Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Notices 50353 

Name Position title 

Salad, Bruce M ................................................... Chief, Criminal Enforcement Section, Southern Region. 

Shatz, Eileen M .................................................. Special Litigation Counsel. 

Ward, Richard ..................................................... Chief, Civil Trial Section Western Region. 

Young, Joseph E ................................................ Executive Officer. 

Morrison, Richard T ............................................ Deputy Assistant Attorney General. 

U.S. Marshals Service—USMS 

Auerbach, Gerald ................................................ General Counsel. 

Dolan, Edward .................................................... Assistant Director, Financial Services. 

Dudley, Christopher C ........................................ Associate Director, Administration. 

Farmer, Marc A ................................................... Assistant Director, Operations Support. 

Finan, Robert J. II ............................................... Associate Director, Operations. 

Jones, Sylvester E .............................................. Assistant Director, Witness Security and Prisoner Operations. 

Pearson, Michael A ............................................ Assistant Director, Business Services. 

Rolstad, Scott C .................................................. Assistant Director for Justice Prisoner and Alien Transportation System (JPATS). 

Beckwith, Brian R ............................................... Deputy Director. 

[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] 

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 


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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 

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, 

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, 

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 outVerDate Aug<31>2005 00:53 Aug 26, 2008 Jkt 214001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 C:\FR\FM\26AUN1.SGM 26AUN1

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