Christina B. Paylan, M.D.; Decision and Order, 69979-69982 [2015-28727]
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SUMMARY:
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DEPARTMENT OF JUSTICE
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Drug Enforcement Administration
[Docket No. 15–21;
Christina B. Paylan, M.D.; Decision and
Order
On July 1, 2015, Administrative Law
Judge Christopher B. McNeil issued the
attached Recommended Decision.
Therein, the ALJ found it undisputed
that Respondent’s medical license has
been suspended by the Florida
Department of Health, and that
therefore, she ‘‘is not authorized to
handle controlled substances in the
State of Florida.’’ R.D. 6. Because
Respondent is no longer a ‘‘practitioner’’
within the meaning of the Controlled
Substances Act, the ALJ granted the
Government’s Motion for Summary
Disposition and recommended that her
registration be revoked 1 and that any
pending application to renew or modify
her registration be denied. Id.
Respondent filed Exceptions to the
Decision and the Government filed a
Response to Respondent’s Exceptions.
Thereafter, the record was forwarded to
me for final agency action.
Having considered the record in its
entirety, I have decided to adopt the
ALJ’s factual finding, his conclusions of
law, and recommended order. A
discussion of Respondent’s Exceptions
follows.
Respondent’s first exception is based
on the ALJ’s finding that she is ‘‘no
1 According to the registration records of this
Agency, of which I take official notice, see 5 U.S.C.
556(e), Respondent’s registration does not expire
until March 31, 2016.
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69979
longer authorized by state law to handle
controlled substances.’’ Exceptions at 1.
Noting that the language of section
824(a)(3) authorizes the suspension or
revocation of a registration where a
registrant ‘‘is no longer authorized by
State law to engage in the
manufacturing, distribution or
dispensing of controlled substances,’’
Respondent argues that the ALJ lumped
together ‘‘[t]he words ‘manufacturing,
distribution or dispensing’’’ and that
this ‘‘violates the strict requirement for
strict statutory construction.’’ Id.
Apparently, because the ALJ used the
word ‘‘handle’’ rather than ‘‘dispense’’
to describe the authority Respondent no
longer holds by virtue of the suspension
of her medical license, Respondent
believes that the Agency lacks authority
to revoke her registration.
It is true that the Controlled
Substances Act does not use the word
‘‘handle’’ in describing the activities
that various categories of registrants are
authorized to engage in pursuant to
their registrations. Rather, the term is
part of the Agency’s vernacular.
Notwithstanding the language used by
the ALJ, the Agency possesses authority
to revoke Respondent’s registration
because the record establishes that she
lacks authority to dispense controlled
substances in Florida, the State in
which she is registered with DEA.
Specifically, the evidence shows that on
October 28, 2014, the Florida
Department of Health ordered the
emergency suspension of Respondent’s
license ‘‘to practice as a medical doctor’’
after she was convicted in state court of
two felony offenses, including, inter
alia, ‘‘obtaining a controlled substance
by fraud.’’ In re Emergency Suspension
of the License of Christina B. Paylan,
M.D., 1–2 (Fla. Dept. of Health Oct. 28,
2014) (No. 2014–12284). Respondent
therefore lacks authority under Florida
law to dispense controlled substances
within the meaning of the CSA. See Fla.
Stat. § 458.305(3) (defining the ‘‘practice
of medicine’’ as ‘‘the diagnosis,
treatment, operation, or prescription for
any human disease, pain, injury,
deformity, or other physical or mental
condition’’); id. § 458.305(4) (defining
‘‘physician’’ as ‘‘a person who is
licensed to practice medicine in this
state’’); § 456.065(2)(d)(1) (prohibiting
the unlicensed practice of ‘‘a health care
profession without an active, valid . . .
license to practice that professional’’
which ‘‘includes practicing on a
suspended . . . license’’).
Respondent further argues that
because she ‘‘is not a dispensing
practitioner’’ as defined by Florida law,
she is outside of the scope of section
824(a)(3). Exceptions at 5. Respondent
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explains that under Florida law and
regulation, a dispensing practitioner ‘‘is
one who acts as a pharmacy and sells
medications . . . to patients’’ and that
she ‘‘is not registered as a dispensing
practitioner . . . because she does not
sell medications to patients out of her
office.’’ Id.
Be that as it may, the CSA defines
‘‘[t]he term ‘dispense’ [to] mean[] to
deliver a controlled substance to an
ultimate user . . . by, or pursuant to the
lawful order of, a practitioner, including
the prescribing and administering of a
controlled substance.’’ 21 U.S.C. 802(10)
(emphasis added). Because the term
‘‘dispense’’ is not limited to direct
dispensing but includes prescribing and
administering, section 824(a)(3)
authorizes the revocation of her
registration based on her lack of
authority under Florida law to practice
medicine.2
Respondent also argues that revoking
her registration would be arbitrary and
capricious because the ALJ ignored
relevant evidence. Exceptions at 4.
According to Respondent, the relevant
evidence is that in her criminal case
(which was the basis of the State
Board’s action), she ‘‘was not tried as a
doctor, but rather as a layperson’’ and
that ‘‘[t]he only fraud’’ proved by the
State was that she ‘‘did not receive
permission from CM in order to write a
prescription to order drugs for an
upcoming surgical procedure.’’ Id.; see
also id. at 5–6 (arguing that state
prosecutor committed ‘‘prosecutorial
misconduct’’ in her criminal trial when
he/she ‘‘argued that a doctor is not a
doctor’’).
The ALJ properly rejected this
argument as it is a collateral attack on
her state court conviction and the State
Board’s suspension order which cannot
be litigated in a proceeding brought
under section 304 of the CSA. See
Kamal Tiwari, 76 FR 71604, 71606
(2011) (citing cases); see also R.D. at 4
2 Respondent also disputes whether she ‘‘is no
longer authorized by State law to engage in the . . .
dispensing of controlled substances.’’ Exceptions at
2. Respondent argues that ‘‘[t]here is no language
in the Emergency Suspension Order issued by the
Florida Board of Medicine or any other evidence
. . . that [she] is ‘no longer authorized by state law
to handle controlled substances.’ ’’ Id. She further
argues that she still has her medical license. Id. at
2–3.
While Respondent may still hold a medical
license, it is undisputed that the Board of Medicine
has suspended it. Accordingly, she is no longer
authorized to practice medicine and prescribe
controlled substances. While Respondent further
asserts that the Board has yet to provide her with
‘‘a full hearing,’’ id. at 3, the ALJ properly rejected
this contention. See R.D. at n.13 (citing cases
holding that revocation is warranted even where a
practitioner’s state authority has been summarily
suspended and the State has yet to provide a
hearing).
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n.8 (citing cases). Rather, her challenges
to either her conviction or the
suspension order must be litigated in
the forums provided by the State.
Tiwari, 76 FR at 71606. Moreover, the
only evidence that is relevant in
determining whether Respondent’s
registration should be revoked is
whether she ‘‘is no longer authorized by
State law to engage in the . . .
dispensing of controlled substances.’’ 21
U.S.C. 824(a)(3). Because it undisputed
that Respondent is no longer authorized
under Florida law to dispense
controlled substances, she no longer
meets the statutory definition of a
practitioner. See id. § 802(21) (‘‘The
term ‘practitioner’ means a physician
. . . or other person licensed, registered,
or otherwise permitted, by the United
States or the jurisdiction in which [s]he
practices . . . to distribute, dispense,
. . . [or] administer . . . a controlled
substances in the course of professional
practice . . . .’’); id. § 823(f) (‘‘The
Attorney General shall register
practitioners . . . to dispense . . .
controlled substances . . . . if the
applicant is authorized to dispense . . .
controlled substances under the laws of
the State in which [s]he practices’’).
Accordingly, I adopt the ALJ’s
recommended order and will revoke
Respondent’s registration and deny any
pending applications to renew or
modify her registration. 3
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a)(3) and 823(f), as
well as 28 CFR 0.100(b), I order that
DEA Certificate of Registration
BP7179496, issued to Christina Paylan,
M.D., be, and it hereby is, revoked. I
further order that any pending
application of Christina Paylan, M.D., to
renew or modify DEA Certificate of
Registration BP7179496, be, and it
hereby is, denied. This order is effective
December 14, 2015.
Dated: November 2, 2015.
Chuck Rosenberg,
Acting Administrator.
Brian Bayly, Esq., for the Government.
Christina M. Paylan, pro se, for the
Respondent.
3 Respondent also argues that I should issue a writ
of error coram nobis to correct the error committed
by the state court when it allowed the prosecutor
to present her to the jury ‘‘as a layperson, [and] not
as a doctor.’’ Exceptions at 7. This, however, is just
another variation of her collateral attack on the state
court proceeding, and in any event, Congress has
not granted such authority to DEA.
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ORDER GRANTING THE
GOVERNMENT’S MOTION FOR
SUMMARY DISPOSITION AND
FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND RECOMMENDED
DECISION OF THE ADMINISTRATIVE
LAW JUDGE
Christopher B. McNeil,
Administrative Law Judge. On April 29,
2015, the Deputy Assistant
Administrator of the Drug Enforcement
Administration issued an Order to Show
Cause as to why the DEA should not
revoke DEA Certificate of Registration
(COR) Number BP7179496 issued to
Christina Paylan, M.D., the Respondent
in this matter. The Order seeks to revoke
Respondent’s registration pursuant to 21
U.S.C. §§ 824(a)(3) and 823(f)(4), and to
deny any pending applications for
renewal or modification of such
registration, and deny any applications
for any new DEA registrations pursuant
to 21 U.S.C. § 823(f). As grounds for
revocation, the Deputy Assistant
Administrator alleges that Respondent
is without authority to handle
controlled substances in Florida, the
state in which Dr. Paylan is registered
with the DEA. As further grounds for
revocation, the Deputy Assistant
Administrator alleges that Dr. Paylan
has been convicted of felonies related to
controlled substances and that her
continued registration is inconsistent
with the public interest.
On May 8, 2015, the DEA’s Office of
Administrative Law Judges received a
notice that Dr. Paylan was served with
the Order to Show Cause on May 6,
2015.
On May 28, 2015, the DEA’s Office of
Administrative Law Judges received
Respondent’s written request for a
hearing, dated May 28, 2015.
Thereafter, on June 1, 2015, this
Office issued an Order for Briefing on
Allegations Concerning Respondent’s
Lack of State Authority. In the Order, I
required the Government to submit
evidence and arguments to support the
allegation that Respondent lacks state
authority to handle controlled
substances and, if appropriate, file a
motion for summary disposition no later
than 2:00 p.m. Eastern Daylight Time
(EDT) on June 15, 2015. Also in my June
1, 2015 Order, I allowed the Respondent
to file a response to the Government’s
motion for summary disposition no later
than 2:00 p.m. EDT on June 29, 2015.
On June 3, 2015, the Government
timely filed its Motion for Summary
Disposition, along with its Brief in
Support of the Order to Show Cause
Allegation That Respondent Lacks State
Authority to Handle Controlled
Substances. In its filings, the
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Government averred that on October 28,
2014, the State of Florida Department of
Health issued an Order of Emergency
Suspension of License (Suspension
Order) of Dr. Paylan’s medical license.4
Based on this event, the Government
argues that under applicable DEA
precedent Respondent’s DEA COR
should be revoked.
On June 29, 2015, the Respondent
timely filed her response, entitled
Affidavit of Christina Paylan, MD in
Support of Her Response to the
Government’s Summary Disposition
(Response). Dr. Paylan attached to her
Response a 187-page brief (Brief) that
included exhibits in support of her
position. In her Brief, Dr. Paylan relies
upon three legal arguments. First, Dr.
Paylan argues that collateral estoppel/
res judicata is applicable to this
proceeding. Next, Dr. Paylan avers that
she received ineffective assistance from
counsel in her criminal trial which
formed the basis of the State Medical
Board’s emergency order suspending Dr.
Paylan’s license to practice medicine in
the State of Florida. Last, Dr. Paylan
states that due to prosecutorial
misconduct, it was not her who was
convicted in her criminal trial.
Notably, nowhere in her brief does Dr.
Paylan claim that she has state authority
to handle controlled substances—the
threshold issue in this matter. To the
contrary, Dr. Paylan’s arguments center
on the alleged factual background of her
criminal conviction, and fail to
contradict the basis upon which the
Government seeks summary disposition
in this proceeding. Respondent has
therefore failed to rebut the substantial
issue raised by the Government.
The Government asserts that
Respondent’s DEA Certificate of
Registration must be revoked because
Respondent does not have a medical
license issued by the state in which she
practices.5 This assertion is significant
because DEA precedent holds that a
practitioner’s DEA Certificate of
Registration for controlled substances
must be summarily revoked if the
applicant is not authorized to handle
controlled substances in the state in
which she maintains her DEA
registration.6 Pursuant to 21 U.S.C.
4 Gov’t Mot. For Summary Disp. at 2 &
Attachment 1 (State of Florida Department of
Health Order of Emergency Suspension of License).
5 Id.
6 See 21 U.S.C. 802(21), 823(f), 824(a)(3); see also
House of Medicine, 79 FR 4959, 4961 (2014);
Deanwood Pharmacy, 68 FR 41662 (2003); Wayne
D. Longmore, M.D., 77 FR 67,669 (2012); Alan H.
Olefsky, M.D., 72 FR 42,127 (2007); Layfe Robert
Anthony, M.D., 67 FR 15,811 (2002); George
Thomas, PA±C, 64 FR 15811 (1999); Shahid Musud
Siddiqui, M.D., 61 Fed. Reg 14818–02 (1996);
Michael D. Lawton, M.D., 59 FR 17792 (1994);
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§ 823(f), only a ‘‘practitioner’’ may
receive a DEA registration. Under 21
U.S.C. § 802(21), a ‘‘practitioner’’ must
be ‘‘licensed, registered, or otherwise
permitted, by the United States or the
jurisdiction in which he practices or
does research, to distribute [or] dispense
. . . controlled substance[s.]’’ Given this
statutory language, the DEA
Administrator does not have the
authority under the Controlled
Substances Act to maintain a
practitioner’s registration if that
practitioner is not authorized to
dispense controlled substances.7
In her Response and Brief, Dr. Paylan
counters the Government’s assertions
arguing that collateral estoppel/res
judicata should apply to this
proceeding, and requests that I ‘‘fashion
an order that is something other than
revocation, and more like a temporary
suspension and/or abeyance until these
state issues of res judicata are fully
addressed before the ALJ in Tallahassee,
and/or until a decision of the State
Appellate Court is rendered reversing
the conviction.’’ 8 Dr. Paylan alleges that
the Board’s Order of Emergency
Suspension determination was based on
Dr. Paylan’s conviction in a State
criminal trial for the same conduct she
was previously exonerated of before the
Board.9 Dr. Paylan thus avers that res
judicata should have applied in the
Board’s emergency suspension orders.
Dr. Paylan also argues that ‘‘if the local
DEA agent found Dr. Paylan to have
engaged in no wrongdoing at the time of
the transaction, then Dr. Paylan, is at a
minimum, entitled to a collateral
estoppel argument now.’’ 10
This Agency has held ‘‘that a
registrant cannot collaterally attack the
results of a state criminal or
administrative proceeding in a
proceeding under section 304 of the
CSA.’’ 11 Thus, in this proceeding, Dr.
Paylan is precluded from attacking the
results of both the Circuit Court of the
Thirteenth Judicial Circuit in and for
Hillsborough County, Florida, and the
Abraham A. Chaplan, M.D., 57 FR 55280 (1992);
See also Bio Diagnosis Int'l, 78 FR 39327, 39331
(2013) (distinguishing distributor applicants from
other ‘‘practitioners’’ in the context of summary
disposition analysis).
7 See Abraham A. Chaplan, M.D., 57 FR 55,280,
55,280 (1992), and cases cited therein. In Chaplan,
DEA Administrator Robert C. Bonner adopts the
ALJ’s opinion that ‘‘the DEA lacks statutory power
to register a practitioner unless the practitioner
holds state authority to handle controlled
substances.’’ Id.
8 Resp. Br. at 12.
9 Resp. Br. at 7–8.
10 Resp. Br. at 10.
11 Sunil Bhasin, M.D., 72 FR 5,082, 5,083 (2007);
see also Shahid Musud Siddiqui, 61 FR 14818,
14,818–19 (1996); and Robert A. Leslie, 60 FR
14,004, 14,005 (1995).
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69981
Florida Department of Health Order of
Emergency Suspension. Similarly, a
DEA agent’s purported inaction in
pursuing Dr. Paylan for an alleged crime
does not carry any preclusive weight
because it is not an issue that has been
litigated. Therefore, collateral estoppel
is inapplicable to Dr. Paylan’s
aforementioned claim. Thus, Dr.
Paylan’s collateral estoppel argument
fails.
As for her res judicata claim, Dr.
Paylan argues that the DEA had
knowledge of, but did not take action
on, the event that Dr. Paylan was
convicted of in State court.12 Dr. Paylan
represents that the Florida State
Administrative Law Judge assigned to
the DOH v. Paylan Case No:15–0429
issued an initial order recognizing the
presence of res judicata as an issue
applicable to the administrative
proceeding.13 But in this proceeding, Dr.
Paylan herself notes ‘‘the absence of a
formal proceeding by the DEA such as
convening of this forum may preclude
the argument of res judicata.’’ 14
In this instance, the DEA is not
relitigating a claim that was previously
heard, and it is not bringing a claim that
could have been litigated in a prior DEA
proceeding in accordance with the
doctrine of res judicata.15 Rather, the
event that served as the catalyst for the
Government’s Order to Show Cause in
this proceeding was the State of Florida
Department of Health Order of
Emergency Suspension of License. But
the present proceeding has been
convened for the purpose of
determining whether the Administrator
should revoke the Respondent’s DEA
Certificate of Registration pursuant to 21
U.S.C. 824(a)(3) and 823(f)(4), and
whether the Administrator should deny
any pending applications for renewal or
modification of such registration, and
any applications for new DEA
registrations pursuant to 21 U.S.C.
823(f). Absent the existence in this
present proceeding of a claim that has
been previously litigated, or a claim that
could have been litigated in a prior
proceeding, the doctrine of res judicata
is inapplicable here.
Dr. Paylan’s second and third
arguments, that she experienced
ineffective assistance of counsel in her
state criminal proceeding, and that her
conviction was purportedly a person
who was presented to the jury as a nondoctor, i.e. not Dr. Paylan, fail because
these arguments do not relate to the
issue of whether Dr. Paylan currently
12 Resp.
Br. at 10.
Br. at 8.
14 Resp. Br. at 9.
15 OTSC at 1.
13 Resp.
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has authority to handle controlled
substances in the State of Florida. For
this reason, Dr. Paylan’s second and
third claims fall outside the scope of
this proceeding as well.
Last, while I am mindful of Dr.
Paylan’s request for a temporary
suspension or abeyance of these
proceedings, the DEA has consistently
summarily revoked DEA certificates of
registration based on state medical
board temporary suspension orders, and
it has previously denied staying its
proceedings pending the outcome of a
Respondent’s appeal of his state
licensing authority’s suspension of his
license.16
As detailed above, only a
‘‘practitioner’’ may receive a DEA
registration.17 Finding that Dr. Paylan is
currently without license to practice as
a medical doctor, and thus is not
authorized to handle controlled
substances in the State of Florida, I
cannot and will not recommend that
these proceedings be held in abeyance,
or that Respondent’s registration be
suspended. I will instead recommend
her registration be revoked.
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Order Granting the Government’s
Motion for Summary Disposition and
Recommendation
I find there is no genuine dispute
regarding whether Respondent is a
‘‘practitioner’’ as that term is defined by
21 U.S.C. 802(21), and that based on the
record the Government has established,
by at least a preponderance of the
evidence, that Respondent is not a
practitioner and is not authorized to
dispense controlled substances in the
state in which she seeks to practice with
a DEA Certificate of Registration. I
16 See Steven I. Topel, M.D., 58 FR
37,509(1993)(revoking Respondent’s COR based on
a temporary suspension order issued by the
Kentucky Board of Medical Licensure); see also
Carmencita E. Fallora, M.D., 60 FR 47,967, 47,968
(1995) (rejecting Respondent’s argument that DEA
did not have legal authority under 21 U.S.C.
824(a)(3) to summarily revoke her DEA registration
based on a state medical board’s temporary
suspension order; See also Gary Alfred Shearer,
M.D., 78 FR 19,009, 19,012 (2013) (holding that
‘‘[r]evocation of the DEA certificate is warranted
even where a practitioner’s state authority has been
summarily suspended and the state has yet to
provide the practitioner with a hearing to challenge
the state action at which he may ultimately
prevail.’’ Id.)
17 In James L. Hooper, 76 FR 71, 371, 71,372
(2011), the Administrator held that ‘‘the controlling
question is not whether a practitioner’s license to
practice medicine in the state is suspended or
revoked; rather, it is whether the Respondent is
currently authorized to handle controlled
substances in the state’’ and ‘‘even where a
practitioner’s state license has been suspended for
a period of certain duration, the practitioner no
longer meets the statutory definition of a
practitioner.’’ Id. (citing Anne Lazar Thorn, M.D, 62
FR 12,847, 12,848 (1997).
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further find that the Respondent has
failed to dispute this assertion.
Accordingly, I GRANT the
Government’s Motion for Summary
Disposition.
Upon this finding, I ORDER that this
case be forwarded to the Administrator
for final disposition and I recommended
that Respondent’s DEA Certificate of
Registration should be REVOKED and
any pending application for the renewal
or modification of the same should be
DENIED.
additional tax credit by Section 3303 of
the IRC. Both certifications list all 53
jurisdictions.
Dated: July 1, 2015
s/Christopher B. McNeil
Administrative Law Judge
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ACTION: Notice.
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The Secretary of Labor signed
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October 31, 2015
The Honorable Jacob J. Lew,
Secretary of the Treasury,
Department of the Treasury,
1500 Pennsylvania Avenue NW.,
Washington, DC 20220.
Dear Secretary Lew:
Transmitted herewith are an original
and one copy of the certifications of the
states and their unemployment
compensation laws for the 12-month
period ending on October 31, 2015. The
first certification is required with
respect to the normal federal
unemployment tax credit by Section
3304 of the Internal Revenue Code of
1986 (IRC), and the second certification
is required with respect to the
PO 00000
Frm 00048
Fmt 4703
Sfmt 4703
Sincerely,
THOMAS E. PEREZ
Enclosures
UNITED STATES DEPARTMENT OF
LABOR
OFFICE OF THE SECRETARY
WASHINGTON, DC
In accordance with the provisions of
Section 3304(c) of the Internal Revenue
Code of 1986 (26 U.S.C. 3304(c)), I
hereby certify the following named
states to the Secretary of the Treasury
for the 12-month period ending on
October 31, 2015, in regard to the
unemployment compensation laws of
those states, which heretofore have been
approved under the Federal
Unemployment Tax Act:
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hamsphire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Utah
Vermont
Virginia
Virgin Islands
Washington
West Virginia
Wisconsin
Wyoming
This certification is for the maximum
normal credit allowable under Section
3302(a) of the Code.
Signed at Washington, DC, on October
31, 2015.
llllllllllllllllll
l
THOMAS E. PEREZ
E:\FR\FM\12NON1.SGM
12NON1
]]>Agencies
[Federal Register Volume 80, Number 218 (Thursday, November 12, 2015)]
[Notices]
[Pages 69979-69982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28727]
=======================================================================
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 15-21;
Christina B. Paylan, M.D.; Decision and Order
On July 1, 2015, Administrative Law Judge Christopher B. McNeil
issued the attached Recommended Decision. Therein, the ALJ found it
undisputed that Respondent's medical license has been suspended by the
Florida Department of Health, and that therefore, she ``is not
authorized to handle controlled substances in the State of Florida.''
R.D. 6. Because Respondent is no longer a ``practitioner'' within the
meaning of the Controlled Substances Act, the ALJ granted the
Government's Motion for Summary Disposition and recommended that her
registration be revoked \1\ and that any pending application to renew
or modify her registration be denied. Id.
---------------------------------------------------------------------------
\1\ According to the registration records of this Agency, of
which I take official notice, see 5 U.S.C. 556(e), Respondent's
registration does not expire until March 31, 2016.
---------------------------------------------------------------------------
Respondent filed Exceptions to the Decision and the Government
filed a Response to Respondent's Exceptions. Thereafter, the record was
forwarded to me for final agency action.
Having considered the record in its entirety, I have decided to
adopt the ALJ's factual finding, his conclusions of law, and
recommended order. A discussion of Respondent's Exceptions follows.
Respondent's first exception is based on the ALJ's finding that she
is ``no longer authorized by state law to handle controlled
substances.'' Exceptions at 1. Noting that the language of section
824(a)(3) authorizes the suspension or revocation of a registration
where a registrant ``is no longer authorized by State law to engage in
the manufacturing, distribution or dispensing of controlled
substances,'' Respondent argues that the ALJ lumped together ``[t]he
words `manufacturing, distribution or dispensing''' and that this
``violates the strict requirement for strict statutory construction.''
Id. Apparently, because the ALJ used the word ``handle'' rather than
``dispense'' to describe the authority Respondent no longer holds by
virtue of the suspension of her medical license, Respondent believes
that the Agency lacks authority to revoke her registration.
It is true that the Controlled Substances Act does not use the word
``handle'' in describing the activities that various categories of
registrants are authorized to engage in pursuant to their
registrations. Rather, the term is part of the Agency's vernacular.
Notwithstanding the language used by the ALJ, the Agency possesses
authority to revoke Respondent's registration because the record
establishes that she lacks authority to dispense controlled substances
in Florida, the State in which she is registered with DEA.
Specifically, the evidence shows that on October 28, 2014, the Florida
Department of Health ordered the emergency suspension of Respondent's
license ``to practice as a medical doctor'' after she was convicted in
state court of two felony offenses, including, inter alia, ``obtaining
a controlled substance by fraud.'' In re Emergency Suspension of the
License of Christina B. Paylan, M.D., 1-2 (Fla. Dept. of Health Oct.
28, 2014) (No. 2014-12284). Respondent therefore lacks authority under
Florida law to dispense controlled substances within the meaning of the
CSA. See Fla. Stat. Sec. 458.305(3) (defining the ``practice of
medicine'' as ``the diagnosis, treatment, operation, or prescription
for any human disease, pain, injury, deformity, or other physical or
mental condition''); id. Sec. 458.305(4) (defining ``physician'' as
``a person who is licensed to practice medicine in this state''); Sec.
456.065(2)(d)(1) (prohibiting the unlicensed practice of ``a health
care profession without an active, valid . . . license to practice that
professional'' which ``includes practicing on a suspended . . .
license'').
Respondent further argues that because she ``is not a dispensing
practitioner'' as defined by Florida law, she is outside of the scope
of section 824(a)(3). Exceptions at 5. Respondent
[[Page 69980]]
explains that under Florida law and regulation, a dispensing
practitioner ``is one who acts as a pharmacy and sells medications . .
. to patients'' and that she ``is not registered as a dispensing
practitioner . . . because she does not sell medications to patients
out of her office.'' Id.
Be that as it may, the CSA defines ``[t]he term `dispense' [to]
mean[] to deliver a controlled substance to an ultimate user . . . by,
or pursuant to the lawful order of, a practitioner, including the
prescribing and administering of a controlled substance.'' 21 U.S.C.
802(10) (emphasis added). Because the term ``dispense'' is not limited
to direct dispensing but includes prescribing and administering,
section 824(a)(3) authorizes the revocation of her registration based
on her lack of authority under Florida law to practice medicine.\2\
---------------------------------------------------------------------------
\2\ Respondent also disputes whether she ``is no longer
authorized by State law to engage in the . . . dispensing of
controlled substances.'' Exceptions at 2. Respondent argues that
``[t]here is no language in the Emergency Suspension Order issued by
the Florida Board of Medicine or any other evidence . . . that [she]
is `no longer authorized by state law to handle controlled
substances.' '' Id. She further argues that she still has her
medical license. Id. at 2-3.
While Respondent may still hold a medical license, it is
undisputed that the Board of Medicine has suspended it. Accordingly,
she is no longer authorized to practice medicine and prescribe
controlled substances. While Respondent further asserts that the
Board has yet to provide her with ``a full hearing,'' id. at 3, the
ALJ properly rejected this contention. See R.D. at n.13 (citing
cases holding that revocation is warranted even where a
practitioner's state authority has been summarily suspended and the
State has yet to provide a hearing).
---------------------------------------------------------------------------
Respondent also argues that revoking her registration would be
arbitrary and capricious because the ALJ ignored relevant evidence.
Exceptions at 4. According to Respondent, the relevant evidence is that
in her criminal case (which was the basis of the State Board's action),
she ``was not tried as a doctor, but rather as a layperson'' and that
``[t]he only fraud'' proved by the State was that she ``did not receive
permission from CM in order to write a prescription to order drugs for
an upcoming surgical procedure.'' Id.; see also id. at 5-6 (arguing
that state prosecutor committed ``prosecutorial misconduct'' in her
criminal trial when he/she ``argued that a doctor is not a doctor'').
The ALJ properly rejected this argument as it is a collateral
attack on her state court conviction and the State Board's suspension
order which cannot be litigated in a proceeding brought under section
304 of the CSA. See Kamal Tiwari, 76 FR 71604, 71606 (2011) (citing
cases); see also R.D. at 4 n.8 (citing cases). Rather, her challenges
to either her conviction or the suspension order must be litigated in
the forums provided by the State. Tiwari, 76 FR at 71606. Moreover, the
only evidence that is relevant in determining whether Respondent's
registration should be revoked is whether she ``is no longer authorized
by State law to engage in the . . . dispensing of controlled
substances.'' 21 U.S.C. 824(a)(3). Because it undisputed that
Respondent is no longer authorized under Florida law to dispense
controlled substances, she no longer meets the statutory definition of
a practitioner. See id. Sec. 802(21) (``The term `practitioner' means
a physician . . . or other person licensed, registered, or otherwise
permitted, by the United States or the jurisdiction in which [s]he
practices . . . to distribute, dispense, . . . [or] administer . . . a
controlled substances in the course of professional practice . . .
.''); id. Sec. 823(f) (``The Attorney General shall register
practitioners . . . to dispense . . . controlled substances . . . . if
the applicant is authorized to dispense . . . controlled substances
under the laws of the State in which [s]he practices''). Accordingly, I
adopt the ALJ's recommended order and will revoke Respondent's
registration and deny any pending applications to renew or modify her
registration. \3\
---------------------------------------------------------------------------
\3\ Respondent also argues that I should issue a writ of error
coram nobis to correct the error committed by the state court when
it allowed the prosecutor to present her to the jury ``as a
layperson, [and] not as a doctor.'' Exceptions at 7. This, however,
is just another variation of her collateral attack on the state
court proceeding, and in any event, Congress has not granted such
authority to DEA.
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Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) and
823(f), as well as 28 CFR 0.100(b), I order that DEA Certificate of
Registration BP7179496, issued to Christina Paylan, M.D., be, and it
hereby is, revoked. I further order that any pending application of
Christina Paylan, M.D., to renew or modify DEA Certificate of
Registration BP7179496, be, and it hereby is, denied. This order is
effective December 14, 2015.
Dated: November 2, 2015.
Chuck Rosenberg,
Acting Administrator.
Brian Bayly, Esq., for the Government.
Christina M. Paylan, pro se, for the Respondent.
ORDER GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY DISPOSITION AND
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED DECISION OF THE
ADMINISTRATIVE LAW JUDGE
Christopher B. McNeil, Administrative Law Judge. On April 29, 2015,
the Deputy Assistant Administrator of the Drug Enforcement
Administration issued an Order to Show Cause as to why the DEA should
not revoke DEA Certificate of Registration (COR) Number BP7179496
issued to Christina Paylan, M.D., the Respondent in this matter. The
Order seeks to revoke Respondent's registration pursuant to 21 U.S.C.
Sec. Sec. 824(a)(3) and 823(f)(4), and to deny any pending
applications for renewal or modification of such registration, and deny
any applications for any new DEA registrations pursuant to 21 U.S.C.
Sec. 823(f). As grounds for revocation, the Deputy Assistant
Administrator alleges that Respondent is without authority to handle
controlled substances in Florida, the state in which Dr. Paylan is
registered with the DEA. As further grounds for revocation, the Deputy
Assistant Administrator alleges that Dr. Paylan has been convicted of
felonies related to controlled substances and that her continued
registration is inconsistent with the public interest.
On May 8, 2015, the DEA's Office of Administrative Law Judges
received a notice that Dr. Paylan was served with the Order to Show
Cause on May 6, 2015.
On May 28, 2015, the DEA's Office of Administrative Law Judges
received Respondent's written request for a hearing, dated May 28,
2015.
Thereafter, on June 1, 2015, this Office issued an Order for
Briefing on Allegations Concerning Respondent's Lack of State
Authority. In the Order, I required the Government to submit evidence
and arguments to support the allegation that Respondent lacks state
authority to handle controlled substances and, if appropriate, file a
motion for summary disposition no later than 2:00 p.m. Eastern Daylight
Time (EDT) on June 15, 2015. Also in my June 1, 2015 Order, I allowed
the Respondent to file a response to the Government's motion for
summary disposition no later than 2:00 p.m. EDT on June 29, 2015.
On June 3, 2015, the Government timely filed its Motion for Summary
Disposition, along with its Brief in Support of the Order to Show Cause
Allegation That Respondent Lacks State Authority to Handle Controlled
Substances. In its filings, the
[[Page 69981]]
Government averred that on October 28, 2014, the State of Florida
Department of Health issued an Order of Emergency Suspension of License
(Suspension Order) of Dr. Paylan's medical license.\4\ Based on this
event, the Government argues that under applicable DEA precedent
Respondent's DEA COR should be revoked.
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\4\ Gov't Mot. For Summary Disp. at 2 & Attachment 1 (State of
Florida Department of Health Order of Emergency Suspension of
License).
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On June 29, 2015, the Respondent timely filed her response,
entitled Affidavit of Christina Paylan, MD in Support of Her Response
to the Government's Summary Disposition (Response). Dr. Paylan attached
to her Response a 187-page brief (Brief) that included exhibits in
support of her position. In her Brief, Dr. Paylan relies upon three
legal arguments. First, Dr. Paylan argues that collateral estoppel/res
judicata is applicable to this proceeding. Next, Dr. Paylan avers that
she received ineffective assistance from counsel in her criminal trial
which formed the basis of the State Medical Board's emergency order
suspending Dr. Paylan's license to practice medicine in the State of
Florida. Last, Dr. Paylan states that due to prosecutorial misconduct,
it was not her who was convicted in her criminal trial.
Notably, nowhere in her brief does Dr. Paylan claim that she has
state authority to handle controlled substances--the threshold issue in
this matter. To the contrary, Dr. Paylan's arguments center on the
alleged factual background of her criminal conviction, and fail to
contradict the basis upon which the Government seeks summary
disposition in this proceeding. Respondent has therefore failed to
rebut the substantial issue raised by the Government.
The Government asserts that Respondent's DEA Certificate of
Registration must be revoked because Respondent does not have a medical
license issued by the state in which she practices.\5\ This assertion
is significant because DEA precedent holds that a practitioner's DEA
Certificate of Registration for controlled substances must be summarily
revoked if the applicant is not authorized to handle controlled
substances in the state in which she maintains her DEA registration.\6\
Pursuant to 21 U.S.C. Sec. 823(f), only a ``practitioner'' may receive
a DEA registration. Under 21 U.S.C. Sec. 802(21), a ``practitioner''
must be ``licensed, registered, or otherwise permitted, by the United
States or the jurisdiction in which he practices or does research, to
distribute [or] dispense . . . controlled substance[s.]'' Given this
statutory language, the DEA Administrator does not have the authority
under the Controlled Substances Act to maintain a practitioner's
registration if that practitioner is not authorized to dispense
controlled substances.\7\
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\5\ Id.
\6\ See 21 U.S.C. 802(21), 823(f), 824(a)(3); see also House of
Medicine, 79 FR 4959, 4961 (2014); Deanwood Pharmacy, 68 FR 41662
(2003); Wayne D. Longmore, M.D., 77 FR 67,669 (2012); Alan H.
Olefsky, M.D., 72 FR 42,127 (2007); Layfe Robert Anthony, M.D., 67
FR 15,811 (2002); George Thomas, PA-C, 64 FR 15811 (1999); Shahid
Musud Siddiqui, M.D., 61 Fed. Reg 14818-02 (1996); Michael D.
Lawton, M.D., 59 FR 17792 (1994); Abraham A. Chaplan, M.D., 57 FR
55280 (1992); See also Bio Diagnosis Int'l, 78 FR 39327, 39331
(2013) (distinguishing distributor applicants from other
``practitioners'' in the context of summary disposition analysis).
\7\ See Abraham A. Chaplan, M.D., 57 FR 55,280, 55,280 (1992),
and cases cited therein. In Chaplan, DEA Administrator Robert C.
Bonner adopts the ALJ's opinion that ``the DEA lacks statutory power
to register a practitioner unless the practitioner holds state
authority to handle controlled substances.'' Id.
---------------------------------------------------------------------------
In her Response and Brief, Dr. Paylan counters the Government's
assertions arguing that collateral estoppel/res judicata should apply
to this proceeding, and requests that I ``fashion an order that is
something other than revocation, and more like a temporary suspension
and/or abeyance until these state issues of res judicata are fully
addressed before the ALJ in Tallahassee, and/or until a decision of the
State Appellate Court is rendered reversing the conviction.'' \8\ Dr.
Paylan alleges that the Board's Order of Emergency Suspension
determination was based on Dr. Paylan's conviction in a State criminal
trial for the same conduct she was previously exonerated of before the
Board.\9\ Dr. Paylan thus avers that res judicata should have applied
in the Board's emergency suspension orders. Dr. Paylan also argues that
``if the local DEA agent found Dr. Paylan to have engaged in no
wrongdoing at the time of the transaction, then Dr. Paylan, is at a
minimum, entitled to a collateral estoppel argument now.'' \10\
---------------------------------------------------------------------------
\8\ Resp. Br. at 12.
\9\ Resp. Br. at 7-8.
\10\ Resp. Br. at 10.
---------------------------------------------------------------------------
This Agency has held ``that a registrant cannot collaterally attack
the results of a state criminal or administrative proceeding in a
proceeding under section 304 of the CSA.'' \11\ Thus, in this
proceeding, Dr. Paylan is precluded from attacking the results of both
the Circuit Court of the Thirteenth Judicial Circuit in and for
Hillsborough County, Florida, and the Florida Department of Health
Order of Emergency Suspension. Similarly, a DEA agent's purported
inaction in pursuing Dr. Paylan for an alleged crime does not carry any
preclusive weight because it is not an issue that has been litigated.
Therefore, collateral estoppel is inapplicable to Dr. Paylan's
aforementioned claim. Thus, Dr. Paylan's collateral estoppel argument
fails.
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\11\ Sunil Bhasin, M.D., 72 FR 5,082, 5,083 (2007); see also
Shahid Musud Siddiqui, 61 FR 14818, 14,818-19 (1996); and Robert A.
Leslie, 60 FR 14,004, 14,005 (1995).
---------------------------------------------------------------------------
As for her res judicata claim, Dr. Paylan argues that the DEA had
knowledge of, but did not take action on, the event that Dr. Paylan was
convicted of in State court.\12\ Dr. Paylan represents that the Florida
State Administrative Law Judge assigned to the DOH v. Paylan Case
No:15-0429 issued an initial order recognizing the presence of res
judicata as an issue applicable to the administrative proceeding.\13\
But in this proceeding, Dr. Paylan herself notes ``the absence of a
formal proceeding by the DEA such as convening of this forum may
preclude the argument of res judicata.'' \14\
---------------------------------------------------------------------------
\12\ Resp. Br. at 10.
\13\ Resp. Br. at 8.
\14\ Resp. Br. at 9.
---------------------------------------------------------------------------
In this instance, the DEA is not relitigating a claim that was
previously heard, and it is not bringing a claim that could have been
litigated in a prior DEA proceeding in accordance with the doctrine of
res judicata.\15\ Rather, the event that served as the catalyst for the
Government's Order to Show Cause in this proceeding was the State of
Florida Department of Health Order of Emergency Suspension of License.
But the present proceeding has been convened for the purpose of
determining whether the Administrator should revoke the Respondent's
DEA Certificate of Registration pursuant to 21 U.S.C. 824(a)(3) and
823(f)(4), and whether the Administrator should deny any pending
applications for renewal or modification of such registration, and any
applications for new DEA registrations pursuant to 21 U.S.C. 823(f).
Absent the existence in this present proceeding of a claim that has
been previously litigated, or a claim that could have been litigated in
a prior proceeding, the doctrine of res judicata is inapplicable here.
---------------------------------------------------------------------------
\15\ OTSC at 1.
---------------------------------------------------------------------------
Dr. Paylan's second and third arguments, that she experienced
ineffective assistance of counsel in her state criminal proceeding, and
that her conviction was purportedly a person who was presented to the
jury as a non-doctor, i.e. not Dr. Paylan, fail because these arguments
do not relate to the issue of whether Dr. Paylan currently
[[Page 69982]]
has authority to handle controlled substances in the State of Florida.
For this reason, Dr. Paylan's second and third claims fall outside the
scope of this proceeding as well.
Last, while I am mindful of Dr. Paylan's request for a temporary
suspension or abeyance of these proceedings, the DEA has consistently
summarily revoked DEA certificates of registration based on state
medical board temporary suspension orders, and it has previously denied
staying its proceedings pending the outcome of a Respondent's appeal of
his state licensing authority's suspension of his license.\16\
---------------------------------------------------------------------------
\16\ See Steven I. Topel, M.D., 58 FR 37,509(1993)(revoking
Respondent's COR based on a temporary suspension order issued by the
Kentucky Board of Medical Licensure); see also Carmencita E.
Fallora, M.D., 60 FR 47,967, 47,968 (1995) (rejecting Respondent's
argument that DEA did not have legal authority under 21 U.S.C.
824(a)(3) to summarily revoke her DEA registration based on a state
medical board's temporary suspension order; See also Gary Alfred
Shearer, M.D., 78 FR 19,009, 19,012 (2013) (holding that
``[r]evocation of the DEA certificate is warranted even where a
practitioner's state authority has been summarily suspended and the
state has yet to provide the practitioner with a hearing to
challenge the state action at which he may ultimately prevail.''
Id.)
---------------------------------------------------------------------------
As detailed above, only a ``practitioner'' may receive a DEA
registration.\17\ Finding that Dr. Paylan is currently without license
to practice as a medical doctor, and thus is not authorized to handle
controlled substances in the State of Florida, I cannot and will not
recommend that these proceedings be held in abeyance, or that
Respondent's registration be suspended. I will instead recommend her
registration be revoked.
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\17\ In James L. Hooper, 76 FR 71, 371, 71,372 (2011), the
Administrator held that ``the controlling question is not whether a
practitioner's license to practice medicine in the state is
suspended or revoked; rather, it is whether the Respondent is
currently authorized to handle controlled substances in the state''
and ``even where a practitioner's state license has been suspended
for a period of certain duration, the practitioner no longer meets
the statutory definition of a practitioner.'' Id. (citing Anne Lazar
Thorn, M.D, 62 FR 12,847, 12,848 (1997).
---------------------------------------------------------------------------
Order Granting the Government's Motion for Summary Disposition and
Recommendation
I find there is no genuine dispute regarding whether Respondent is
a ``practitioner'' as that term is defined by 21 U.S.C. 802(21), and
that based on the record the Government has established, by at least a
preponderance of the evidence, that Respondent is not a practitioner
and is not authorized to dispense controlled substances in the state in
which she seeks to practice with a DEA Certificate of Registration. I
further find that the Respondent has failed to dispute this assertion.
Accordingly, I GRANT the Government's Motion for Summary Disposition.
Upon this finding, I ORDER that this case be forwarded to the
Administrator for final disposition and I recommended that Respondent's
DEA Certificate of Registration should be REVOKED and any pending
application for the renewal or modification of the same should be
DENIED.
Dated: July 1, 2015
s/Christopher B. McNeil
Administrative Law Judge
[FR Doc. 2015-28727 Filed 11-10-15; 8:45 am]
BILLING CODE 4410-09-P
