Notice2025-10502
Serge Menkin, M.D.; Decision and Order
Primary source
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Published
June 10, 2025
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 90 Issue 110 (Tuesday, June 10, 2025)</title>
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[Federal Register Volume 90, Number 110 (Tuesday, June 10, 2025)]
[Notices]
[Pages 24414-24415]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-10502]
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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\
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\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).
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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).
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\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.
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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. Sec. 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, <a href="https://newjersey.mylicense.com/verification">https://newjersey.mylicense.com/verification</a> (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\
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\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 <a href="/cdn-cgi/l/email-protection#1b7f7e7a357a7f7f74357a6f6f7469757e62685b7f7e7a357c746d"><span class="__cf_email__" data-cfemail="492d2c2867282d2d2667283d3d263b272c303a092d2c28672e263f">[email protected]</span></a>.
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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. Sec. 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\
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\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.
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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,
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packaging, labeling, or compounding necessary to prepare the substance
for that delivery.'' Id. section 24:21-2.
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]
BILLING CODE 4410-09-P
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