80 FR 50042 - Drug Enforcement Administration

DEPARTMENT OF JUSTICE

Federal Register Volume 80, Issue 159 (August 18, 2015)

[Federal Register Volume 80, Number 159 (Tuesday, August 18, 2015)]
[Notices]
[Pages 50042-50043]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-20344]


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

 DEPARTMENT OF JUSTICE

[Docket No. 13-29]


Drug Enforcement Administration

Matthew Valentine/Liar Catchers; Order

    On April 5, 2013, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Matthew Valentine (hereinafter, Applicant), of Lexington, 
Kentucky. The Show Cause Order proposed the denial of Applicant's 
pending application for a DEA Certificate of Registration as a 
Researcher, which would authorize Applicant to possess and use 
controlled substances as a canine handler, on the ground that his 
registration would be inconsistent with the public interest. GX 1, at 1 
(citing 21 U.S.C. 823(f)).
    On April 29, 2013, Applicant, acting pro se, filed a request for a 
hearing with the DEA Office of Administrative Law Judges. GX 2. After 
the matter was assigned to an Administrative Law Judge (ALJ), Applicant 
submitted a letter in which he requested to withdraw his application. 
GX 3. Therein, Applicant stated that he was ``not in a position to 
fight this legal battle at this time.'' Id. A few weeks later, 
Applicant requested a stay until May 31, 2013, see GX 4, which was 
granted by the ALJ. See GX 5.
    Upon presentation of Applicant's withdrawal request to the Office 
of Diversion Control (OD), the latter advised Government Counsel that 
it would accept the request only if Applicant agreed not to reapply for 
three years. Request for Final Agency Action, at 3. Applicant rejected 
OD's offer. Id. Thereafter, OD made a subsequent offer that would have 
allowed Applicant to withdraw if he agreed not to reapply for two 
years. Id. Applicant also rejected this offer. Id.
    According to Government Counsel, on May 22, 2012, OD, ``without 
providing a basis for its decision,'' notified the former that it had 
rejected Applicant's withdrawal request and ``instructed Chief Counsel 
to take the matter to hearing.'' Id. The next day, Government Counsel 
notified the ALJ of OD's decision. The ALJ then vacated the stay and 
set the matter for hearing. GX 7, at 1-2.
    On May 29, 2013, Applicant submitted a request to waive his right 
to a hearing and submitted various documents in support of his 
application. GX 8. The ALJ then ordered that the proceeding be 
terminated. GX 9. Thereafter, on October 29, 2013, the Government 
submitted a Request for Final Agency Action. Req. for Final Agency 
Action, at 15. Therein, the Government sought the denial of Applicant's 
application. Id. at 1.
    Upon review, the then-Administrator denied the Government's 
request. Order of the Administrator, at 3 (May 2, 2015) (hereinafter, 
Order). The then-Administrator specifically explained that under a DEA 
regulation, ```[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. at 2 (quoting 21 CFR 1301.16(a)). The then-
Administrator also relied on section 555(e) of the Administrative 
Procedure Act, which provides that:

    Prompt notice shall be given of the denial in whole or in part 
of a written application, petition, or other request of an 
interested person made in connection with any agency proceedings. 
Except in affirming a prior denial or when the denial is self-
explanatory, the notice shall be accompanied by a brief statement of 
the grounds for denial.

5 U.S.C. 555(e) (quoted in Order, at 2).

    Based on the plain language of section 555(e), the then-
Administrator held that Applicant's withdrawal request clearly was a 
``request of an interested person made in connection with [an] agency 
proceeding.'' Order, at 2. She further noted that the grounds for 
denying Applicant's withdrawal request were not ``self-explanatory,'' 
and were, in fact, ``totally unknown.'' Id. Accordingly, the then-
Administrator held that the Office of Diversion Control was required to 
provide Applicant with a `` `notice,' '' which was `` `accompanied by a 
brief statement of the grounds for

[[Page 50043]]

denial' '' of his withdrawal request. Id. at 3 (quoting 5 U.S.C. 
555(e)).
    Because the Office of Diversion Control had not complied with 
section 555(e), the then-Administrator denied the Government's Request 
for Final Agency Action. Id. The then-Administrator returned the record 
to the Government's Counsel, with the instruction that its Request 
should not be re-submitted until such time as the Office of Diversion 
Control complied with 5 U.S.C. 555(e) and explained why Applicant has 
not demonstrated good cause to withdraw his application, as well as why 
the withdrawal is not in the public interest. Id.
    On August 7, 2015, Government Counsel filed a Request for Dismissal 
of Order to Show Cause. Therein, Government Counsel represents that on 
July 30, 3015, the Office of Diversion Control had decided to allow 
Respondent to withdraw his application. The Government therefore 
requests an Order dismissing the Show Cause Order.
    Because the Office of Diversion Control has granted Respondent's 
withdrawal request, there is no longer an application to act upon and 
the case is now moot. See Thomas E. Mitchell, 76 FR 20032, 20033 
(2011). Accordingly, I grant the Government's Request and dismiss the 
Order to Show Cause.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as 28 CFR 0.100(b), I order that the Order to Show Cause issued to 
Matthew Valentine/Liar Catchers be, and it hereby is, dismissed. This 
Order is effective immediately.

    Dated: August 10, 2015.
Chuck Rosenberg,
Acting-Administrator.
[FR Doc. 2015-20344 Filed 8-17-15; 8:45 am]
 BILLING CODE 4410-09-P