83 FR 51982 - Phillip O. Rawlings, Jr., M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 199 (October 15, 2018)

[Federal Register Volume 83, Number 199 (Monday, October 15, 2018)]
[Notices]
[Pages 51982-51983]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-22421]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Phillip O. Rawlings, Jr., M.D.; Decision and Order

    On March 8, 2018, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Phillip O. Rawlings, Jr., M.D. (Registrant), of 
Mobile, Alabama. The Show Cause Order proposed the revocation of 
Registrant's DEA Certificate of Registration No. FR0024997 on the 
ground that he has ``no state authority to handle controlled 
substances.'' Order to Show Cause, Government Exhibit (GX) 8, at 1 
(citing 21 U.S.C. 824(a)(3)). For the same reason, the Order also 
proposed the denial of any of Registrant's ``applications for renewal 
or modification of such registration and any applications for any other 
DEA registrations.'' Id.
    Regarding the Agency's jurisdiction, the Show Cause Order alleged 
that Registrant holds DEA Certificate of Registration No. FR0024997, 
pursuant to which he is authorized to dispense controlled substances as 
a practitioner in schedules II through V at the registered address of 
Providence Family Physicians, 8833 Cottage Hill Road, Mobile, Alabama. 
Id. The Order also alleged that this registration was set to expire by 
its terms on April 30, 2018. Id.
    The substantive ground for the proceeding set forth in the Show 
Cause Order is that Registrant is ``currently without authority to 
practice medicine or handle controlled substances in the State of 
Alabama, the state in which [he is] registered with the DEA'' because 
Registrant's Alabama Medical License and Alabama Controlled Substances 
Certificate have been in ``Inactive-By Request'' status since December 
31, 2016 . Id. As a consequence, the Order alleged that ``DEA must 
revoke your DEA registration.'' Id. at 2.
    The Show Cause Order notified Registrant of his right to request a 
hearing on the allegations or to submit a written statement in lieu of 
a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. (citing 21 CFR 
1301.43). The Order also notified Registrant of the opportunity to 
submit a corrective action plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).
    On April 26, 2018, my office received the Government's Second 
Request for Final Agency Action (SRFAA) \1\ describing Diversion 
Investigators' attempts to serve the Show Cause Order and seeking a 
final order revoking Registrant's registration. SRFAA, at 2, 6. The 
Government also submitted a Certification of Registration History, 
which was sworn to on December 28, 2017 by the Associate Chief of the 
Registration and Program Support Section. GX 1. In that Certification, 
she stated that DEA Registration No. FR0024997 ``expires on April 30, 
2018.'' Id. at 1. The Associate Chief further stated that ``Phillip O. 
Rawlings, Jr., M.D., has no other pending or valid DEA registration(s) 
in Alabama.'' Id. According to the Agency's current registration 
records for Registrant, of which I take official notice,\2\ DEA 
Registration No. FR0024997 expired on April 30, 2018, and he has not 
submitted an application to renew his registration or for any other 
registration in the State of Alabama. Thus, I find that Registrant's 
registration expired on April 30, 2018, and that there is no 
application upon which to act.\3\
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    \1\ On January 10, 2018, the Government submitted a Request for 
Final Agency Action seeking to revoke Registrant's same DEA 
registration based on an October 31, 2017 Order to Show Cause. GX 6. 
In that Request, the Government represented that Registrant did not 
request a hearing and ``ha[d] not otherwise corresponded or 
communicated with DEA regarding the Order served on him . . . within 
30 days of receipt of the Order.'' Id. at 1-2. However, on February 
6, 2018, the then-Acting Administrator issued an Order noting that, 
``although the Government is clearly in possession of information 
suggesting that Registrant now lives in California, it has offered 
no explanation for why it did not attempt to obtain Registrant's 
address from the Board of Medical Examiners and serve Registrant at 
that address.'' GX 7, at 1. As a result, the then-Administrator 
denied the Government's Request for Final Agency Action without 
prejudice. Id. at 2. See also SRFAA, at 1-2. By that time, the 
December 26, 2017 hearing date listed in the 2017 Show Cause Order 
had passed. SRFAA, at 2 n.1. As a result, the Agency issued the 
pending Show Cause Order on March 8, 2018, with a new hearing date 
of April 24, 2018. Id.; GX 8, at 1. It is this new Show Cause Order 
for which the Government now seeks final agency action.
    \2\ 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, Registrant 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 Registrant the opportunity to refute the 
facts of which I take official notice, Registrant may file a motion 
for reconsideration within 15 calendar days of service of this order 
which shall commence on the date this order is mailed.
    \3\ As already noted, my Office received the Government's Second 
Request for Final Agency Action on April 26, 2018. This filing 
arrived in my office too late for me to issue a final decision and 
order before the registration would expire on April 30, 2018. DEA 
regulation 21 CFR 1316.67 requires that I issue a final order that 
takes effect not less than 30 days from the date of publication in 
the Federal Register unless the public interest necessitates an 
earlier effective date. The record before me fails to include facts 
supporting a finding that ``the public interest in the matter 
necessitates an earlier effective date.'' 21 CFR 1316.67. Thus, even 
if I had submitted a final order in this case to the Federal 
Register on the same day (April 26, 2018) that my office received 
the SRFAA to revoke Registrant's registration, I could not have 
issued an order that would have taken effect by April 30, 2018 
because the Federal Register would not have been able to publish it 
30 days before the registration's April 30, 2018 expiration. And as 
the Agency has previously noted, there is no point in issuing a 
ruling on a Show Cause Order where, as here, that ruling would 
constitute an advisory opinion subject to vacation on judicial 
review. See, e.g., Josip Pasic, M.D., 82 FR 24146, 24147 (2017) 
(``As the requested factual findings and legal conclusions would be 
subject to vacation on judicial review, there is no point in making 
them.'').
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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 Greg N. Rampey, D.O., 83 FR

[[Page 51983]]

42696, 42697 (2018). ``Moreover, in the absence of an application 
(whether timely filed or not), there is nothing to act upon.'' Reece, 
77 FR at 35055, Rampey, 83 FR at 42697. Accordingly, because Registrant 
has allowed his registration to expire and has not filed an application 
to renew his registration or for any other registration in Alabama, 
this case is now moot and will be dismissed.

Order

    Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by 
21 U.S.C. 824(a), I order that the Order to Show Cause issued to 
Phillip O. Rawlings, Jr., M.D., be, and it hereby is, dismissed. This 
Order is effective immediately.

    Dated: September 26, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-22421 Filed 10-12-18; 8:45 am]
 BILLING CODE 4410-09-P