83 FR 22518 - Donald Kenneth Shreves, D.V.M.; Dismissal of Proceeding

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 94 (May 15, 2018)

[Federal Register Volume 83, Number 94 (Tuesday, May 15, 2018)]
[Notices]
[Page 22518]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-10305]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[No. 18-12]


Donald Kenneth Shreves, D.V.M.; Dismissal of Proceeding

    On October 31, 2017, the Acting Assistant Administrator, Diversion 
Control Division, issued an Order to Show Cause to Donald Kenneth 
Shreves, D.V.M. (Respondent), of Pottstown, Pennsylvania. The Show 
Cause Order proposed the revocation of Respondent's Certificate of 
Registration on the ground that he does ``not have authority to handle 
controlled substances in the State of Pennsylvania, the [S]tate in 
which [he is] registered with the'' Agency. Show Cause Order, at 1.
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Respondent is registered ``as a practitioner in 
[s]chedules II-V under . . . registration number BS5342934,'' at the 
location of ``1361C Farmington Ave., Pottstown, Pennsylvania.'' Id. The 
Order further alleged that Respondent's registration was due to expire 
on February 28, 2018. Id.
    As the substantive ground for the proceeding, the Show Cause Order 
alleged that on September 28, 2017, the Pennsylvania Board of 
Veterinary Medicine ``issued an Order of Temporary Suspension'' of his 
veterinary medicine license. Id. at 1-2. The Order alleged that as a 
consequence of the Board's action, Respondent is currently ``without to 
handle controlled substances in . . . Pennsylvania, the [S]tate in 
which'' he is registered, and therefore, his registration should be 
revoked. Id. at 2.
    The Show Cause Order notified Respondent of his right to request a 
hearing or to submit a written statement while waiving his right to a 
hearing, the procedure for electing either option, and the consequence 
of failing to elect either option. Id. at 2 (citing 21 CFR 1301.43). 
The Order also notified Respondent of his right to submit a corrective 
action plan. Id. at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
    On November 8, 2017, Respondent was personally served with the Show 
Cause Order, and on December 8, 2018, Respondent requested a hearing. 
Resp. Hrng. Req. at 1. The matter was placed on the docket of the 
Office of Administrative Law Judges and assigned to ALJ Charles Wm. 
Dorman, who, on December 11, 2017, issued an order setting the briefing 
schedule. See Briefing Schedule for Lack of State Authority 
Allegations, at 1.
    On January 4, 2018, the Government submitted a Motion for Summary 
Disposition; as support for its motion, the Government attached a copy 
of the Board's Suspension Order and a Declaration of a DEA Task Force 
Office that Respondent's Veterinary License remained suspended as of 
January 2, 2017, when she queried the Board's website. Mot. for Summ. 
Disp., Attachments 3; 5; 6, at 2. On January 10, 2018, Respondent filed 
his reply and admitted that he was currently without authority to 
handle controlled substances in Pennsylvania. Resp.'s Reply to Govt. 
Mot. for Summ. Disp., at 1.
    On January 11, 2018, the ALJ issued his Recommended Decision 
(R.D.). Therein, the ALJ found that there was no dispute over the 
material fact that Respondent lacks authority to dispense controlled 
substances in Pennsylvania. Id. at 5-6. The ALJ thus granted the 
Government's Motion for Summary Disposition and recommended that 
Respondent's registration be revoked. Id.
    Neither party filed exceptions to the Recommended Decision. On 
February 6, 2018, the ALJ forwarded the record to my Office.
    Having reviewed the record, I hold that this proceeding is now 
moot. The evidence in the record establishes that Respondent's 
registration was due to expire on February 28, 2018, and according to 
the Agency's registration record for Respondent of which I take 
official notice,\1\ he has not submitted an application to renew his 
registration. Accordingly, I find that Respondent's registration 
expired on February 28, 2018 and that there is no application to act 
upon.
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    \1\ Under the Administrative Procedure Act (APA), an agency 
``may take official notice of facts at any stage in a proceeding--
even in the final decision.'' U.S. Dept. of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and 
DEA's regulations, Respondent is ``entitled on timely request to an 
opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21 
CFR 1316.59(e). To allow Respondent the opportunity to refute the 
facts of which I take official notice, Respondent may file a motion 
for reconsideration within fifteen calendar days of service of this 
order which shall commence on the date this order is mailed.
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    DEA has long 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.' '' Donald Brooks 
Reece II, M.D., 77 FR 35054, 35055 (2012) (quoting Ronald J. Riegel, 63 
FR 67312, 67133 (1998)); see also Thomas E. Mitchell, 76 FR 20032, 
20033 (2011). ``Moreover, in the absence of an application (whether 
timely filed or not), there is nothing to act upon.'' Reece, 77 FR at 
35055. Accordingly, because Respondent has allowed his registration to 
expire and did not file an application to renew his registration or for 
any other registration in Pennsylvania, this case is now moot and will 
be dismissed.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that the Order to Show Cause issued to 
Donald K. Shreves, D.V.M., be, and it hereby is, dismissed. This Order 
is effective immediately.

    Dated: May 7, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-10305 Filed 5-14-18; 8:45 am]
 BILLING CODE 4410-09-P