[Federal Register Volume 64, Number 62 (Thursday, April 1, 1999)]
[Notices]
[Pages 15811-15812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7930]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 98-25]


George Thomas, PA-C Denial of Application

    On March 19, 1998, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA) issued an 
Order to Show Cause to George Thomas, PA-C (Respondent) of Richland, 
Washington. The Order to Show Cause notified him of an opportunity to 
show cause as to why DEA should not deny his application for 
registration as a mid-level practitioner pursuant to 21 U.S.C. 823(f) 
and 824(a)(3), for reason that his registration would be inconsistent 
with the public interest and that he is not currently authorized to 
handle controlled substances in the State of Washington.
    By letter dated April 13, 1998, Respondent filed a request for a 
hearing and the matter was docketed before Administrative Law Judge 
Gail A. Randall. On April 20, 1998, Judge Randall issued an Order for 
Prehearing Statements. In lieu of filing a prehearing statement, the 
Government filed a Motion for Summary Disposition on May 5, 1998, 
alleging that Respondent was not authorized to handle controlled 
substances in the State of Washington and therefore DEA cannot issue 
him a registration in that state. Respondent

[[Page 15812]]

did not reply to the Government's motion.
    On May 27, 1998, Judge Randall issued an Order denying the 
Government's motion. In doing so, Judge Randall agreed with the 
Government that DEA lacks authority to register a practitioner who is 
not authorized to handle controlled substances in the state in which he 
practices. However, Judge Randall found that the Government had not met 
its burden of proof for summary disposition since the Government failed 
to file a copy of Respondent's application or any other evidence 
indicating that Respondent had applied to be registered by DEA in the 
State of Washington. Thereafter, on June 9, 1998, the Government filed 
a Motion for Reconsideration of Summary Disposition Motion, arguing 
that it had met its burden of proof, but nonetheless attaching a copy 
of Respondent's application which reflected an address in Richland, 
Washington.
    Respondent filed a response to the Government's motion on June 26, 
1998. In his response, Respondent made three requests: (1) to withdraw 
the DEA application dated January 16, 1997; (2) that future 
applications be processed in an expedient and timely manner; and (3) 
that a future application will be handled favorably, as long as the 
Respondent holds the appropriate state license. On July 13, 1998, the 
Government contended that pursuant to 21 CFR 1301.16(a) and 28 CFR 
0.100 and 0.104, Judge Randall lacked jurisdiction to grant 
Respondent's request to withdraw his pending application. In a 
footnote, the Government indicated that Respondent's request to 
withdraw his application had been forwarded to the DEA Deputy Assistnt 
Administrator, Office of Diversion Control.
    On July 23, 1998, Judge Randall issued her Opinion and Recommended 
Ruling, concluding that she lacked jurisdiction to grant Respondent's 
request to withdraw his application; finding that Respondent lacked 
authorization to handle controlled substances in the State of 
Washington; granting the Government's Motion for Summary Disposition; 
and recommending that Respondent's application for registration be 
denied. Neither party filed exceptions to her opinion, and on September 
1, 1998, Judge Randall transmitted the record of these proceedings to 
the Acting Deputy Administrator.
    In a letter dated January 5, 1999 to DEA's Chief Counsel, the 
Deputy Administrator sought clarification regarding the status of 
Respondents application in light of Government counsel's representation 
that Respondent's request to withdraw his application had been 
forwarded to the DEA Deputy Assistant Administrator, Office of 
Diversion Control for a decision. The Deputy Administrator reasoned 
that if Respondent's request to withdraw his application had been 
granted then there is no application to deny and these proceedings are 
moot. By letter dated February 22, 1999, DEA's Chief Counsel indicated 
that Respondent's request to withdraw his application was denied and 
attached a copy of the August 12, 1998 letter from DEA's Deputy 
Assistant Administrator, Office of Diversion Control denying 
Respondent's request.
    The 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 Deputy Administrator, adopts in full, the Opinion and Recommended 
Ruling of the Administrative Law Judge.
    The Deputy Administrator finds that effective on or about October 
5, 1997, Respondent entered into an Agreed Order with the State of 
Washington, Department of Health, Medical Quality Assurance Commission. 
As part of the Agreed Order, Respondent agreed that he shall not order, 
prescribe or dispense controlled substances. Based upon the evidence in 
the record this Agreed Order is still in effect and Respondent does not 
dispute that he is without authority to handle controlled substances in 
the State of Washington.
    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 he conducts his 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 16193 (1997); Demetris A. Green M.D., 
61 FR 60728 (1996); Dominick A. Ricci, M.D., 58 FR 51104 (1993).
    Here it is clear tht Respondent is not authorized to handle 
controlled substances in Washington. Therefore, he is not entitled to a 
DEA registration in that state.
    The Deputy Administrator further finds that in light of the above, 
Judge Randall properly granted the Government's Motion for Summary 
Disposition. It is well settled that when no question of material fact 
is involved, or when the facts are agreed upon, there is no need for a 
plenary, administrative hearing. Congress did not intend for 
administrative agencies to perform meaningless tasks. See Gilbert Ross, 
M.D., 61 FR 8664 (1996); Philip E. Kirk, M.D., 48 FR 32887 (1983), 
aff'd sub nom Kirk v. Mullen, 749 F. 2d 297 (6th Cir. 1984). Here, 
there is no dispute that Respondent currently lacks state authority to 
handle controlled substances in Washington, where he has requested to 
be registered with DEA.
    Accordingly, the 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 the 
application for a DEA Certificate of Registration submitted by George 
Thomas, PA-C, be, and it hereby is, denied. This order is effective May 
3, 1999.

    Dated: March 15, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-7930 Filed 3-31-99; 8:45 am]
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