[Federal Register Volume 63, Number 45 (Monday, March 9, 1998)]
[Notices]
[Pages 11453-11454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5997]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 98-6]


Nora Brayshaw, M.D.; Revocation of Registration

    On October 7, 1997, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Nora Brayshaw, M.D. (Respondent), of Sausalito, 
California. The Order to Show Cause notified her of an opportunity to 
show cause as to why DEA should not revoke her DEA Certificate of 
Registration AB9072618, and deny any pending applications for renewal 
of such registration pursuant to 823(f) and 824, for reason that she is 
not currently authorized to handle controlled substances in the State 
of California.
    By letter dated November 8, 1997, Respondent, through counsel, 
filed a request for a hearing, and the matter was docketed before 
Administrative Law Judge Mary Ellen Bittner. On November 18, 1997, 
Judge Bittner issued an Order for Prehearing Statements. On November 
20, 1997, the Government filed a Motion for Summary Disposition, 
alleging that effective January 16, 1997, the Medical Board of 
California (Board) revoked Respondent's license to practice medicine in 
California and therefore, she is not authorized to handle controlled 
substances in that state. Respondent submitted a response dated 
December 8, 1997, to the Government's motion, arguing that the 
revocation by the Board is under review, and therefore is not a final 
decision. Respondent further agreed that no action should be taken by 
DEA ``until the California matter is final.''
    On January 6, 1998, Judge Bittner issued her Opinion and 
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision, 
finding that Respondent lacked authorization to handle controlled 
substances in the State of California; granting the Government's Motion 
for Summary Disposition; and recommending that Respondent's DEA 
Certificate of Registration be revoked. Neither party filed exceptions 
to her opinion, and on February 9, 1998, Judge Bittner transmitted the 
record of these proceedings to the Acting Deputy Administrator.
    The Acting Deputy Administrator has considered the record in its 
entirety, and pursuant to 21 CFR 1316.67, hereby issues his final order 
based upon findings of fact and conclusions of law as hereinafter set 
forth. The Acting Deputy Administrator adopts, in full, the Opinion and 
Recommended Ruling, Findings of Fact, Conclusions of Law and Decision 
of the Administrative Law Judge.
    The Acting Deputy Administrator finds that by a Decision effective 
January 16, 1997, the Board adopted the proposed decision of an 
Administrative Law Judge of the Board recommending the revocation of 
Respondent's license to practice medicine in the State of California. 
Respondent argues that her DEA registration should not be revoked

[[Page 11454]]

at this time because she has filed a Petition for writ of Mandate to 
Set Aside Order Imposing Discipline, and she expects that the Board's 
decision will be set aside and her medical license will be reinstated. 
However, the Acting Deputy Administrator further finds that Respondent 
did not offer any evidence that the Board's revocation was stayed 
pending review, nor did she deny that she is not currently authorized 
to handle controlled substances in California. Therefore, the Acting 
Deputy Administrator concludes that Respondent is not currently 
authorized to practice medicine in the State of California.
    The DEA does not have statutory authority under the Controlled 
Substances Act to issue or maintain a registration if the applicant or 
registrant is without state authority to handle controlled substances 
in the state in which she conducts her business. 21 U.S.C. 802(21), 
823(f) and 824(a)(3). This prerequisite has been consistently upheld. 
See Romeo J. Perez, M.D., 62 FR 16,193 (1997); Dermetris A. Green, 
M.D., 61 FR 60,728 (1996); Dominick A. Ricci, M.D., 58 FR 51,104 
(1993).
    Here it is clear that Respondent is not licensed to practice 
medicine in California. Consequently, it is reasonable to infer that 
she is not authorized to handle controlled substances in California, 
where she is registered with DEA. Since Respondent lacks this state 
authority, she is not entitled to a DEA registration in that state.
    In light of the above, Judge Bittner properly granted the 
Government's Motion for Summary Disposition. Here, the parties did not 
dispute the fact that Respondent was unauthorized to handle controlled 
substances in California. Therefore, it is well-settled that when no 
question of material fact is involved, a plenary, adversary 
administrative proceeding involving evidence and cross-examination of 
witnesses is not obligatory. See Phillip E. Kirk, M.D., 48 FR 32,887 
(1983), aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); 
NLRB v. International Association of Bridge, Structural and Ornamental 
Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977); United States v. 
Consolidated Mines & Smelting Co., 44 F.2d 432 (9th Cir. 1971).
    Accordingly, the Acting Deputy Administrator of the Drug 
Enforcement Administration, pursuant to the authority vested in him by 
21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that 
DEA Certificate of Registration AB9072618, previously issued to Nora 
Brayshaw, M.D., be, and it hereby is, revoked. The Acting Deputy 
Administrator further orders that any pending applications for renewal 
of such registration be, and they hereby are, denied. This order is 
effective April 8, 1998.

    Dated: March 3, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-5997 Filed 3-6-98; 8:45 am]
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