Federal Register / Vol. 74, No. 204 / Friday, October 23, 2009 / Notices 54851 

1 It appears that Respondent filed the form for a 

renewal application and not the form for a new 

application. 

States v. BASF Corporation, D.J. Ref. 

90–5–2–1–08255. 

The Consent Decree may be examined 

at the Office of the United States 

Attorney, 350 Magnolia Avenue, 

Beaumont, TX 77701, and at U.S. EPA 

Region 6, 1445 Ross Avenue, Dallas TX 

75202. During the public comment 

period, the Consent Decree may also be 

examined on the following Department 

of Justice Web site, to http:// 

www.usdoj.gov/enrd/ 

Consent_Decrees.html. A copy of the 

Consent Decree may also be obtained by 

mail from the Consent Decree Library, 

P.O. Box 7611, U.S. Department of 

Justice, Washington, DC 20044–7611 or 

by faxing or e-mailing a request to Tonia 

Fleetwood (tonia.fleetwood@usdoj.gov), 

fax no. (202) 514–0097, phone 

confirmation number (202) 514–1547. In 

requesting a copy from the Consent 

Decree Library, please enclose a check 

in the amount of $9.25 (25 cents per 

page reproduction cost) payable to the 

U.S. Treasury or, if by e-mail or fax, 

forward a check in that amount to the 

Consent Decree Library at the stated 

address. 

Maureen Katz, 

Assistant Chief, Environmental Enforcement 

Section, Environment and Natural Resources 

Division. 

[FR Doc. E9–25494 Filed 10–22–09; 8:45 am] 

BILLING CODE 4410–15–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 07–6] 

Samuel H. Albert, M.D.; Dismissal of 

Proceeding 

On October 25, 2006, the Deputy 

Assistant Administrator, Office of 

Diversion Control, issued an Order to 

Show Cause to Samuel H. Albert, M.D. 

(Respondent), of Fountain Valley, 

California. ALJ Ex. 1, at 1. The Show 

Cause Order proposed the denial of 

Respondent’s ‘‘pending application for a 

DEA Certificate of Registration’’ as a 

practitioner on the grounds that on this 

application, which he submitted on 

March 24, 2006, as well as on multiple 

previous applications for renewal of his 

previous registration, Respondent had 

materially falsified his applications by 

failing to indicate that the Medical 

Board of California had imposed 

disciplinary sanctions on his state 

medical license, which included a 

revocation which was stayed, a thirtyday suspension, and the imposition of 

probationary terms. Id. at 1–2 (citing 21 

U.S.C. 824(a)(1)). The Show Cause 

Order further alleged that Respondent’s 

previous registration had expired on 

June 5, 2005, and that thereafter, 

Respondent had issued approximately 

200 controlled substance prescriptions 

without being registered. Id. at 1–2. 

(citing 21 U.S.C. 822(a)(2), 841(a)(1), 

843(a)(2)). 

Respondent requested a hearing on 

the allegations and the matter was 

assigned to an Administrative Law 

Judge (ALJ), who conducted a hearing in 

Los Angeles, California. ALJ Dec. at 3. 

At the hearing, both parties elicited 

testimonial evidence and introduced 

documentary evidence. Id. at 3. 

Following the hearing, both parties filed 

briefs containing their proposed 

findings of fact, conclusion of law, and 

argument. 

Thereafter, the ALJ issued her 

recommended decision. Neither party 

filed exceptions. The record was then 

forwarded to me for final agency action. 

Upon reviewing the record, I noted 

that on May 16, 2006, more than five 

months prior to the issuance of the 

Order to Show Cause, Respondent 

submitted a letter to a DEA Field Office 

in which he requested to withdraw his 

application to renew his registration. 

See RX C. Under an Agency regulation, 

‘‘[a]n application may be amended or 

withdrawn without permission of the 

Administrator at any time before the 

date on which the applicant receives an 

order to show cause.’’ 21 CFR 1301.16(a) 

(emphasis added). Because this 

regulation plainly did not require that 

Respondent obtain permission from the 

Agency for the withdrawal of his 

application to be effective and it thus 

appeared that Respondent did not have 

an application currently pending before 

the Agency, I ordered the parties to 

address whether this proceeding is ripe 

for adjudication. 

Thereafter, only the Government filed 

a brief. Having considered the 

Government’s arguments, I conclude 

that there is no application currently 

pending before the Agency and that this 

case is not ripe for adjudication. 

Accordingly, the Order to Show Cause 

must be dismissed. 

Findings 

Prior to its expiration on June 30, 

2005, Respondent held DEA Certificate 

of Registration, AA0017473, which 

authorized him to dispense controlled 

substances in schedules II through V as 

a practitioner. GX 7. Respondent did not 

file a renewal application prior to the 

expiration of his registration. Rather, on 

or about March 24, 2006, Respondent 

filed an application. GX 6. The actual 

application form is not, however, part of 

the record.1

On May 16, 2006, apparently after a 

conversation with a DEA Diversion 

Investigator (DI) regarding the 

application, Respondent submitted a 

letter to the DI. RX C. The letter’s 

opening paragraph stated: ‘‘The purpose 

of this letter is to request withdrawal of 

my recent attempt to obtain an 

extension and renewal of [my] DEA 

certificate.’’ Id. at 1. Later in the letter, 

Respondent further wrote: ‘‘I request 

that you permit me to withdraw the 

current application for renewal, so that 

I may in the future submit [a] new 

application for a different DEA 

certificate number.’’ Id. at 2. 

On October 25, 2006, the Deputy 

Assistant Administrator, Office of 

Diversion Control, issued an Order to 

Show Cause which proposed the denial 

of Respondent’s ‘‘pending application.’’ 

ALJ Ex. 1. On some date not later than 

November 22, 2006, Respondent 

received the Order to Show Cause. ALJ 

Ex. 2. 

Discussion 

Under a DEA regulation, ‘‘[a]n 

application may be amended or 

withdrawn without permission of the 

Administrator at any time before the 

date on which the applicant receives an 

order to show cause pursuant to 

§ 1301.37.’’ 21 CFR 1301.16(a) 

(emphasis added). The same regulation 

further provides that ‘‘[a]n application 

may be amended or withdrawn with 

permission of the Administrator at any 

time where good cause is shown by the 

applicant or where the amendment or 

withdrawal is in the public interest.’’ Id. 

As the regulation makes plain, an 

applicant’s receipt of an Order to Show 

Cause is the operative event in 

determining whether he must obtain the 

Agency’s permission to withdraw his 

application. When an applicant seeks to 

withdraw an application prior to his 

receipt of the Order to Show Cause, he 

is entitled to do so as a matter of right. 

Respondent’s May 2006 letter 

provides a clear and manifest 

expression of his intent to withdraw his 

application. Indeed, it is hard to 

imagine how Respondent could have 

made his intent to withdraw any clearer. 

See RX C, at 1 (‘‘The purpose of this 

letter is to request withdrawal’’); id. at 

2 (‘‘I request that you permit me to 

withdraw the current application for 

renewal’’). Moreover, because at the 

time he requested to withdraw, 

Respondent had not been served with 


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54852 Federal Register / Vol. 74, No. 204 / Friday, October 23, 2009 / Notices 

2 During cross-examination, the following 

colloquy occurred: 

Q. * * * When you wrote the letter, weren’t you 

aware that you were not dealing with a renewal, 

you’re dealing with a new application; is that 

correct? 

A. Well, yes. That’s why part of the text of the 

letter was that [I] realized that what I should do is 

cancel any application I had, and then make an 

application for a brand new number, and I thought 

that the wisest course would be to request 

permission from the DEA. 

Q. But the March 06 was a new application; 

correct? 

A. Well, as it turns out, it was at the time. But 

I was not thinking quite clearly then. 

Q. * * * But by the time you wrote this letter, 

was your thinking more clear? 

A. Well, if you read the last paragraph, you’ll see 

what my thinking was at the time. What I requested 

was that I wanted to withdraw the application that 

I wrote down [in the letter] was an application for 

renewal, although in fact it was an application for 

a new DEA number. And then I wanted to submit 

a new application, which shows you that I was not 

completely aware of what I had done, even when 

I wrote this letter. 

Q. * * * So now you realize that * * * the letter 

* * * should not have referred to a request for 

renewal because the March application was a new 

application? 

A. I understand that now. 

Tr. 244–45. 

Moreover, the Government ignores Respondent’s 

answers to two of the ALJ’s questions. When asked 

‘‘what is it you think you have pending before the 

DEA?,’’ Respondent answered: ‘‘I believe that 

what’s pending is the DEA’s letter to me, which is 

called an order to show cause, and this I believe is 

my response to that letter.’’ Tr. 269. Noting that her 

‘‘question was not very artfully asked,’’ the ALJ 

then asked Respondent: ‘‘[i]n terms of your 

registration, do you believe you have an application 

for a new registration pending before the DEA?’’ Id. 

Respondent answered: 

I do not, and the reason is that I’ve never received 

any confirmation from the DEA, that I have any sort 

of application pending, new or old, or renewal, and 

therefore I think at the moment, that I do not have 

a valid DEA number, and I will be trying to obtain 

one in accordance with whatever techniques there 

are to obtain them. 

Id. at 269–70. 

To the extent it is even necessary or appropriate 

to go beyond the unambiguous text of Respondent’s 

letter in assessing his intent, Respondent’s 

testimony on cross examination fails to establish 

the Government’s contention that he did not intend 

to withdraw. Moreover, the Government does not 

explain why Respondent should be deemed to have 

‘‘constructively acknowledged’’ that his application 

is still pending when he expressly testified as to his 

belief that he does not have an application pending 

before the Agency. 

the Show Cause Order (and would not 

be served with the Order for at least 

another five months), he did not need 

the Agency’s permission to do so. That 

he erroneously believed he needed the 

Agency’s permission to withdraw does 

not make his intent to do so any less 

clear. 

The Government nonetheless attempts 

to create ambiguity out of clarity. In its 

brief, the Government contends that 

‘‘[f]rom the context of [his] letter and the 

testimony, it is clear that Respondent 

did not intend his letter to be a 

withdrawal of his new application.’’ 

Gov. Br. at 3. The Government 

maintains that this is so because ‘‘[t]he 

letter was written in response to a 

request from [the] DI to explain the 

answers in [Respondent’s] past renewal 

application and his new application.’’ 

Id. The Government further contends 

that Respondent prepared the letter 

‘‘under the mistaken belief that the new 

application was a renewal application 

and that he needed to file a new 

application in place of the ‘renewal’ 

application.’’ Id. 

The Government also argues that 

because his counsel requested a hearing 

on the allegations of the Show Cause 

Order, ‘‘Respondent has constructively 

acknowledged that the letter was not a 

withdrawal of his pending new 

application for a DEA registration.’’ Id. 

The Government further contends that 

Respondent should ‘‘have moved to 

clarify his position by clearly asking to 

withdraw his application.’’ Id. 

The Government’s arguments are not 

persuasive. As for its contention that 

Respondent testified that he submitted 

the letter in the mistaken belief that he 

had submitted the wrong application 

form, thus implying that Respondent 

would not have submitted the letter if 

he had only recognized that he had 

submitted the correct form, the 

argument misreads the evidence. 

Respondent’s May 2006 letter made 

clear enough that the reason he sought 

to withdraw the application (whether it 

was filed on the correct form or not) was 

not because it was filed on the wrong 

form, but because it contained an 

‘‘inadvertent error’’ which he sought to 

correct. RX C, at 1–2. Moreover, even in 

his testimony on cross-examination, 

Respondent never asserted that he did 

not intend to withdraw.2

No more persuasive is the 

Government’s contention that because 

Respondent requested a hearing on the 

allegations, he constructively 

acknowledged that the letter was not a 

withdrawal. The Government ignores 

that this act occurred approximately six 

months after Respondent submitted his 

letter and is hardly indicative of his 

intent in sending the letter. Moreover, 

the Government fails to acknowledge 

that it was the party that filed the Show 

Cause Order, which proposed to deny 

what it asserted was his ‘‘pending 

application’’ before the Agency. ALJ 1, 

at 1. Having been notified by the 

Government that it was proceeding to 

adjudicate his still ‘‘pending 

application,’’ and that he had a right to 

be heard on the allegations, it was 

reasonable for Respondent to have 

requested a hearing to defend himself. 

Respondent’s act in requesting a hearing 

therefore does not negate the clear 

intent of his letter. 

It is true, of course, that Respondent 

is charged with knowledge of the 

Agency’s regulation. See Federal Crop. 

Ins. Corp. v. Merrill, 332 U.S. 380, 384– 

85 (1947). But so, too, are the 

Government’s personnel including its 

Investigator (who received the letter), its 

Counsel, and the ALJ. Moreover, 

Respondent’s withdrawal of his 

application goes to the subject matter 

jurisdiction of the Agency, an issue 

which can and should be raised sua 

sponte. In short, because Respondent 

withdrew his application, there is 

nothing to adjudicate. See, e.g., Ronald 

J. Riegel, 63 FR 67132, 67133 (1998). 

Finally, the Government contends 

that it would ‘‘be a futile act to treat 

[Respondent’s letter] as a withdrawal, 

only to have [him] re-submit the 

application and have the matter relitigated.’’ Gov. Br. 4. The Government 

may, of course, choose to relitigate 

whether Respondent is entitled to be 

registered in the event he files a new 

application. But the Government’s 

predicament is entirely of its own 

making. Having promulgated the 

regulation, the Government must abide 

by it. 

Moreover, contrary to the 

Government’s understanding, the 

relevant judicial authority suggests that 

the issuance of a final order would also 

‘‘be a futile act.’’ Id. It is well settled that 

where the federal courts cannot review 

an agency order because of intervening 

mootness, the court vacates the agency’s 

order. See A.L. Mechling Barge Lines, 

Inc. v. United States, 368 U.S. 324, 329 

(1961) (vacating administrative orders 

which had become unreviewable in 

federal court); American Family Life 

Assurance Co. v. FCC, 129 F.3d 625, 630 

(D.C. Cir. 1997) (‘‘Since Mechling, we 

have, as a matter of course, vacated 

agency orders in cases that have become 

moot by the time of judicial review.’’). 

This case does not raise a question of 

mootness, but rather, one of ripeness (as 

there is no application before the 

Agency, and indeed, there was no 

application at the time the case was 

commenced). Nonetheless, were 

Respondent to file a petition for review, 

because of the Article III limits on the 

judicial power, the court of appeals 

would likely hold that the case is not 

justiciable. See Ohio Forestry Ass’n, Inc. 

v. Sierra Club, 523 U.S. 726, 732–33 

(1998); see also DaimlerChrysler Corp. 

v. Cuno, 547 U.S. 332, 352 (2006) 

(noting that ripeness doctrine 

‘‘originate[s] in Article III’s ‘case’ or 

‘controversy’ language’’). Having 

concluded that the case was not 


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Federal Register / Vol. 74, No. 204 / Friday, October 23, 2009 / Notices 54853 

justiciable, the court of appeals would 

simply vacate the Agency’s order. Cf. 

Mechling, 368 U.S. at 329 (applying to 

unreviewed administrative orders the 

principle ‘‘that a party should not be 

concluded in subsequent litigation by a 

District Court’s resolution of issues, 

when appellate review of the judgment 

incorporating that resolution, otherwise 

available as of right, fails because of 

intervening mootness * * * [T]hat 

principle should be implemented by the 

reviewing court’s vacating the 

unreviewed judgment below.’’). Thus, 

contrary to the Government’s 

understanding, it would be pointless to 

issue a final order which in all 

likelihood would be vacated by the 

court of appeals and which would 

therefore have no preclusive effect. 

In conclusion, because Respondent’s 

May 2006 letter clearly manifested his 

intent to withdraw his application, and 

the Agency’s regulation does not require 

that he obtain its permission to do so, 

I hold that there is no application 

currently before the Agency. 

Accordingly, the Order to Show Cause 

must be dismissed. 

It is so ordered. 

Dated: October 15, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–25480 Filed 10–22–09; 8:45 am] 

BILLING CODE 4410–09–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

[Notice (09–092)] 

Performance Review Board, Senior 

Executive Service (SES) 

AGENCY: National Aeronautics and 

Space Administration (NASA). 

ACTION: Notice of Membership of SES 

Performance Review Board. 

SUMMARY: The Civil Service Reform Act 

of 1978, Public Law 95–454 (Section 

405) requires that appointments of 

individual members to a Performance 

Review Board (PRB) be published in the 

Federal Register. 

The performance review function for 

the SES in NASA is being performed by 

the NASA PRB and the NASA Senior 

Executive Committee. The latter 

performs this function for senior 

executives who report directly to the 

Administrator or the Deputy 

Administrator and members of the PRB. 

The following individuals are serving 

on the Board and the Committee: 

Performance Review Board 

Chairperson, Associate Administrator, 

NASA Headquarters. 

Executive Secretary, Director, Workforce 

Management and Development 

Division, NASA Headquarters. 

Associate Deputy Administrator, NASA 

Headquarters. 

Associate Administrator for Exploration 

Systems Mission Directorate, NASA 

Headquarters. 

Associate Administrator for Space 

Operations Mission Directorate, 

NASA Headquarters. 

Associate Administrator for Science 

Mission Directorate, NASA 

Headquarters. 

Associate Administrator for Aeronautics 

Research Mission Directorate, NASA 

Headquarters. 

Associate Administrator for Institutions 

and Management, NASA 

Headquarters. 

Assistant Administrator for Diversity 

and Equal Opportunity, NASA 

Headquarters. 

Assistant Administrator for Human 

Capital Management, NASA 

Headquarters. 

Associate Administrator for Program 

Analysis and Evaluation, NASA 

Headquarters. 

Chief Engineer, NASA Headquarters. 

General Counsel, NASA Headquarters. 

Director, Ames Research Center. 

Director, Dryden Flight Research Center. 

Director, Glenn Research Center. 

Director, Goddard Space Flight Center. 

Director, Johnson Space Center. 

Director, Kennedy Space Center. 

Director, Langley Research Center. 

Director, Marshall Space Flight Center. 

Director, Stennis Space Center. 

Senior Executive Committee 

Chairperson, Deputy Administrator, 

NASA Headquarters. 

Chair, Executive Resources Board, 

NASA Headquarters. 

Chair, NASA Performance Review 

Board, NASA Headquarters. 

Chief of Staff, NASA Headquarters. 

Associate Deputy Administrator, NASA 

Headquarters. 

Chief, Safety and Mission Assurance, 

NASA Headquarters. 

Charles F. Bolden, Jr., 

Administrator. 

[FR Doc. E9–25579 Filed 10–22–09; 8:45 am] 

BILLING CODE P 

NATIONAL SCIENCE FOUNDATION 

Proposal Review Panel for Materials 

Research; Notice of Meeting 

In accordance with the Federal 

Advisory Committee Act (Pub. L. 92– 

463 as amended), the National Science 

Foundation announces the following 

meeting: 

Name: Site visit review of the Materials 

Research Science and Engineering Center 

(MRSEC) at The Ohio State University by 

NSF Division of Materials Research (DMR) 

#1203. 

Date and Time: Friday, November 13, 

2009; 8:30 a.m.–4 p.m. 

Place: The Ohio State University, 

Columbus, OH. 

Type of Meeting: Part-open. 

Contact Person: Dr. Charles Ying, Program 

Director, Materials Research Science and 

Engineering Centers Program, Division of 

Materials Research, Room 1065, National 

Science Foundation, 4201 Wilson Boulevard, 

Arlington, VA 22230, Telephone (703) 292– 

8428. 

Purpose of Meeting: To provide advice and 

recommendations concerning progress of the 

MRSEC at The Ohio State University. 

Agenda: Friday, November 13, 2009 

8:30 a.m.–2 p.m. 

OPEN—Review of Ohio State University, 

MRSEC. 

2 p.m.–4 p.m. 

CLOSED—Executive Session. 

Reason for Closing: The work being 

reviewed may include information of a 

proprietary or confidential nature, including 

technical information; financial data, such as 

salaries and personal information concerning 

individuals associated with the proposals. 

These matters are exempt under 5 U.S.C. 

552b(c), (4) and (6) of the Government in the 

Sunshine Act. 

Dated: October 20, 2009. 

Susanne Bolton, 

Committee Management Officer. 

[FR Doc. E9–25504 Filed 10–22–09; 8:45 am] 

BILLING CODE 7555–01–P 

NATIONAL SCIENCE FOUNDATION 

Proposal Review Panel for Physics; 

Notice of Meeting 

In accordance with the Federal 

Advisory Committee Act (Pub. L. 92– 

463, as amended), the National Science 

Foundation announces the following 

meeting. 

Name: Proposal Review Panel for Physics, 

Stony Brook Site Visit in Physics (#1208). 

Date and Time: Thursday, November 19, 

2009; 8:30 a.m.–6:30 p.m. Friday, November 

20, 2009: 8:30 a.m.–1:00 p.m. 

Place: Room 1020, NSF, 4201 Wilson 

Blvd., Arlington, VA 22230. 

Type of Meeting: Partially Closed. 

Contact Person: Dr. David Lissauer, 

Program Director for Elementary Particle 

Physics, National Science Foundation, 4201 

Wilson Blvd., Arlington, VA 22230. 

Telephone: (703) 292–7061. 

Purpose of Meeting: To provide an 

evaluation concerning the proposal 

submitted to the National Science 

Foundation. 


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