[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Notices]
[Pages 50353-50354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19773]


-----------------------------------------------------------------------

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]
BILLING CODE 4410-09-P