Muzaffer Aslan, M.D.; Decision and Order, 37068-37070 [2012-15061]

Download as PDF mstockstill on DSK4VPTVN1PROD with NOTICES 37068 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Notices the Commission has determined to reverse the ALJ’s finding of violation of section 337 by the ’674 patent and affirm, with modifications, the findings of no violation of section 337 as to the ’006, ’063 and ’566 patents. Specifically, the Commission finds that the asserted claims of the ‘674 patent are infringed by respondents CMI, Qsida, and BenQ, and that respondents have shown that claims 1, 7, 8, 14, 16, 17, and 18 of the ’674 patent are anticipated by Fujitsu and that claims 9, 11, and 13 are obvious in view of Fujitsu and the knowledge of one of ordinary skill in the art. The Commission also finds that (a) Respondents do not infringe the asserted claims of the ’006 patent; (b) Scheuble does not anticipate claims 4 and 7 of the ’006 patent; (c) respondent AUO, Qsida, and BenQ infringe claims 11, 12, 14, 17, and 18, but not the remaining asserted claims of the ’063 patent; (d) respondent CMI does not infringe the asserted claims of the ’063 patent; (e) the ’063 patent are obvious in view of Sugata and Tsuboyama; (f) Lowe and Miyazaki are prior art to claims 1– 4 and 8 of the ’063 patent, but not the remaining asserted claims of the ’063 patent; (g) respondents have not shown that Lowe anticipates the asserted claims of the ’063 patent; (h) Miyazaki anticipates claims 11, 12, 14, 17, and 18 of the ’063 patent, but not any of the remaining asserted claims of the ’063 patent; (i) respondents have not shown that claim 3 of the ’556 patent is obvious in view of Takizawa and Possin; and (j) complainant satisfied the economic prong of the domestic industry requirement under 19 U.S.C. 1337(a)(3)(C). Therefore, the investigation is terminated with a finding of no violation as to the ’006, ’063, ’556 and ’674 patents. With respect to the ’941 patent, the Commission affirms that (a) respondents do not infringe the asserted claims of the ‘941 patent; and (b) respondents have not shown that the asserted claims of the ‘941 patent are obvious in view of Baba. The Commission reverses the ALJ’s ruling to exclude from the record evidence of the ViewFrame II+2 prior art, and remands to the ALJ to decide whether the ViewFrame II+2 anticipates the asserted claims of the ’941 patent (the Commission notes that this patent expires on August 26, 2012). The authority for the Commission’s determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42–46 and 210.50 of the Commission’s Rules of Practice and Procedure (19 CFR 210.42–46 and 210.50). VerDate Mar<15>2010 16:14 Jun 19, 2012 Jkt 226001 By order of the Commission. Issued: June 14, 2012. Lisa Barton, Acting Secretary to the Commission. [FR Doc. 2012–15005 Filed 6–19–12; 8:45 am] BILLING CODE 7020–02–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Muzaffer Aslan, M.D.; Decision and Order On December 14, 2011, I, the Administrator of the Drug Enforcement Administration, issued an Order to Show Cause and Immediate Suspension of Registration to Muzaffer Aslan, M.D. (hereinafter, Respondent), of Los Angeles, California. GX 2. The Show Cause Order proposed the revocation of Respondent’s DEA Certificate of Registration AA0044040, which authorizes him to dispense controlled substances as a practitioner, on the ground that Respondent does not possess authority under the laws of the State of California, the State in which he is registered with DEA, to dispense controlled substances. Id. at 1 (citing 21 U.S.C. 824(a)(3)). The Order further proposed the denial of any applications to renew or modify Respondent’s registration, as well as for any additional registration, on the ground that his ‘‘continued registration is inconsistent with the public interest.’’ Id. (citing 21 U.S.C. 823(f)). The Show Cause Order specifically alleged that on December 2, 2010, the Medical Board of California had revoked Respondent’s State medical license and that the Board had found, inter alia, that Respondent had, on multiple occasions, prescribed controlled substances ‘‘without performing a prior good faith examination.’’ Id. at 1–2. The Order thus alleged that Respondent is currently without authority to handle controlled substances in California. Id. at 2. The Show Cause Order further alleged that notwithstanding that Respondent is ‘‘prohibited from practicing medicine in * * * California,’’ he has continued to prescribe controlled substances as evidenced by data from the State’s prescription monitoring program. Id. Based on the forgoing, I concluded that Respondent’s continued registration during the pendency of the proceedings would constitute an ‘‘imminent danger to the public health and safety.’’ Id. (citing 21 U.S.C. 824(a)(4)). I therefore authorized the immediate suspension of Respondent’s registration. Id. On or about December 15, 2011, a DEA Diversion Investigator personally PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 served the Order on Respondent by hand-delivering a copy to his residence.1 GX 7, at 2. The DI also mailed a copy of the Order to Respondent. Id. On December 28, 2011, Respondent submitted a letter to the Hearing Clerk, Office of Administrative Law Judges. GX 3. Therein, Respondent stated that he was waiving his right to a hearing but submitting a written statement of his position regarding the allegations. GX 3. Pursuant to 21 CFR 1301.43(c), Respondent’s statement has been made a part of the record of this proceeding and has been considered in this decision. On February 7, 2012, the Government submitted its Request for Final Agency Action and forwarded the record to me. Having considered the entire record, I find that substantial evidence supports a finding that Respondent no longer possesses authority under the laws of the State of California to dispense controlled substances. I also find that substantial evidence supports a finding that Respondent dispensed controlled substances even after the Medical Board of California revoked his state license, and was no longer lawfully authorized to dispense controlled substances under his CSA registration. I thus conclude that the Government has made out a prima facie case for revocation of Respondent’s registration. Finally, because nothing in Respondent’s statement refutes the Government’s prima facie case, I will order that his registration be revoked and that any application be denied. I make the following findings of fact. Findings Respondent is the holder of DEA Certificate of Registration AA0044040, which authorized him (prior to the Immediate Suspension Order), to dispense controlled substances in schedules II through V as a practitioner at the registered location of 11847 Wilshire Blvd., Suite 303–A, Los Angeles, CA 90025. GX 1. Respondent’s registration does not expire until June 30, 2012. Id. Respondent previously held Physician’s and Surgeon’s Certificate Number A18999, which was issued by the Medical Board of California (MBC). However, on November 3, 2010, the 1 The Order further explained the procedures available to Respondent to contest the allegations. GX 2, at 2–3. These included his right to request a hearing, his right to submit a written statement regarding the matters of fact and law alleged in the Show Cause Order while waiving his right to a hearing, and finally, the consequences for failing to do either within the thirty-day time limit. See id. (citing 21 CFR 1301.43 and 1316.47). E:\FR\FM\20JNN1.SGM 20JNN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Notices MBC adopted the Proposed Decision of a State Administrative Law Judge (ALJ) regarding the MBC’s Accusation and Petition to Revoke Probation; the MBC’s order became effective on December 2, 2010. GX 4, at 1. As set forth in the Proposed Decision, Respondent and the MBC had previously entered into a Stipulated Settlement and Disciplinary Order, which placed Respondent on probation and required that he comply with various terms and conditions, including that he ‘‘maintain a record of all controlled substances ordered, prescribed, dispensed, administered, or possessed by him.’’ Id. at 3. While following the MBC’s Order, Respondent continued to prescribe controlled substances, he failed to comply with the Order and yet filed reports with the MBC, under the penalty of perjury, stating that he was doing so. Id. at 4–6. Indeed, at the state hearing, he asserted that he was not required to keep the log even though he was warned on various dates by MBC inspectors that he was required to do so. Id. The State ALJ found that Respondent’s ‘‘affirmations under penalty of perjury that he had complied with all the terms and conditions of his probation were knowingly false.’’ Id. at 6. The State ALJ further found that Respondent had refused to admit wrongdoing and had provided no assurances that he would comply with the condition in the future. Id. at 6–7. The State ALJ thus concluded that ‘‘the public health, safety and welfare cannot be protected by any discipline short of revocation’’ and thus proposed that Respondent’s medical license be revoked. Id. at 7–8. The Government also submitted printouts it obtained from the California Substance Utilization Review & Evaluation System showing Respondent’s prescribing history. However, this document does not show the actual date on which the prescriptions were written, but rather, the dates on which they were filled. Even so, because under the CSA, a prescription cannot be filled more than six months after the date on which it was written, see 21 U.S.C. 829(b), the printouts establish that Respondent issued prescriptions for such drugs as hydrocodone/acetaminophen, a schedule III controlled substance, as well as zolpidem tartrate and diethylproprion hcl, both being schedule IV controlled substances, after his state license was revoked.2 See GXs 2 Because the document does not list the actual date of issuance, but rather, only the fill date of the prescriptions, many of the prescriptions listed as VerDate Mar<15>2010 16:14 Jun 19, 2012 Jkt 226001 5 & 6; see also 21 CFR 1308.13(e); id. 1308.14(c) & (e). Discussion Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 ‘‘upon a finding that the registrant * * * has had his State license * * * suspended [or] revoked * * * by competent State authority and is no longer authorized by State law to engage in the * * * dispensing of controlled substances.’’ Moreover, DEA has repeatedly 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. 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(f). And because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the Act, DEA has repeatedly held that revocation is the appropriate sanction whenever a practitioner is no longer authorized to dispense controlled substances, regardless of whether the practitioner’s state authority has been revoked or is subject only to a suspension of fixed duration. See James L. Hooper, 76 FR 71371, 71373 (2011) (collecting cases). In his written statement, Respondent does not dispute that his state license has been suspended. Rather, he asserts that the MBC’s order ‘‘is the result of the exaggerated reports of two young inexperienced doctors (who are not internal medicine specialists such as [him]self, but are preventive medicine and family medicine specialists, and are therefore unqualified to make a report) each paid $150 per hour for their work having been filled or refilled after the effective date of the Board’s revocation order may have actually been written before the effective date. Accordingly, in making this finding, I have relied only on those prescriptions which were initially filled after June 2, 2011. PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 37069 of review of seven of my patients’ charts.’’ GX 3, at 1. Respondent further asserts that the MBC’s order of revocation ‘‘is essentially the result of a disagreement between the Medical Board and myself’’ and that all the information regarding his prescriptions ‘‘was kept in the Progress Notes of the patients’ charts’’ and ‘‘therefore[,] there was no reason to ask me to keep’’ the log. Id. at 1–2. Respondent’s argument is a collateral attack on the validity of the MBC’s Revocation Order. However, DEA has held repeatedly that a registrant cannot collaterally attack the result of a state criminal or administrative proceeding in a proceeding under section 304, 21 U.S.C. 824, of the CSA. Calvin Ramsey, 76 FR 20034, 20036 (2011) (other citations omitted); Brenton D. Glisson, 72 FR 54296, 54297 n.2 (2007); Shahid Musud Siddiqui, 61 FR 14818, 14818–19 (1996). Rather, Respondent’s challenge to the validity of the MBC’s Revocation Order must be litigated in the forums provided by the State of California, and his contentions regarding the validity of the MBC’s Order are not material to this Agency’s resolution of whether he is entitled to maintain his DEA registration in California. Because it is undisputed that Respondent currently lacks authority to dispense controlled substances in California, the State in which he holds his DEA registration, Respondent no longer meets the definition of a practitioner under the CSA and therefore, he is not entitled to maintain his registration. Accordingly, his registration will be revoked.3 3 The record also supports a finding that Respondent continued prescribing controlled substances following the revocation of his state license. This conduct is actionable under 21 U.S.C. § 824(a)(4), which authorizes the revocation of a registration where a registrant has committed acts which ‘‘render his registration * * * inconsistent with the public interest.’’ In determining the public interest, the Agency is required to consider the following factors: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The applicant’s experience in dispensing * * * controlled substances. (3) The applicant’s conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety. 21 U.S.C. 823(f). The public interest factors are considered in the disjunctive. Robert A. Leslie, 68 FR 15227, 15230 (2003). I may rely on any one or a combination of factors and may give each factor the weight I deem appropriate in determining whether to revoke an existing registration or to deny an application for a registration. Id. Moreover, I am ‘‘not required to make findings as to all of the E:\FR\FM\20JNN1.SGM Continued 20JNN1 37070 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Notices Order Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) & (4), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration AA0044040, issued to Muzaffer Aslan, M.D., be, and it hereby is, revoked. I further order that any pending application of Muzaffer Aslan, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.4 Dated: June 8, 2012. Michele M. Leonhart, Administrator. [FR Doc. 2012–15061 Filed 6–19–12; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF LABOR Employment and Training Administration Proposed Collection of Information for the Evaluation of the Self-Employment Training Demonstration; New Collection Employment and Training Administration (ETA), Labor. ACTION: Notice. AGENCY: The Department of Labor (Department or DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to mstockstill on DSK4VPTVN1PROD with NOTICES SUMMARY: factors.’’ Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also Morall v. DEA, 412 F.3d 165, 173– 74 (D.C. Cir. 2005). See also MacKay v. DEA, 664 F.3d 808, 816 (10th Cir. 2011). In this matter, I have considered all of the factors. With respect to factor one, the same considerations as set forth above in the discussion of my authority under 21 U.S.C. 824(a)(3) apply. Furthermore, while there is no evidence that Respondent has been convicted of an offense falling within factor three, under DEA precedent, this is not dispositive. See MacKay, 664 F.3d at 817–18 (quoting Dewey C. MacKay, 75 FR 49956, 49973 (2010)). However, I further find that evidence, which is relevant under factor two (Respondent’s experience in dispensing controlled substances) and factor four (Respondent’s compliance with applicable laws related to controlled substances), establishes that Respondent issued controlled substance prescriptions after the State revoked his medical license. This is a violation of 21 U.S.C. 1306.03(a)(1), which provides that ‘‘[a] prescription for a controlled substance may be issued only by an individual practitioner who is * * * [a]uthorized to prescribe controlled substances by the jurisdiction in which he is licensed to practice his profession’’ and thus constitutes a violation of 21 U.S.C. 841(a)(1). Moreover, while Respondent stated in his letter that ‘‘[t]his is not accurate’’ and that two MBC investigators ‘‘talked to me about it,’’ GX 3, at 1, he offered no probative evidence to refute the allegation. 4 For the same reason that led me to order the Immediate Suspension of Respondent’s registration, I conclude that the public interest necessitates that this Order be effective immediately. See 21 CFR 1316.67. VerDate Mar<15>2010 16:14 Jun 19, 2012 Jkt 226001 provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) [44 U.S.C. 3505(c)(2)(A)]. The program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of the collection requirements on respondents can be properly assessed. The proposed application package, follow-up survey, site visit data collection, and case study interviews are for an evaluation of the SelfEmployment Training (SET) Demonstration. This demonstration and its evaluation are sponsored by ETA to understand whether providing dislocated workers access to selfemployment training and counseling services increases their likelihood of reemployment, their earnings, and their propensity to enter into selfemployment. DATES: Written comments must be submitted to the office listed in the addressee’s section below on or before August 20, 2012. ADDRESSES: A copy of this proposed information collection request may be obtained by contacting Janet Javar at 202–693–3677 (this is not a toll-free number) or email: javar.janet@dol.gov. Comments are to be submitted to Department of Labor/Employment and Training Administration, Attn: Janet Javar, 200 Constitution Avenue NW., Room N–5641, Washington, DC 20210. Written comments may be transmitted by facsimile to 202–693–2766 (this is not a toll-free number) or emailed to javar.janet@dol.gov. SUPPLEMENTARY INFORMATION: I. Background ETA seeks to implement and rigorously evaluate the effectiveness of innovative strategies for promoting employment based on the authority granted to the agency under Title I of the Workforce Investment Act. The SET Demonstration focuses specifically on self-employment as a reemployment strategy for dislocated workers. The demonstration is premised on the hypotheses that: (1) Self-employment could be a viable strategy for dislocated workers to become reemployed; (2) starting a small business is difficult, especially for individuals who lack business expertise or access to start-up capital; and (3) dislocated workers might experience difficulties locating PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 and accessing training and counseling services that could effectively prepare them for self-employment via the existing workforce infrastructure. The SET Demonstration will implement a new service delivery model that seeks to better connect dislocated workers to self-employment services. This approach differs from previous large-scale demonstration programs, which have provided mixed evidence on the effectiveness of selfemployment services on earnings and employment, because the SET Demonstration will: (1) Rely on selfemployment advisors to offer more intensive business development counseling services than prior demonstrations have offered; and (2) concentrate on dislocated workers who have fairly limited traditional employment prospects but are wellpositioned to benefit from selfemployment counseling and training. The SET Evaluation will assess the effectiveness of the SET Demonstration model. II. Review Focus The Department is particularly interested in comments which: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; • Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. III. Current Actions This proposed information collection will involve collecting data from participants of the SET Demonstration. Agency: Employment and Training Administration. Type of Review: New Collection. Title of Collection: Information and Survey Collection for the SelfEmployment Training Demonstration. OMB Control Number: 1205–0NEW. Affected Public: Applicants and participants (dislocated workers), OneStop Career Center (OSCC) E:\FR\FM\20JNN1.SGM 20JNN1

Agencies

[Federal Register Volume 77, Number 119 (Wednesday, June 20, 2012)]
[Notices]
[Pages 37068-37070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15061]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Muzaffer Aslan, M.D.; Decision and Order

    On December 14, 2011, I, the Administrator of the Drug Enforcement 
Administration, issued an Order to Show Cause and Immediate Suspension 
of Registration to Muzaffer Aslan, M.D. (hereinafter, Respondent), of 
Los Angeles, California. GX 2. The Show Cause Order proposed the 
revocation of Respondent's DEA Certificate of Registration AA0044040, 
which authorizes him to dispense controlled substances as a 
practitioner, on the ground that Respondent does not possess authority 
under the laws of the State of California, the State in which he is 
registered with DEA, to dispense controlled substances. Id. at 1 
(citing 21 U.S.C. 824(a)(3)). The Order further proposed the denial of 
any applications to renew or modify Respondent's registration, as well 
as for any additional registration, on the ground that his ``continued 
registration is inconsistent with the public interest.'' Id. (citing 21 
U.S.C. 823(f)).
    The Show Cause Order specifically alleged that on December 2, 2010, 
the Medical Board of California had revoked Respondent's State medical 
license and that the Board had found, inter alia, that Respondent had, 
on multiple occasions, prescribed controlled substances ``without 
performing a prior good faith examination.'' Id. at 1-2. The Order thus 
alleged that Respondent is currently without authority to handle 
controlled substances in California. Id. at 2.
    The Show Cause Order further alleged that notwithstanding that 
Respondent is ``prohibited from practicing medicine in * * * 
California,'' he has continued to prescribe controlled substances as 
evidenced by data from the State's prescription monitoring program. Id. 
Based on the forgoing, I concluded that Respondent's continued 
registration during the pendency of the proceedings would constitute an 
``imminent danger to the public health and safety.'' Id. (citing 21 
U.S.C. 824(a)(4)). I therefore authorized the immediate suspension of 
Respondent's registration. Id.
    On or about December 15, 2011, a DEA Diversion Investigator 
personally served the Order on Respondent by hand-delivering a copy to 
his residence.\1\ GX 7, at 2. The DI also mailed a copy of the Order to 
Respondent. Id.
---------------------------------------------------------------------------

    \1\ The Order further explained the procedures available to 
Respondent to contest the allegations. GX 2, at 2-3. These included 
his right to request a hearing, his right to submit a written 
statement regarding the matters of fact and law alleged in the Show 
Cause Order while waiving his right to a hearing, and finally, the 
consequences for failing to do either within the thirty-day time 
limit. See id. (citing 21 CFR 1301.43 and 1316.47).
---------------------------------------------------------------------------

    On December 28, 2011, Respondent submitted a letter to the Hearing 
Clerk, Office of Administrative Law Judges. GX 3. Therein, Respondent 
stated that he was waiving his right to a hearing but submitting a 
written statement of his position regarding the allegations. GX 3. 
Pursuant to 21 CFR 1301.43(c), Respondent's statement has been made a 
part of the record of this proceeding and has been considered in this 
decision.
    On February 7, 2012, the Government submitted its Request for Final 
Agency Action and forwarded the record to me. Having considered the 
entire record, I find that substantial evidence supports a finding that 
Respondent no longer possesses authority under the laws of the State of 
California to dispense controlled substances. I also find that 
substantial evidence supports a finding that Respondent dispensed 
controlled substances even after the Medical Board of California 
revoked his state license, and was no longer lawfully authorized to 
dispense controlled substances under his CSA registration. I thus 
conclude that the Government has made out a prima facie case for 
revocation of Respondent's registration. Finally, because nothing in 
Respondent's statement refutes the Government's prima facie case, I 
will order that his registration be revoked and that any application be 
denied. I make the following findings of fact.

Findings

    Respondent is the holder of DEA Certificate of Registration 
AA0044040, which authorized him (prior to the Immediate Suspension 
Order), to dispense controlled substances in schedules II through V as 
a practitioner at the registered location of 11847 Wilshire Blvd., 
Suite 303-A, Los Angeles, CA 90025. GX 1. Respondent's registration 
does not expire until June 30, 2012. Id.
    Respondent previously held Physician's and Surgeon's Certificate 
Number A18999, which was issued by the Medical Board of California 
(MBC). However, on November 3, 2010, the

[[Page 37069]]

MBC adopted the Proposed Decision of a State Administrative Law Judge 
(ALJ) regarding the MBC's Accusation and Petition to Revoke Probation; 
the MBC's order became effective on December 2, 2010. GX 4, at 1.
    As set forth in the Proposed Decision, Respondent and the MBC had 
previously entered into a Stipulated Settlement and Disciplinary Order, 
which placed Respondent on probation and required that he comply with 
various terms and conditions, including that he ``maintain a record of 
all controlled substances ordered, prescribed, dispensed, administered, 
or possessed by him.'' Id. at 3. While following the MBC's Order, 
Respondent continued to prescribe controlled substances, he failed to 
comply with the Order and yet filed reports with the MBC, under the 
penalty of perjury, stating that he was doing so. Id. at 4-6. Indeed, 
at the state hearing, he asserted that he was not required to keep the 
log even though he was warned on various dates by MBC inspectors that 
he was required to do so. Id.
    The State ALJ found that Respondent's ``affirmations under penalty 
of perjury that he had complied with all the terms and conditions of 
his probation were knowingly false.'' Id. at 6. The State ALJ further 
found that Respondent had refused to admit wrongdoing and had provided 
no assurances that he would comply with the condition in the future. 
Id. at 6-7. The State ALJ thus concluded that ``the public health, 
safety and welfare cannot be protected by any discipline short of 
revocation'' and thus proposed that Respondent's medical license be 
revoked. Id. at 7-8.
    The Government also submitted printouts it obtained from the 
California Substance Utilization Review & Evaluation System showing 
Respondent's prescribing history. However, this document does not show 
the actual date on which the prescriptions were written, but rather, 
the dates on which they were filled. Even so, because under the CSA, a 
prescription cannot be filled more than six months after the date on 
which it was written, see 21 U.S.C. 829(b), the printouts establish 
that Respondent issued prescriptions for such drugs as hydrocodone/
acetaminophen, a schedule III controlled substance, as well as zolpidem 
tartrate and diethylproprion hcl, both being schedule IV controlled 
substances, after his state license was revoked.\2\ See GXs 5 & 6; see 
also 21 CFR 1308.13(e); id. 1308.14(c) & (e).
---------------------------------------------------------------------------

    \2\ Because the document does not list the actual date of 
issuance, but rather, only the fill date of the prescriptions, many 
of the prescriptions listed as having been filled or refilled after 
the effective date of the Board's revocation order may have actually 
been written before the effective date. Accordingly, in making this 
finding, I have relied only on those prescriptions which were 
initially filled after June 2, 2011.
---------------------------------------------------------------------------

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 ``upon a 
finding that the registrant * * * has had his State license * * * 
suspended [or] revoked * * * by competent State authority and is no 
longer authorized by State law to engage in the * * * dispensing of 
controlled substances.'' Moreover, DEA has repeatedly 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.
    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(f). And because Congress has clearly 
mandated that a practitioner possess state authority in order to be 
deemed a practitioner under the Act, DEA has repeatedly held that 
revocation is the appropriate sanction whenever a practitioner is no 
longer authorized to dispense controlled substances, regardless of 
whether the practitioner's state authority has been revoked or is 
subject only to a suspension of fixed duration. See James L. Hooper, 76 
FR 71371, 71373 (2011) (collecting cases).
    In his written statement, Respondent does not dispute that his 
state license has been suspended. Rather, he asserts that the MBC's 
order ``is the result of the exaggerated reports of two young 
inexperienced doctors (who are not internal medicine specialists such 
as [him]self, but are preventive medicine and family medicine 
specialists, and are therefore unqualified to make a report) each paid 
$150 per hour for their work of review of seven of my patients' 
charts.'' GX 3, at 1. Respondent further asserts that the MBC's order 
of revocation ``is essentially the result of a disagreement between the 
Medical Board and myself'' and that all the information regarding his 
prescriptions ``was kept in the Progress Notes of the patients' 
charts'' and ``therefore[,] there was no reason to ask me to keep'' the 
log. Id. at 1-2.
    Respondent's argument is a collateral attack on the validity of the 
MBC's Revocation Order. However, DEA has held repeatedly that a 
registrant cannot collaterally attack the result of a state criminal or 
administrative proceeding in a proceeding under section 304, 21 U.S.C. 
824, of the CSA. Calvin Ramsey, 76 FR 20034, 20036 (2011) (other 
citations omitted); Brenton D. Glisson, 72 FR 54296, 54297 n.2 (2007); 
Shahid Musud Siddiqui, 61 FR 14818, 14818-19 (1996). Rather, 
Respondent's challenge to the validity of the MBC's Revocation Order 
must be litigated in the forums provided by the State of California, 
and his contentions regarding the validity of the MBC's Order are not 
material to this Agency's resolution of whether he is entitled to 
maintain his DEA registration in California.
    Because it is undisputed that Respondent currently lacks authority 
to dispense controlled substances in California, the State in which he 
holds his DEA registration, Respondent no longer meets the definition 
of a practitioner under the CSA and therefore, he is not entitled to 
maintain his registration. Accordingly, his registration will be 
revoked.\3\
---------------------------------------------------------------------------

    \3\ The record also supports a finding that Respondent continued 
prescribing controlled substances following the revocation of his 
state license. This conduct is actionable under 21 U.S.C. Sec.  
824(a)(4), which authorizes the revocation of a registration where a 
registrant has committed acts which ``render his registration * * * 
inconsistent with the public interest.'' In determining the public 
interest, the Agency is required to consider the following factors:
    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing * * * controlled 
substances.
    (3) The applicant's conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.
    21 U.S.C. 823(f). The public interest factors are considered in 
the disjunctive. Robert A. Leslie, 68 FR 15227, 15230 (2003). I may 
rely on any one or a combination of factors and may give each factor 
the weight I deem appropriate in determining whether to revoke an 
existing registration or to deny an application for a registration. 
Id. Moreover, I am ``not required to make findings as to all of the 
factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also 
Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005). See also 
MacKay v. DEA, 664 F.3d 808, 816 (10th Cir. 2011).
    In this matter, I have considered all of the factors. With 
respect to factor one, the same considerations as set forth above in 
the discussion of my authority under 21 U.S.C. 824(a)(3) apply. 
Furthermore, while there is no evidence that Respondent has been 
convicted of an offense falling within factor three, under DEA 
precedent, this is not dispositive. See MacKay, 664 F.3d at 817-18 
(quoting Dewey C. MacKay, 75 FR 49956, 49973 (2010)).
    However, I further find that evidence, which is relevant under 
factor two (Respondent's experience in dispensing controlled 
substances) and factor four (Respondent's compliance with applicable 
laws related to controlled substances), establishes that Respondent 
issued controlled substance prescriptions after the State revoked 
his medical license. This is a violation of 21 U.S.C. 1306.03(a)(1), 
which provides that ``[a] prescription for a controlled substance 
may be issued only by an individual practitioner who is * * * 
[a]uthorized to prescribe controlled substances by the jurisdiction 
in which he is licensed to practice his profession'' and thus 
constitutes a violation of 21 U.S.C. 841(a)(1). Moreover, while 
Respondent stated in his letter that ``[t]his is not accurate'' and 
that two MBC investigators ``talked to me about it,'' GX 3, at 1, he 
offered no probative evidence to refute the allegation.

---------------------------------------------------------------------------

[[Page 37070]]

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) & 
(4), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration AA0044040, issued to Muzaffer Aslan, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Muzaffer Aslan, M.D., to renew or modify his registration, be, and it 
hereby is, denied. This Order is effective immediately.\4\
---------------------------------------------------------------------------

    \4\ For the same reason that led me to order the Immediate 
Suspension of Respondent's registration, I conclude that the public 
interest necessitates that this Order be effective immediately. See 
21 CFR 1316.67.

    Dated: June 8, 2012.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-15061 Filed 6-19-12; 8:45 am]
BILLING CODE 4410-09-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.