition to the motion. 

Respondent’s Opposition at 4. Therein, 

Respondent argued that the MBC’s order 

‘‘is not reasonable and is fraught with 

procedural misconduct, 

misrepresentations and the subsequent 

illegitimate denial of due process.’’ Id. 

On November 25, 2009, following a 

further round of briefing by both parties 

on an issue of no material 

consequence,1 the ALJ issued her 

Recommended Decision. Therein, she 

found that it was undisputed that 

Respondent lacks authority to dispense 

controlled substances in California and 

that under the Controlled Substances 

Act, DEA therefore lacks authority to 

continue his registration. ALJ Dec. at 5. 

The ALJ thus granted the Government’s 

motion and recommended that 

Respondent’s registration be revoked. Id 

Neither party filed exceptions to the 

ALJ’s Decision. On January 8, 2010, the 

ALJ forwarded the record to my Office 

for final agency action. Upon receipt of 

the record, it was determined that while 

Respondent’s registration was to expire 

on January 31, 2010, he had yet to file 

a renewal application. A subsequent 

query of the Agency’s registration 

records confirmed that Respondent 

allowed his registration to expire and 

did not file a renewal application. 

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). Moreover, in 

the absence of an application (whether 

timely filed or not), there is nothing to 

act upon. Accordingly, because 

Respondent has allowed his registration 

to expire and has not filed any 

application, this case is now moot and 

will be dismissed.2

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 

Thomas E. Mitchell, M.D., be, and it 

hereby is, dismissed. This Order is 

effective immediately. 

Dated: April 1, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–8531 Filed 4–8–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 10–8] 

Robert Charles Ley, D.O. ; Dismissal of 

Proceeding 

On September 28, 2009, I, the then 

Deputy Administrator of the Drug 

Enforcement Administration, issued an 

Order to Show Cause and Immediate 

Suspension of Registration (‘‘Order’’) to 

Robert Charles Ley, D.O. (Respondent), 

of Kihei, Hawaii. Order to Show Cause 

at 1. The Order, which also sought the 

revocation of Respondent’s registration 

and the denial of any pending 

applications to renew his registration, 

alleged, inter alia, that Respondent had 

issued numerous prescriptions for 

controlled substances to undercover 

police officers which lacked a legitimate 

medical purpose and therefore violated 

Federal law. Id. at 2. 

On October 2, 2009, Respondent was 

served with the Order, and on October 

7, 2009, he requested a hearing on the 

allegations. The matter was then 

assigned to an Agency Administrative 

Law Judge (ALJ), who proceeded to 

conduct pre-hearing procedures. 

On November 4, 2009, the 

Government moved for summary 

disposition on the ground that the State 

of Hawaii had suspended Respondent’s 

state controlled substances registration 

and that he was therefore no longer 

entitled to hold a registration under the 

Controlled Substances Act. See 21 

U.S.C. 823(f) and 824(a)(3). Finding that 

there were no material facts in dispute, 

the ALJ granted the motion, 

recommended that I revoke 

Respondent’s registration and deny any 

pending applications, and forwarded 

the record to me for final agency action. 

Order Granting Summary Disposition 

and Recommended Decision, at 6. 

On January 12, 2010, the State of 

Hawaii re-instated Respondent’s state 

registration. As a consequence, the 

Government was no longer entitled to a 

Final Order adopting the ALJ’s 

Recommended Decision. Accordingly, 

on March 2, 2010, the Government 

moved to remand the case for further 

proceedings. Motion to Remand Case for 

Further Proceedings, at 1. 

Respondent did not, however, file an 

application to renew his registration 

which was due to expire on March 31, 

2010. Respondent’s registration 

therefore expired on March 31, 2010. 

Accordingly, on May 5, 2010, the 

Government moved to terminate the 

proceeding on the ground that this case 

is now moot. Motion to Terminate 

Administrative Proceedings, at 2. On 

May 26, 2010, I therefore ordered that 

Respondent file a response to the 

Government’s motion; I further ordered 

that if Respondent contended that the 

matter was not moot, he should 

specifically address what collateral 

consequence attach as a result of the 

issuance of the immediate suspension, 

whether he intends to remain in 

professional practice, and why he failed 

to file a renewal application. See Order 

at 1–2 (May 26, 2010). 

On June 25, 2010, Respondent filed 

his response. See Respondent’s 

Memorandum In Response to Motion to 

Terminate Administrative Proceedings. 

Therein, Respondent ‘‘maintain[s] that 

the summary suspension of his DEA 

registration * * * was improper and 

unjustified, [but] due to physical 

conditions beyond his control, [he] is no 

longer in a position to pursue his 

administrative remedies.’’ Id. at 1. 

Respondent therefore ‘‘does not object to 

the termination’’ of the proceeding. Id. 

DEA has previously 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.’’ 

Ronald J. Riegel, 63 FR 67132 (1998). 

While 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 an 

immediate suspension, see William R. 

Lockridge, 71 FR 77791, 77797 (2006), 

Respondent has not identified any 

collateral consequence caused by the 

order. Indeed, Respondent does not 

object to the termination of this 

proceeding. Accordingly, this 

proceeding is now moot and the 

Government’s motion to terminate the 

proceeding will be granted. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 824, as well as 28 CFR 


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