90 FR 110 pgs. 24414-24415 - Serge Menkin, M.D.; Decision and Order
Type: NOTICEVolume: 90Number: 110Pages: 24414 - 24415
Pages: 24414, 24415FR document: [FR Doc. 2025-10502 Filed 6-9-25; 8:45 am]
Agency: Justice Department
Sub Agency: Drug Enforcement Administration
Official PDF Version: PDF Version
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Serge Menkin, M.D.; Decision and Order
On October 15, 2024, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Serge Menkin, M.D., of Holmdel, New Jersey (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 1, at 1, 3. The OSC proposed the revocation of Registrant's Certificate of Registration No. BM8723795, alleging that Registrant's registration should be revoked because Registrant is "currently without authority to handle controlled substances in New Jersey, the state in which [he is] registered with DEA." Id. at 2 (citing 21 U.S.C. 824(a)(3)). 1
Footnotes:
1 ?According to Agency records, Registrant's registration expired on January 31, 2025. The fact that a registrant allows his registration to expire during the pendency of an OSC does not impact the Agency's jurisdiction or prerogative under the Controlled Substances Act (CSA) to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 68474, 68476-79 (2019).
The OSC notified Registrant of his right to file a written request for hearing, and that if he failed to file such a request, he would be deemed to have waived his right to a hearing and be in default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request a hearing. RFAA, at 2. 2 "A default, unless excused, shall be deemed to constitute a waiver of the [registrant's] right to a hearing and an admission of the factual allegations of the [OSC]." 21 CFR 1301.43(e).
Footnotes:
2 ?Based on the Government's submissions in its RFAA dated December 10, 2024, the Agency finds that service of the OSC on Registrant was adequate. Specifically, the included signed DEA-12 Form indicates that on October 17, 2024, Registrant was personally served with the OSC by a DEA Diversion Investigator. RFAAX 2.
Further, "[i]n the event that a registrant . . . is deemed to be in default . . . DEA may then file a request for final agency action with the Administrator, along with a record to support its request. In such circumstances, the Administrator may enter a default final order pursuant to [21 CFR]?1316.67." Id. §?1301.43(f)(1). Here, the Government has requested final agency action based on Registrant's default, pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 2; see also 21 CFR 1316.67.
Findings of Fact
The Agency finds that, in light of Registrant's default, the factual allegations in the OSC are admitted. According to the OSC, on July 9, 2024, the New Jersey State Board of Medical Examiners suspended Registrant's New Jersey medical license. RFAAX 1, at 1-2. Further, according to the OSC, Registrant's New Jersey controlled dangerous substance license is inactive. Id. at 1.
According to New Jersey online records, of which the Agency takes official notice, Registrant's New Jersey medical license is currently active, but Registrant's New Jersey controlled dangerous substance license currently remains inactive. 3 New Jersey Division of Consumer Affairs License Verification, https://newjersey.mylicense.com/verification (last visited date of signature of this Order). Accordingly, the Agency finds that while Registrant is licensed to practice medicine in New Jersey, the state in which he is registered with DEA, Registrant is not licensed to handle controlled substances in New Jersey. 4
Footnotes:
3 ?Under the Administrative Procedure Act, an agency "may take official notice of facts at any stage in a proceeding-even in the final decision." United States Department of Justice, Attorney General's Manual on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979).
4 ?Pursuant to 5 U.S.C. 556(e), "[w]hen an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary." The material fact here is that Registrant, as of the date of this decision, is not licensed to handle controlled substances in New Jersey. Accordingly, Registrant may dispute the Agency's finding this fact by filing a properly supported motion for reconsideration of findings of fact within fifteen calendar days of the date of this Order. Any such motion and response shall be filed and served by email to the other party and to the DEA Office of the Administrator, Drug Enforcement Administration at dea.addo.attorneys@dea.gov .
Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under 21 U.S.C. 823 "upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances." With respect to a practitioner, DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration. Gonzales v. Oregon, 546 U.S. 243, 270 (2006) ("The Attorney General can register a physician to dispense controlled substances `if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.' . . . The very definition of a `practitioner' eligible to prescribe includes physicians `licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices' to dispense controlled substances. §?802(21)."). The Agency has applied these principles consistently. See, e.g., James L. Hooper, M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978). 5
Footnotes:
5 ?This rule derives from the text of two provisions of the CSA. First, Congress defined the term "practitioner" to mean "a physician . . . or other person licensed, registered, or otherwise permitted, by . . . the jurisdiction in which he practices . . ., to distribute, dispense, . . . [or] administer . . . a controlled substance in the course of professional practice." 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that "[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices." 21 U.S.C. 823(g)(1). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, DEA has held repeatedly that revocation of a practitioner's registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the state in which he practices. See, e.g., James L. Hooper, M.D., 76 FR 71371-72; Sheran Arden Yeats, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, M.D., 43 FR 27617.
[top] According to New Jersey statute, "[e]very person who manufactures, distributes, or dispenses any controlled dangerous substance within this State or who proposes to engage in the manufacture, distribution, or dispensing of any controlled dangerous substance within this State, shall obtain a registration issued by the [Division of Consumer Affairs] in accordance with rules and regulations promulgated by it." N.J. Rev. Stat. section 24:21-10(a) (2025). Further, "dispense" means "to deliver a controlled dangerous substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering,
Here, the undisputed evidence in the record is that Registrant currently lacks authority to dispense controlled substances in New Jersey because Registrant's New Jersey controlled dangerous substance license is inactive. As discussed above, an individual must hold a New Jersey controlled dangerous substance license to dispense a controlled substance in New Jersey. Thus, because Registrant lacks authority to handle controlled substances in New Jersey, Registrant is not eligible to maintain a DEA registration. Accordingly, the Agency will order that Registrant's DEA registration be revoked.
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. BM8723795 issued to Serge Menkin, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny any pending applications of Serge Menkin, M.D., to renew or modify this registration, as well as any other pending application of Serge Menkin, M.D., for additional registration in New Jersey. This Order is effective July 10, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed on June 3, 2025, by Acting Administrator Robert J. Murphy. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .
Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2025-10502 Filed 6-9-25; 8:45 am]
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