[Federal Register Volume 67, Number 186 (Wednesday, September 25, 2002)]
[Notices]
[Pages 60258-60259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24276]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 02-17]


Philip Washburn, M.D., Denial of Application

    On November 8, 2001, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Philip Washburn, M.D. (Respondent), proposing to 
deny his pending application for DEA Certificate of Registration 
pursuant to 21 U.S.C. 824(a)(3). As a basis for the denial of his 
pending application, the Order to Show Cause alleged that the 
Respondent is not currently authorized to handle controlled substances 
in the State of Utah.
    By letter dated December 8, 2001, the Respondent acting pro se, 
requested a hearing in this matter. On January 31, 2002, the Government 
filed Government's Motion for Summary Disposition, and further 
requested a stay of the proceedings pending a ruling on

[[Page 60259]]

its summary disposition motion. On February 4, 2002, the presiding 
Administrative Law Judge Gail A. Randall (Judge Randall) issued an 
Order allowing the Respondent to file a response to the Government's 
Motion no later than February 22, 2002. Subsequently, the Respondent 
was granted an extension of time until April 8, 2002, to file a 
response to the Government's Motion. Despite the extension afforded by 
Judge Randall, the Respondent again did not file a response to the 
Government's motion.
    On April 25, 2002, Judge Randall issued her Ruling, Opinion and 
Recommended Decision of the Administrative Law Judge (Opinion and 
Recommended Decision) in which she granted the Government's Motion for 
Summary Disposition and found that the Respondent lacks authorization 
to handle controlled substances in the State of Utah. Neither party 
filed exceptions to her Opinion and Recommended Decision, and of June 
4, 2002, Judge Randall transmitted the record of these proceedings to 
the Office of the Deputy Administrator.
    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 Ruling, Opinion and 
Recommended Decision of the Administrative Law Judge.
    The Deputy Administrator finds that on June 18, 1996, the 
Respondent entered into a Stipulation and Order with the Division of 
Occupational & Professional Licensing, Department of Commerce for the 
State of Utah (DOPL). Among the terms and conditions entered into by 
the parties, the Respondent agreed to the surrender of his state 
controlled substance license. The Respondent further agreed that he 
would not reapply for a controlled substance license in the future. On 
August 3, 2001, DEA received from the Respondent an application for DEA 
Certificate of Registration as a practitioner.
    There is no evidence before the Deputy Administrator that the 
Respondent's state controlled substance license has been restored. In 
her Opinion and Recommended Decision, Judge Randall found that the 
Respondent lacks state authority in Utah to handle controlled 
substances, and is not entitled to a DEA registration for that state. 
Therefore, the Deputy Administrator similarly finds that the Respondent 
is not currently authorized to handle controlled substances in the 
State of Utah.
    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 business. See 21 U.S.C. 802(21), 
823(f) and 824(a)(3). This prerequisite has been consistently upheld. 
See Carla Johnson, M.D., 66 FR 52939 (2001); Graham Travers Schuler, 
M.D., 65 FR 50570 (2000); Demetris A. Green, M.D., 61 FR 60,728 (1996).
    In the instant case, the Deputy Administrator finds the Government 
has presented evidence demonstrating that the Respondent is not 
authorized to handle controlled substances in the state in which he 
seeks a DEA registration. The Deputy Administrator also finds that 
Judge Randall provided the Respondent ample opportunity to refute the 
Government's contentions, however, the Respondent has provided no 
evidence or assertions to the contrary. Here, it is clear that the 
Respondent is not authorized to handle controlled substances in Utah. 
Since Respondent lacks such authority, he is not entitled to a DEA 
registration in that state.
    In light of the above, Judge Randall properly granted the 
Government's Motion for Summary Disposition. The parties do not dispute 
the fact that Respondent is currently without authorization to handle 
controlled substances in Utah. 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 Gilbert Ross, M.D., 61 FR 8664 (1996); 
Philip 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).
    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 DEA Certificate of Registration submitted by Philip 
Washburn, M.D. be, and it hereby is, denied. This order is effective 
October 25, 2002.

    Dated: September 12, 2002.
John B. Brown III,
Deputy Administrator.
[FR Doc. 02-24276 Filed 9-24-02; 8:45 am]
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