01-26176. Carla Johnson, M.D.; Denial of Application

On March 21, 2000, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to Carla M. Johnson, M.D., (Respondent) notifying her of an opportunity to show cause as to why the DEA should not deny her application for DEA registration, pursuant to 21 U.S.C. 823(f), for reason that Respondent's registration would be inconsistent with the public interest. On May 8, 2000, Respondent filed a request for a hearing in this matter.

On August 10, 2000, the Government filed a Motion for Summary Disposition, asserting that Respondent is not currently authorized to handle controlled substances in the state in which she seeks a DEA Certificate of Registration, and attached a copy of an opinion from the Louisiana State Medical Board dated July 12, 2000, suspending Respondent's license to practice medicine in that State. On August 14, 2000, Administrative Law Judge Mary Ellen Bittner issued a memorandum to Counsel granting Respondent until August 29, 2000, to file a response to the Government's motion. As of this date, Respondent has failed to respond to the Government's motion.

The 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 Administrator adopts in full the Opinion and Recommended Decision of the Administrative Law Judge.

The DEA does not have the statutory authority pursuant to the Controlled Substances Act to issue or to maintain a registration if the applicant or registrant is without state authority to handle controlled substances in the state in which he or she practices. See 21 U.S.C. 802(21), 823(f), and 824(a)(3). This prerequisite has been consistently upheld in prior DEA cases. See Graham Travers Schuler, M.D., 65 FR 50570 (2000); 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).

In the instant case, the Administrator finds the Government has presented evidence demonstrating that the Respondent is not authorized to practice medicine in Louisiana, and therefore, the Administrator infers that Respondent is also not authorized to handle controlled substances in Louisiana, the State in which she seeks to obtain a DEA registration. The Administrator finds that Judge Bittner allowed Respondent ample time to refute the Government's evidence, and that Respondent has submitted no evidence or assertions to the contrary. Thus, there is no genuine issue of material fact concerning Respondent's lack of authorization to practice medicine in Louisiana or to handle controlled substances in that State.

The Administrator concurs with Judge Bittner's finding that it is well settled that when there is no question of material fact involved, there is no need for a plenary, administrative hearing. Congress did not intend for administrative agencies to perform meaning less tasks. See Michael G. Dolin, M.D., 65 FR 5661 (2001); Jesus R. Juarez, M.D., 62 FR 14945 (1997); see also Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).

Accordingly, the 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 Carla M. Johnson, M.D., be, and it hereby is, denied. This order is effective November 19, 2001.

Dated: October 10, 2001.

Asa Hutchinson,

Administrator.