Phong Tran, M.D.; Decision and Order, 31070-31075 [2017-14070]
Download as PDF
31070
Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices
Animation L.L.C., Glendale, CA;
Microsoft Corporation, Redmond, WA;
Tongfang Global, Ltd. (Seiki), Diamond
Bar, CA; and Walt Disney Pictures,
Burbank, CA, have been dropped as
parties to this venture.
No other changes have been made in
either the membership or planned
activity of the group research project.
Membership in this group research
project remains open, and UHD Alliance
intends to file additional written
notifications disclosing all changes in
membership.
On June 17, 2015, UHD Alliance filed
its original notification pursuant to
Section 6(a) of the Act. The Department
of Justice published a notice in the
Federal Register pursuant to Section
6(b) of the Act on July 17, 2015 (80 FR
42537).
The last notification was filed with
the Department on March 9, 2017. A
notice was published in the Federal
Register pursuant to Section 6(b) of the
Act on April 10, 2017 (82 FR 17280).
Patricia A. Brink,
Director of Civil Enforcement, Antitrust
Division.
[FR Doc. 2017–14073 Filed 7–3–17; 8:45 am]
BILLING CODE P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 16–31]
Phong Tran, M.D.; Decision and Order
sradovich on DSK3GMQ082PROD with NOTICES
On June 29, 2016, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration (hereinafter, DEA or
Government), issued an Order to Show
Cause to Phong Tran, M.D. (hereinafter,
Respondent), the holder of 19
Certificates of Registration.1 Order to
1 The 19 Certificates of Registration referenced in
the Order to Show Cause are: FT4325242 in Vista,
California (expiration date: November 30, 2016);
FT4123422 in Garden Grove, California (expiration
date: November 30, 2016); FT4086888 in Chula
Vista, California (expiration date: November 30,
2016); FT4086876 in Escondido, California
(expiration date: November 30, 2016); FT4086698 in
San Diego, California (expiration date: November
30, 2016); FT4086686 in San Bernardino, California
(expiration date: November 30, 2016); FP4086864 in
Long Beach, California (expiration date: November
30, 2016); FT4046707 in Van Nuys, California
(expiration date: November 30, 2018); FT3965540 in
Anaheim, California (expiration date: November 30,
2018); FT4046543 in Temecula, California
(expiration date: November 30, 2018); BT3239945
in Westminster, California (expiration date:
November 30, 2018); FT4083111 in Downey,
California (expiration date: November 30, 2016);
FT4932097 in Rialto, California (expiration date:
November 30, 2017); FT4946957 in Indio, California
(expiration date: November 30, 2017); FT4946971 in
Palmdale, California (expiration date: November 30,
VerDate Sep<11>2014
17:57 Jul 03, 2017
Jkt 241001
Show Cause, at 1–3. Citing 21 U.S.C.
823(f) and 824(a)(3), the Show Cause
Order proposed the revocation of
Respondent’s 19 Certificates of
Registration on the ground that
Respondent does not have authority to
dispense controlled substances in the
State of California, the State in which he
is registered. Id. at 4.
As the jurisdictional basis for the
proceeding, the Show Cause Order
alleged that each of Respondent’s 19
Certificates of Registration ‘‘are current
and unexpired.’’ Order to Show Cause,
at 4. Respondent’s registrations
authorize him to dispense controlled
substances in Schedules II through V.
Government’s Motion for Summary
Disposition, Attachment 1, at 5–23.
As the substantive grounds for the
proceeding, the Show Cause Order
alleged that on or about December 9,
2015, Respondent was criminally
charged in the County of San Diego
Superior Court (hereinafter, Superior
Court) with 45 counts related to
unlawful billing under the California
Workers’ Compensation System and that
the charges were pending resolution. Id.
at 4. The Show Cause Order further
alleged that, in response to the criminal
charges, the Medical Board of California
(hereinafter, MBC) petitioned the
Superior Court for an order suspending
Respondent’s medical license during the
pendency of the criminal proceedings.
Id. The Show Cause Order alleged that,
on May 13, 2016, the Superior Court
issued an Order granting the MBC’s
petition ‘‘and thereby . . . indefinitely
suspended . . . [Respondent’s]
California medical license effective June
3, 2016.’’ Id. The Order to Show Cause
alleged that Respondent’s medical
license remained suspended and,
‘‘therefore, DEA must revoke . . .
[Respondent’s] DEA . . . [registrations]
based upon . . . [his] lack of authority
to handle controlled substances in the
State of California.’’ Id. (citing 21 U.S.C.
802(21), 823(f)(1), and 824(a)(3)).
The Show Cause Order notified
Respondent of his right to request a
hearing on the allegations or to submit
a written statement while waiving his
right to a hearing, the procedure for
electing either option, and the
consequences for failing to elect either
option. Id. at 4–5 (citing 21 CFR
1301.43). It also notified Respondent of
his right to submit a corrective action
2017); FT4963117 in Pasadena, California
(expiration date: November 30, 2017); FT4963129 in
Pomona, California (expiration date: November 30,
2017); FT4963131 in Hemet, California (expiration
date: November 30, 2017); and FT3933593 in San
Bernardino, California (expiration date: November
30, 2018). Order to Show Cause, at 1–3.
PO 00000
Frm 00032
Fmt 4703
Sfmt 4703
plan. Id. at 5 (citing 21 U.S.C.
824(c)(2)(C)).
By letter dated August 25, 2016,
Respondent requested a hearing stating
that ‘‘Dr. Tran’s medical license is still
active and valid, and not suspended as
alleged.’’ Hearing Request (August 25,
2016), at 1.
On August 29, 2016, Chief
Administrative Law Judge John J.
Mulrooney, II (hereinafter, CALJ) issued
an order setting September 9, 2016 as
the date for the Government to submit
evidence supporting the lack of state
authority allegation and for any party’s
motion for summary disposition to be
due. Order Directing the Filing of Proof
of Service, Evidence of Lack of State
Authority Allegation, and Briefing
Schedule, at 2.2
On September 9, 2016, the
Government filed its proof of service
evidence and Motion for Summary
Disposition. Government’s Proof of
Service Evidence and Motion for
Summary Disposition (hereinafter,
Government’s Motion). The
Government’s Motion argued that
Respondent was ‘‘without state
authorization to handle controlled
substances in California, and as [sic]
result, is not entitled to maintain his
DEA Certificates of Registration.’’ Id. at
1.
As support for its Motion, the
Government provided a sworn
Certification by the Chief of DEA’s
Registration and Program Support
Section concerning each of
Respondent’s DEA registrations in
California. Government’s Motion, at
Attachment 1 (Certification of
Registration History dated June 29,
2016). The Certification attached a copy
of each of Respondent’s DEA
registrations. Id. at 5–23. The
Government also provided the MBC’s
Notice ‘‘to recommend that the
[Superior] Court issue an Order
prohibiting . . . Phong Hung Tran, M.D.
. . . from practicing or attempting to
practice medicine as a physician in the
State of California, as a condition of any
bail or own recognizance release, during
the pendency of . . . criminal
proceedings.’’ Government’s Motion, at
Attachment 2 (Notice of PC23
Appearance and Recommendation at
PC1275 Bail Hearing dated April 12,
2016) (hereinafter, MBC Notice), at 2.
The Government’s Motion also attached
the MBC’s brief in support of the MBC
Notice. Government’s Motion, at
Attachment 3 (Memorandum in Support
of Penal Code Section 23 Appearance
2 The Order also set the date and time for the
Government to furnish proof of when it served the
Order to Show Cause on Respondent. Id. at 1.
E:\FR\FM\05JYN1.SGM
05JYN1
sradovich on DSK3GMQ082PROD with NOTICES
Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices
and Recommendation to the Court dated
April 12, 2016) (hereinafter, MBC
Memorandum).
Attached to the Government’s Motion
were two Orders of the Superior Court.
The first Order concerned Respondent’s
Condition of Bail Release and the
second denied reconsideration of the
first Order. Government’s Motion,
Attachment 4 (Conditions of Bail Order
dated May 13, 2016) (hereinafter,
Conditions of Bail Order) and
Government’s Motion, Attachment 5,
(Denial of Reconsideration of
Conditions of Bail Order dated August
17, 2016). Also attached to the
Government’s Motion were a ‘‘Public
Document List’’ and ‘‘Notification of
Court Order’’ concerning Respondent’s
license from the California Department
of Consumer Affairs. Government’s
Motion, Attachment 6. The September
8, 2016 Declaration of a DEA Diversion
Investigator from the San Diego Field
Division, also attached to the
Government’s Motion, described the
status of Respondent’s license as
‘‘indefinitely suspended’’ by the
Superior Court. Government’s Motion,
Attachment 8 (Declaration of Drug
Enforcement Administration Diversion
Investigator, dated September 8, 2016)
(hereinafter DI Declaration), at 2.3
As further support for the
Government’s Motion, the Government
provided the Declaration of a California
Deputy Attorney General who
represented the MBC. Government’s
Motion, Attachment 9 (hereinafter, MBC
Attorney Declaration).4 The MBC
Attorney Declaration’s heading, ‘‘United
States Department of Justice Drug
Enforcement Administration,’’ and
docket number, ‘‘16–31,’’ suggested that
it was created specifically for this
proceeding. Id. at 1.
The last attachment to the
Government’s Motion was Respondent’s
request for a hearing. Government’s
Motion, Attachment 10 (Hearing
Request dated August 25, 2016).
Attached to the Hearing Request was a
two-page printout from the California
Department of Consumer Affairs
(‘‘https://www.breEZe.ca.gov’’) titled
‘‘License Details’’ and dated August 25,
2016 (hereinafter, BreEZe License
Details). The printout showed
Respondent’s license status as ‘‘License
Renewed & Current’’ and secondary
status as ‘‘Limits On Practice.’’ The
document did not, however, state what
3 The seventh attachment to the Government’s
Motion was a Declaration of a DEA Diversion
Investigator from the Los Angeles Field Division
concerning service of the Show Cause Order on
Respondent.
4 The MBC Attorney Declaration referenced five
attachments. None, however, was provided.
VerDate Sep<11>2014
17:57 Jul 03, 2017
Jkt 241001
limits were imposed on Respondent’s
practice.
On September 27, 2016, Respondent
filed his opposition to the Government’s
Motion (hereinafter, Respondent’s
Opposition). Attached to Respondent’s
Opposition were the transcripts of two
Superior Court hearings. Respondent’s
Opposition, Exhibits 11 and 12
(Reporter’s Transcript of Proceedings for
the April 8, 2016 and May 13, 2016
hearings) (hereinafter, April Transcript
and May Transcript, respectively).5
Respondent stated that the MBC had
not suspended his medical license. He
asserted that, ‘‘The limitation on his
practice arises from a Court Order
issued by Judge Eyherabide on May 13,
2016, prohibiting respondent from
practicing medicine during the
pendency of his criminal matter as a
condition of his bail.’’ Respondent’s
Opposition, at 1.
By Order dated October 4, 2016, the
CALJ denied the Government’s Motion.
Order Denying the Government’s
Motion for Summary Disposition
(hereinafter, Order Denying
Government’s Motion). The Order stated
that ‘‘the . . . [Superior Court] clearly
imposed the prohibition on practice as
a condition of bail release—not as a
suspension or restriction on the
Respondent’s professional license
itself.’’ Order Denying Government’s
Motion, at 5. The Order cited
‘‘[v]erification information available on
the California Department of Consumer
Affairs BreEZe Web site’’ as providing
‘‘further support for the proposition that
the Superior Court’s proscription
against practicing medicine did not
change . . . [Respondent’s] medical
licensure status.’’ Id. at 5–6 (footnote
omitted). The Order concluded that,
‘‘Respondent (albeit at the peril of his
release conditions) maintains the state
authority requisite to retain his DEA
. . . [registrations]’’ and ‘‘the
Government has not met its burden to
prove that the Respondent lacks state
authority to handle controlled
substances in California, the sole basis
for its Motion.’’ Id. at 8. Thus, it denied
the Government’s Motion for Summary
Disposition noting that ‘‘the Respondent
has (inexplicably) not filed a motion for
summary disposition.’’ Id. at 8 n.20.6
5 The cover sheet for the May Transcript
mistakenly attributed its contents to the hearing on
April 8, 2016. The first page of the May transcript,
however, noted the actual May date of the
transcribed proceedings.
6 The CALJ also granted leave to the Government,
‘‘to the extent it is inclined to do so,’’ to file and
serve on Respondent a superseding Order to Show
Cause no later than October 14, 2016 ‘‘to allow the
Government to pursue administrative enforcement
in these proceedings.’’ Id. at 8 n.21 (emphasis in
original). By its filing dated October 14, 2016, the
PO 00000
Frm 00033
Fmt 4703
Sfmt 4703
31071
On October 17, 2016, the CALJ
conducted a status conference by
telephone with the Government and
counsel for Respondent. Order Granting
Respondent’s Request for a
Continuance, at 1. During the status
conference, counsel for Respondent
sought, and was granted with the
consent of the Government, a
continuance until the afternoon of
October 20, 2016 to file a motion for
summary disposition. Id. at 1.
By motion dated October 17, 2016,
Respondent requested dismissal of the
Order to Show Cause. Respondent’s
Motion for Summary Disposition
(hereinafter, Respondent’s Motion), at 1.
Attached to the Respondent’s Motion
were the April and May Superior Court
hearing transcripts, an updated but
substantively identical version of the
BreEZe License Details, and ‘‘License
Details—Public Record Actions—Court
Order’’ from the California Department
of Consumer Affairs concerning
Respondent’s license (hereinafter,
BreEZe License Details—Court Order).
The ‘‘Description of Action’’ section of
the BreEZe License Details—Court
Order stated that the ‘‘Superior Court of
California, County of San Diego, issued
an Order . . . . Dr. Tran shall not
practice medicine during the pendancy
[sic] of this case beginning 06/03/16.’’
In further support of his Motion,
Respondent stated that, ‘‘The Superior
Court of California’s Order of May 13,
2016 prohibited Respondent from
practicing medicine as a condition of
bail release pursuant to Penal Code
§ 1275, and not as a suspension or
restriction on his professional medical
license.’’ Respondent’s Motion, at 1.
Respondent’s Motion also stated that
‘‘Respondent’s professional medical
license itself is currently active and is
not restricted by the Court’s Order,’’ and
alleged that his medical license ‘‘entitles
him to handle controlled substances in
California.’’ Id.
The Government opposed the
Respondent’s Motion. Government’s
Response to Respondent’s Motion dated
October 27, 2016 (hereinafter,
Government’s Opposition). In its
Opposition, the Government admitted
that ‘‘Respondent currently retains his
state authority to practice medicine.’’ Id.
at 2. Referencing the second prong of 21
U.S.C. 824(a)(3), the Government
posited that ‘‘DEA is authorized to
revoke a DEA . . . [registration] even
‘. . . where suspension or revocation of
a practitioner’s state license or
Government stated that it was not issuing a
superseding Order to Show Cause concerning
Respondent. Government’s Notice Regarding the
Filing of Superseding Order to Show Cause, at 1.
E:\FR\FM\05JYN1.SGM
05JYN1
sradovich on DSK3GMQ082PROD with NOTICES
31072
Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices
registration has merely been
recommended by state authority,’ and
that DEA is not ‘. . . required to await
a final decision from the State before
acting to revoke’ ’’ a DEA registration.
Id. at 2 (citing Joseph Giacchino, M.D.,
76 FR 71,374 (2011)); see also id. at 4.
The Government’s Opposition further
stated that ‘‘the State of California (on
behalf of the Board) not only sought to
have the criminal court suspend
Respondent’s medical license during
pendency of criminal proceedings, but
by the express wording of its April 12,
2016 court filing recommended that the
court take this course of action.’’ 7 Id. at
6. The Government’s Opposition
concluded that ‘‘[t]he Board’s
recommendation of licensure
suspension as a condition of bail clearly
fits within the recommendation of
‘competent State authority’ wording of
section 824(a)(3).’’ Id.
On November 7, 2016, the CALJ
granted the Respondent’s Motion and
recommended that the Government’s
petition for revocation of Respondent’s
certificates of registration be denied.
Order Granting the Respondent’s
Motion for Summary Disposition
(hereinafter, Order Granting
Respondent’s Motion), at 15. In the
Order Granting Respondent’s Motion,
the CALJ, among other things, noted the
Government’s acknowledgement that
Respondent had state authority to
practice medicine, stated that the Order
to Show Cause was insufficient to notice
revocation of Respondent’s registrations
based on the second prong of 21 U.S.C.
824(a)(3), concluded that the
‘‘recommendation’’ in the second prong
of 21 U.S.C. 824(a)(3) relates only to a
practitioner’s DEA registration, and
determined that the MBC had not
recommended a ‘‘suspension’’ of
Respondent’s registrations. Id. at 3, 10,
12–13, and 13, respectively.
On November 25, 2016, the
Government filed Exceptions to the
Order Granting Respondent’s Motion.
Government’s Exceptions to Order
Granting Summary Disposition Motion
(hereinafter, Exceptions). In its
Exceptions, the Government addressed
whether the Order to Show Cause
sufficiently noticed action against
Respondent based on the second prong
of 21 U.S.C. 824(a)(3),8 whether a
prerequisite to invocation of the second
prong of 21 U.S.C. 824(a)(3) is a
7 The Government’s Opposition did not provide
the page number on which this ‘‘express wording’’
appeared. I carefully reviewed the document the
Government referenced multiple times and did not
locate the ‘‘express wording.’’
8 ‘‘. . . has had the suspension, revocation, or
denial of his registration recommended by
competent State authority . . .’’
VerDate Sep<11>2014
18:50 Jul 03, 2017
Jkt 241001
recommendation concerning a ‘‘DEA
registration,’’ and whether the California
State Medical Board recommended that
the Superior Court ‘‘suspend’’
Respondent’s medical license. Id. at 1–
9.
On December 2, 2016, the record was
forwarded to my Office for Final Agency
Action. Having considered the record
and the Order Granting Respondent’s
Motion in light of all relevant statutory,
regulatory, and case law authorities, I
conclude that there is no basis for
revoking Respondent’s registration on
the record before me.9 Thus, I agree
with the CALJ’s ultimate conclusions
that Respondent continues to have the
State authority required for his
registrations, and that the Government
has not established the predicates under
21 U.S.C. 824(a)(3) to warrant
revocation of Respondent’s
registrations.10
I make the following factual findings.
Findings of Fact
Respondent’s DEA Registrations
The Order to Show Cause alleged that
Respondent has held 19 registrations, all
with addresses in California. Order to
Show Cause, at 1–3. Based on the
evidence submitted by the Government,
I find that at least one of Respondent’s
registrations, FT3933593 in San
Bernardino, California (expiration date
November 30, 2018), is currently active.
Government’s Motion, at Attachment 1,
at 10.
Indictment of Respondent
On January 28, 2016, Respondent was
criminally charged with 45 felony
counts related to kickbacks, including
21 counts of workers’ compensation
fraud and 24 counts of insurance fraud.
MBC Memorandum, at 2, 3; May
Transcript, at 4–5, lines 23–2; DI
Declaration, at 2. According to a State
prosecutor, Respondent paid kickbacks
for access to patients on a per patient
basis. May Transcript, at 5, lines 12–28;
at 6, lines 9–10; at 7, lines 24–26. At the
May Superior Court hearing, the
prosecutor represented that the
individual to whom Respondent paid
the kickbacks was a chiropractor
9 It is noted, however, that the issuance of a new
Order to Show Cause would be appropriate if the
MBC were to suspend or revoke Respondent’s state
license, or if Respondent’s plea to, or conviction of,
criminal charges resulted in mandatory exclusion
under 42 U.S.C. 1320a–7(a). Further, the issuance
of a new Order to Show Cause based on 21 U.S.C.
824(a)(4) would be appropriate if properly
supported by evidence, including evidence gleaned
from the criminal proceedings against Respondent.
10 This matter raises novel issues, and my
analysis differs from the analysis in the Order
Granting Respondent’s Motion. Thus, I do not adopt
the Order Granting Respondent’s Motion.
PO 00000
Frm 00034
Fmt 4703
Sfmt 4703
working off Federal charges. Id. at 5,
lines 12–20. One of Respondent’s
Physician’s Assistants, the prosecutor
further alleged, would see up to 100
patients a day, once a month, and
provide the patients with prescription
medications and compound creams. Id.
at 6, lines 2–9. Respondent would bill
the insurance companies for the visits
and for the prescription medications
and compound creams, according to the
prosecutor. Id. at 6, lines 2–9, 16–25.
The prosecutor explained that billing for
compound creams was particularly
lucrative because there was no limit on
how much could be billed for a
compound cream. Id. at 7, lines 1–20.
The Evidence Offered by the Parties in
Support of Their Respective Motions
The Superior Court Hearing in April,
2016
On April 8, 2016, the Superior Court
held a hearing at the request of the
MBC. Attendees included State
prosecutors and attorneys for the MBC
and Respondent. According to its
attorney, the MBC ‘‘provided notice to
Respondent back in February that they
will be appearing at the . . . [California
Penal Code] 23 to make a
recommendation to provide information
. . ., not to ask for suspension, but to
place a condition on . . .
[Respondent’s] bail O.R. release.’’ 11
April Transcript, at 30, lines 21–28
(emphasis added). A prosecutor
explained that the California Attorney
General decided, on behalf of the MBC,
that ‘‘this is so important to public
safety that they are literally putting their
reputation on the line.’’ Id. at 23, lines
19–22. According to the prosecutor,
‘‘the Medical Board is basically here
telling you look, we may have to go
through a certain number of procedures
to do this, but we are asking you, in the
interim, tell this individual not to
practice medicine.’’ 12 Id. at 23, lines 22–
26; see also id. at 30, lines 16–18
(Respondent’s counsel stating that ‘‘the
11 The MBC’s February Notice to Respondent was
not put in the record of this proceeding.
California Penal Code 23 states, in pertinent part,
‘‘In any criminal proceeding against a person who
has been issued a license to engage in a business
or profession by a state agency pursuant to
provisions of the Business and Professions Code
. . ., the state agency which issued the license may
voluntarily appear to furnish pertinent information,
make recommendations regarding specific
conditions of probation, or provide any other
assistance necessary to promote the interests of
justice and protect the interests of the public, or
may be ordered by the court to do so, if the crime
charged is substantially related to the qualifications,
functions, or duties of a licensee.’’
‘‘O.R. release’’ refers to a bail release on one’s
own recognizance.
12 The prosecutor did not elaborate on what he
meant by to do ‘‘this.’’
E:\FR\FM\05JYN1.SGM
05JYN1
Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices
Medical Board has never once
independently tried to suspend . . .
[Respondent’s] license.’’).
The Superior Court began the April 8,
2016 hearing by stating that ‘‘apparently
there is a motion to continue.’’ Id. at 1,
lines 22–23. One of Respondent’s
attorneys acknowledged the motion
‘‘due to the unavailability of . . . a
witness allowed him to confront.’’ Id. at
1, lines 24–26. As the hearing
proceeded, Respondent’s counsel
argued that his client was entitled to
due process because placing a nomedical-practice bail condition on
Respondent’s medical license was
tantamount to placing it under interim
suspension. He stated that he brought a
‘‘motion’’ because ‘‘basically we are
talking about an interim suspension, it’s
another way of saying . . . a restriction
on someone’s license, and . . . that . . .
requires that the evidence . . . be
shown through affidavit . . . that the
. . . licensee [ ] have . . . an effective
right to confront those evidence.’’ 13 Id.
at 4–5, lines 28–14.
The Superior Court stated that a codefendant of Respondent had previously
raised the issue of ‘‘whether or not this
court should or has the power to
actually suspend’’ a doctor’s medical
license. Id. at 2, lines 7–8. The Court
indicated the response it had given to
the co-defendant:
sradovich on DSK3GMQ082PROD with NOTICES
I am not the Medical Board. I am not an
attorney licensing board, I am not a real
estate licensing board. The way I have framed
this, frankly, is whether or not as a condition,
. . . if somebody has a fourth DUI, and is
asking for their own recognizance, as a part
of bail there are conditions, one, they can’t
drive . . . if they make bail or are released.
Id. at 2, lines 16–25. At the hearing,
the Superior Court consistently
indicated that ‘‘the real issue here [ ] is
whether or not, as a condition of Dr.
Tran’s O.R. release, . . . he should be
practicing medicine, not that I would be
suspending a license. I don’t have any
power to suspend a license.’’ Id. at 3,
lines 4–8. Stating that ‘‘[t]here is no
right to confront . . . for the Court
considering safety purposes,’’ the
Superior Court rejected the due process
arguments of Respondent’s counsel and
invited them to appeal her ruling. Id. at
12, lines 2–4; see also id. at 7, lines 21–
24; id. at 11, lines 24–25. Throughout
the April hearing, the Superior Court
continuously and consistently stated
that she was not able to suspend a
license, whether the license in question
was a truck driver’s license, a license to
practice law, or a medical license. Id. at
3, lines 22–23; at 4, lines 22–23; at 6,
lines 12–15; at 9, lines 7–8.
The Superior Court explained the
extent of her authority with an analogy
to a person put on probation. She stated,
‘‘as a condition of probation, the Court
can impose, you can’t practice
accounting, you can’t drive a truck, you
can’t practice medicine . . . [and if] the
person doesn’t wish to accept it, they go
to prison.’’ Id. at 9, lines 10–14. She
provided another example:
[E]ven if I was placing a person on
probation, a lawyer, who committed fraud, I
can’t say and a condition of probation is I am
taking away your license. I don’t have a
power to take away a license. The State Bar
only has the power to take away a license.
I can say as a condition of probation, you are
not to practice law. He can still pay his Bar
dues. It means when he’s done with
probation in two years, he’s still a practicing
attorney.
Id. at 9, lines 15–23. The Superior Court
reiterated that she was not able to
‘‘yank’’ a person’s license and
‘‘[w]hether it’s as a condition of bail, or
probation, it’s a condition one can
accept or not accept.’’ Id. at 9, lines 24–
26.
In the criminal case against
Respondent, according to the Superior
Court, she was able to place a nomedical-practice condition on
Respondent’s own recognizance release
and she continued the hearing to May
13, 2016 for the purpose of determining
whether to do so. Id. at 29, lines 8–25;
see also id. at 10, lines 9–12.
Some statements at the April hearing
suggested that the MBC had filed a prehearing statement recommending the
suspension of Respondent’s medical
license. The Superior Court had stated,
‘‘Through the Attorney General’s office,
they 14 have requested, pursuant to
Penal Code Section 23, to bring me the
information . . . and in the moving
papers everybody talks about whether or
not this Court should or has the power
to actually suspend Dr. Tran’s license.’’
Id. at 2, lines 3–8; see also id. at 21,
lines 21–27 (A prosecutor stating that
‘‘[c]ommonly these questions are
initiated by a request by the Attorney
General, a recommendation as it’s
termed, . . . to take some action on a
person’s license. Just to be clear, . . .
we are not joining in the request that
any action be taken on the defendant’s
license.’’); May Transcript, at 2, lines
11–14 (Superior Court noting that
‘‘[t]here are numerous briefs here from
the People’’ and Respondent’s counsel
suggesting that, ‘‘That’s probably from
13 The motion Respondent’s counsel referenced
was not put in the record of this proceeding.
VerDate Sep<11>2014
17:57 Jul 03, 2017
Jkt 241001
PO 00000
14 The
reference to ‘‘they’’ is not specified.
Frm 00035
Fmt 4703
Sfmt 4703
31073
the prior set of P[enal] C[ode] 23 brief
[sic].’’).
Other statements tended to oppose
that possibility. April Transcript, at 19–
20, lines 26–3 (Superior Court stating
that, under Penal Code section 23, the
State agency that issued a license to a
criminal defendant may voluntarily
appear to ‘‘furnish pertinent
information, make recommendation
[sic], regarding specific conditions of
probation’’); id. at 30, lines 21–28 (MBC
provided notice to Respondent of its
appearance ‘‘to make a recommendation
to provide information . . . not to ask
for suspension, but to place a condition
on his bail O.R. release.’’).
If there were any written submission
by the MBC or a party in connection
with the April Superior Court hearing
recommending the suspension of
Respondent’s medical license or
registration, it is not in the record before
me.
Thus, based on the evidence in the
April Transcript, I conclude that the
Superior Court did not suspend or
revoke Respondent’s California medical
license at the Superior Court April
hearing, and that the suspension,
revocation, or denial of Respondent’s
medical license or registration was not
recommended by competent California
State authority in connection with the
Superior Court April hearing.
The Medical Board of California Notice
and Memorandum
In advance of the May Superior Court
hearing, the MBC filed the MBC Notice
and the MBC Memorandum. Supra. The
MBC Notice stated, in pertinent part,
that the MBC will appear before the
Superior Court ‘‘to recommend that the
Court issue an Order prohibiting . . .
[Respondent] from practicing or
attempting to practice medicine as a
physician in the State of California, as
a condition of any bail or own
recognizance release, during the
pendency of . . . [the] criminal
proceedings.’’ MBC Notice, at 2. The
MBC Notice explained the grounds for
its recommendation, stating that ‘‘if
allowed to continue to practice
medicine as a physician, . . .
[Respondent] poses a continuing danger
to the public health, safety, and
welfare.’’ Id. It referenced the Superior
Court’s statutory authority to consider
public protection when imposing bail
and own recognizance release
conditions. Id. The MBC Notice did not
state that the MBC was recommending
the suspension, revocation, or denial of
Respondent’s medical license or
registration.
The MBC Memorandum made
multiple points. First, it reiterated the
E:\FR\FM\05JYN1.SGM
05JYN1
sradovich on DSK3GMQ082PROD with NOTICES
31074
Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices
MBC’s recommendation to, and request
of, the Superior Court that Respondent,
‘‘as a condition of any bail or own
recognizance release, . . . be prohibited
from practicing medicine until
resolution of the . . . criminal
proceedings.’’ MBC Memorandum, at 2;
see also id. at 4, 8.
Second, it stated that Respondent
held a valid physician’s license that
‘‘will expire on January 31, 2018, unless
renewed.’’ Id. at 2. The MBC
Memorandum further explained that
Respondent’s physician’s license
enabled Respondent ‘‘to provide
medical services including issuing
prescriptions for controlled substances
to patients and conducting serious
surgeries.’’ Id.
Third, the MBC Memorandum stated
that the MBC was responsible for
enforcing the disciplinary and criminal
provisions of the California Medical
Practice Act, and that protecting the
public was its highest priority in
exercising its licensing, regulatory, and
disciplinary functions. Id. at 3. It
explained that it had the ‘‘power to
suspend, revoke, or otherwise limit
physicians and surgeons from practicing
medicine for, among other things,
unprofessional conduct and criminal
convictions substantially related to the
qualifications, functions, or duties of a
physician and surgeon.’’ Id.
Fourth, the MBC Memorandum cited
California Penal Code § 23, supra, as
authority for the MBC to appear in a
criminal proceeding against a person to
whom the MBC had issued a license to
‘‘furnish pertinent information, make
recommendations regarding specific
conditions of probation, or provide any
other assistance necessary to promote
the interests of justice and protect the
interest of the public.’’ Id. at 4. It also
cited California law to support the
reasonableness of a bail condition
prohibiting Respondent from practicing
medicine during the pendency of the
criminal case.15 MBC Memorandum, at
5–8.
Fifth, the MBC Memorandum stated
that, ‘‘The felony charges in this case are
extremely serious and are substantially
related to the qualifications, functions,
and duties of a physician and surgeon.’’
Id. at 6; see also id. at 8. It stated that
Respondent’s alleged conduct ‘‘is not
only unprofessional, but also dangerous,
and evinces poor character, a lack of
15 The MBC Memorandum cited Penal Code
§ 1275 (the public safety is the primary
consideration for judges in setting, reducing, or
denying bail) and California Penal Code § 1318
(interpreted to require defendants released on their
own recognizance to promise to obey all reasonable
conditions related to public safety).
VerDate Sep<11>2014
17:57 Jul 03, 2017
Jkt 241001
integrity and an inability or
unwillingness to follow the law.’’ Id.
Nowhere in the MBC Notice or the
MBC Memorandum did the MBC
recommend the suspension, revocation,
or denial of Respondent’s medical
license or registration.
The Superior Court Hearing in May,
2016
On May 13, 2016, the Superior Court
resumed the hearing it began in April.
The May Transcript contained more
information about the criminal charges
against Respondent and the MBC’s
request of the Superior Court.
The prosecutor stated that
Respondent was indicted for giving
kickbacks for access to patients and
filing fraud-based insurance claims
based on those kickbacks. May
Transcript, at 4–7, 11–12. The attorney
representing the MBC stated that, ‘‘[i]n
setting[,] reducing[,] and denying bail,
. . . [t]he public safety shall be the
primary consideration.’’ Id. at 13, lines
22–28. He argued:
When patients are sold for money, . . .
[Respondent is] going after patients, patients
aren’t coming after him, to seek medical help.
He’s seeking patients to make money. When
patients are sold as commodities, does that
pose a risk . . . to the public? Patient care?
And when their patient’s safety is at risk, is
that a risk of the public safety? Well of course
it is, Your Honor.
Id. at 14, lines 6–12. The MBC
attorney asserted that ‘‘[t]his was one of
the largest insurance and worker’s
compensation fraud cases in the history
of this county . . . , a sophisticated
large scale criminal enterprise.’’ Id. at
14, lines 24–28. He summarized what
the MBC sought from the Superior Court
when he stated, ‘‘We ask the Court, as
a condition of bail, to prohibit . . .
[Respondent] from practicing medicine
during the pendency of this case.’’ Id. at
15, lines 22–24.
The Superior Court ruled that ‘‘until
the case is resolved, . . . [Respondent]
not be allowed to practice medicine.
. . . So that will be a condition of his
continued bail.’’ Id. at 20, lines 11–14.
On August 17, 2016, the Court denied
Respondent’s request for
reconsideration of this ruling.
Government’s Motion, Attachment 5,
supra.
Thus, the Superior Court, at its May
hearing, conditioned Respondent’s ownrecognizance bail release on his not
practicing medicine. At the May
hearing, the Superior Court did not
suspend or revoke Respondent’s
California medical license, and no
competent California State authority
recommended the suspension,
PO 00000
Frm 00036
Fmt 4703
Sfmt 4703
revocation, or denial of Respondent’s
medical license or registration.
The MBC Attorney Declaration
The MBC Attorney Declaration
contained five numbered paragraphs.
The first paragraph stated that its
declarant worked in the California
Attorney General’s Health Quality
Enforcement Unit. MBC Attorney
Declaration, at 1. Its second paragraph
stated that Respondent was charged
with 45 counts of felony crimes related
to workers’ compensation and insurance
fraud. Id. Its third paragraph stated that,
in April of 2016, the MBC attorney
declarant ‘‘voluntarily appeared’’ on
behalf of the MBC and recommended
that the Superior Court issue an order,
as a condition of bail, prohibiting
Respondent from practicing medicine
during the pendency of the criminal
proceedings. Id. The fourth paragraph
stated that the Superior Court, ‘‘as a
condition of bail, . . . issued an order
prohibiting Dr. Tran from practicing
medicine, effective June 3, 2016, during
pendency of above criminal
proceedings.’’ Id. at 2. The last
paragraph stated that the Superior Court
denied Respondent’s request for
modification and/or removal of the bail
condition. Id. While the MBC Attorney
Declaration stated that it was sworn
under penalty of perjury, neither the
day of its execution in September, 2016
nor the signature on it was visible. For
these reasons, I cannot give any credit
to the MBC Attorney Declaration.16
The Status of Respondent’s California
Medical License
According to the evidence in the
record, Respondent and the Government
eventually agreed that Respondent’s
California medical license was
current.17 Respondent’s Motion, at 1
(‘‘Respondent’s professional medical
license itself is currently active . . . .’’);
Government’s Opposition, at 2 (‘‘[T]his
tribunal, as well as the Respondent in
his pending summary disposition
motion, have correctly pointed out that
Respondent currently retains his state
authority to practice medicine.’’); see
also id. at 5. Thus, there ended up being
no dispute that Respondent’s California
medical license was current. As of the
date of this Decision and Order,
Respondent’s California medical license
16 Even if the date and signature on it were
visible, the MBC Attorney Declaration contained no
evidence tending to show that competent California
State authority recommended the suspension,
revocation, or denial of Respondent’s medical
license or registration.
17 California medical license number 74233.
E:\FR\FM\05JYN1.SGM
05JYN1
Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices
is current; it has not been suspended or
revoked.18
sradovich on DSK3GMQ082PROD with NOTICES
Discussion 19
Under Section 304 of the Controlled
Substances Act (hereinafter, CSA), ‘‘[a]
registration . . . to . . . dispense a
controlled substance . . . may be . . .
revoked by the Attorney General upon
a finding that the registrant . . . has had
his State license or registration
suspended, revoked, or denied by
competent State authority and is no
longer authorized by State law to engage
in the . . . dispensing of controlled
substances . . . or has had the
suspension, revocation, or denial of his
registration recommended by competent
State authority . . . .’’ 21 U.S.C.
824(a)(3).
Moreover, DEA has long 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 registration. This rule
derives from the text of two provisions
of the CSA. First, Congress defined
‘‘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). Because Congress has
clearly mandated that a practitioner
possess state authority in order to be
deemed a practitioner under the CSA,
DEA has held repeatedly that revocation
of a practitioner’s registration is the
appropriate sanction whenever a
practitioner is no longer authorized to
dispense controlled substances under
18 According to the Web site https://
www.breEZe.ca.gov, Respondent’s medical license
has practice limits due to the Superior Court’s
imposition of an ‘‘own recognizance’’ bail
condition.
19 I need not address, and therefore decline to
address, much of the content of the Recommended
Decision, including most of the matters with which
the Government took exception: Whether the
Government sufficiently noticed action against
Respondent based on the second prong of 21 U.S.C.
824(a)(3) and whether a prerequisite for invocation
of the second prong of 21 U.S.C. 824(a)(3) is a
recommendation concerning a ‘‘DEA registration.’’
I need not reach either of these matters because I
find that the Government has not established that
there was a suspension, revocation, or denial
recommendation by competent State authority.
VerDate Sep<11>2014
17:57 Jul 03, 2017
Jkt 241001
the laws of the State in which he
practices medicine. Frederick Marsh
Blanton, 43 FR 27,616 (1978) (‘‘State
authorization to dispense or otherwise
handle controlled substances is a
prerequisite to the issuance and
maintenance of a Federal controlled
substances registration.’’). See also
James L. Hooper, 76 FR 71,371 (2011)
(collecting cases), pet. for rev. denied,
481 Fed. Appx. 826 (4th Cir. 2012).
Registrant’s California Medical License
Has Not Been Suspended or Revoked
In this case, the Government and
Respondent eventually agreed that
Respondent’s California medical license
was neither suspended nor revoked.
Respondent’s Motion, 1 (‘‘Respondent’s
professional medical license itself is
currently active . . . .’’); Government’s
Opposition, 2 (‘‘[T]his tribunal, as well
as the Respondent in his pending
summary disposition motion, have
correctly pointed out that Respondent
currently retains his state authority to
practice medicine.’’); see also
Government’s Opposition, 5. Thus,
there was no dispute between the
parties concerning the status of
Respondent’s California medical
license. I, therefore, conclude that the
first prong of 21 U.S.C. 824(a)(3) does
not support revocation of any of
Registrant’s registrations.
Competent State Authority Suspension
or Revocation Recommendation
The Government’s Opposition argues
that revocation of Respondent’s
registrations is appropriate under the
second prong of 21 U.S.C. 824(a)(3).
However, the Government cites no case
interpreting that provision. Given the
clear factual record before me, there is
no need to opine on it, including on the
requisite ‘‘recommendation’’ and
whether ‘‘registration’’ refers to a State
license/controlled substance registration
or a DEA registration. In other words,
the record simply contains no evidence
that a ‘‘competent State authority’’
‘‘recommended’’ the ‘‘suspension,
revocation, or denial’’ of any
‘‘registration.’’ Supra.
Having thoroughly examined all of
the evidence in the record, including
the evidence from the MBC, the
Superior Court, and every attorney
representing California, I found
evidence only that the MBC
recommended a no-medical-practice
condition on Respondent’s own
recognizance bail release. While the
record hints at the possibility that the
MBC made a suspension or revocation
recommendation, the record contains no
evidence of such a recommendation.
PO 00000
Frm 00037
Fmt 4703
Sfmt 9990
31075
The evidence in the record is clear
that the Superior Court did not believe
she had authority to suspend or revoke
a license of any sort, let alone a DEA
registration, and that she did not intend
her orders to do so. The evidence in the
record is equally clear that neither the
Superior Court, the prosecutor, nor the
MBC attorney recommended any
suspension, revocation, or denial of any
registration. Finally, the Government
did not cite any decision holding that a
no-medical-practice bail condition
constitutes a recommendation of
suspension, revocation, or denial.
In sum, viewing the evidence in the
record in the light most favorable to the
Government, the non-moving party, I
find no evidence, let alone substantial
evidence, that the factual predicates for
applying either prong of 21 U.S.C.
824(a)(3) have been established.20 Thus,
in this case, the record does not support
revocation of Respondent’s registrations
under either the first or second prong of
21 U.S.C. 824(a)(3).
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a)(3) and 28 CFR
0.100(b), I grant Respondent’s Motion
for Summary Disposition. I further order
the dismissal of the Order to Show
Cause. This order is effective August 4,
2017.
Dated: June 24, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017–14070 Filed 7–3–17; 8:45 am]
BILLING CODE 4410–09–P
20 Although the Government cited 21 U.S.C.
823(f) and 21 U.S.C. 823(f)(1) in the Order to Show
Cause, it did not squarely present, let alone
develop, the theory that Respondent’s registrations
should be revoked based on 21 U.S.C. 823(f)(1) in
conjunction with 21 U.S.C. 824(a)(4). Further, the
cases the Government cited in the Order to Show
Cause as providing ‘‘a summary of the legal basis
for this action’’ did not rely on 21 U.S.C. 824(a)(4)
and 823(f)(1) as legal bases.
When invited by the CALJ to amend the Order to
Show Cause, which included the possibility of
developing a revocation theory under 21 U.S.C.
824(a)(4) and 21 U.S.C. 823(f)(1), the Government
explicitly declined. Order Denying Government’s
Motion, at 8; Government’s Notice Regarding the
Filing of Superseding Order to Show Cause. As
warranted with the passage of time and the
garnering of relevant evidence, the Government is
free to issue a new Order to Show Cause concerning
Respondent’s registrations based on appropriate
legal authority. Supra.
E:\FR\FM\05JYN1.SGM
05JYN1
Agencies
[Federal Register Volume 82, Number 127 (Wednesday, July 5, 2017)]
[Notices]
[Pages 31070-31075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14070]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 16-31]
Phong Tran, M.D.; Decision and Order
On June 29, 2016, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause to Phong Tran, M.D.
(hereinafter, Respondent), the holder of 19 Certificates of
Registration.\1\ Order to Show Cause, at 1-3. Citing 21 U.S.C. 823(f)
and 824(a)(3), the Show Cause Order proposed the revocation of
Respondent's 19 Certificates of Registration on the ground that
Respondent does not have authority to dispense controlled substances in
the State of California, the State in which he is registered. Id. at 4.
---------------------------------------------------------------------------
\1\ The 19 Certificates of Registration referenced in the Order
to Show Cause are: FT4325242 in Vista, California (expiration date:
November 30, 2016); FT4123422 in Garden Grove, California
(expiration date: November 30, 2016); FT4086888 in Chula Vista,
California (expiration date: November 30, 2016); FT4086876 in
Escondido, California (expiration date: November 30, 2016);
FT4086698 in San Diego, California (expiration date: November 30,
2016); FT4086686 in San Bernardino, California (expiration date:
November 30, 2016); FP4086864 in Long Beach, California (expiration
date: November 30, 2016); FT4046707 in Van Nuys, California
(expiration date: November 30, 2018); FT3965540 in Anaheim,
California (expiration date: November 30, 2018); FT4046543 in
Temecula, California (expiration date: November 30, 2018); BT3239945
in Westminster, California (expiration date: November 30, 2018);
FT4083111 in Downey, California (expiration date: November 30,
2016); FT4932097 in Rialto, California (expiration date: November
30, 2017); FT4946957 in Indio, California (expiration date: November
30, 2017); FT4946971 in Palmdale, California (expiration date:
November 30, 2017); FT4963117 in Pasadena, California (expiration
date: November 30, 2017); FT4963129 in Pomona, California
(expiration date: November 30, 2017); FT4963131 in Hemet, California
(expiration date: November 30, 2017); and FT3933593 in San
Bernardino, California (expiration date: November 30, 2018). Order
to Show Cause, at 1-3.
---------------------------------------------------------------------------
As the jurisdictional basis for the proceeding, the Show Cause
Order alleged that each of Respondent's 19 Certificates of Registration
``are current and unexpired.'' Order to Show Cause, at 4. Respondent's
registrations authorize him to dispense controlled substances in
Schedules II through V. Government's Motion for Summary Disposition,
Attachment 1, at 5-23.
As the substantive grounds for the proceeding, the Show Cause Order
alleged that on or about December 9, 2015, Respondent was criminally
charged in the County of San Diego Superior Court (hereinafter,
Superior Court) with 45 counts related to unlawful billing under the
California Workers' Compensation System and that the charges were
pending resolution. Id. at 4. The Show Cause Order further alleged
that, in response to the criminal charges, the Medical Board of
California (hereinafter, MBC) petitioned the Superior Court for an
order suspending Respondent's medical license during the pendency of
the criminal proceedings. Id. The Show Cause Order alleged that, on May
13, 2016, the Superior Court issued an Order granting the MBC's
petition ``and thereby . . . indefinitely suspended . . .
[Respondent's] California medical license effective June 3, 2016.'' Id.
The Order to Show Cause alleged that Respondent's medical license
remained suspended and, ``therefore, DEA must revoke . . .
[Respondent's] DEA . . . [registrations] based upon . . . [his] lack of
authority to handle controlled substances in the State of California.''
Id. (citing 21 U.S.C. 802(21), 823(f)(1), and 824(a)(3)).
The Show Cause Order notified Respondent of his right to request a
hearing on the allegations or to submit a written statement while
waiving his right to a hearing, the procedure for electing either
option, and the consequences for failing to elect either option. Id. at
4-5 (citing 21 CFR 1301.43). It also notified Respondent of his right
to submit a corrective action plan. Id. at 5 (citing 21 U.S.C.
824(c)(2)(C)).
By letter dated August 25, 2016, Respondent requested a hearing
stating that ``Dr. Tran's medical license is still active and valid,
and not suspended as alleged.'' Hearing Request (August 25, 2016), at
1.
On August 29, 2016, Chief Administrative Law Judge John J.
Mulrooney, II (hereinafter, CALJ) issued an order setting September 9,
2016 as the date for the Government to submit evidence supporting the
lack of state authority allegation and for any party's motion for
summary disposition to be due. Order Directing the Filing of Proof of
Service, Evidence of Lack of State Authority Allegation, and Briefing
Schedule, at 2.\2\
---------------------------------------------------------------------------
\2\ The Order also set the date and time for the Government to
furnish proof of when it served the Order to Show Cause on
Respondent. Id. at 1.
---------------------------------------------------------------------------
On September 9, 2016, the Government filed its proof of service
evidence and Motion for Summary Disposition. Government's Proof of
Service Evidence and Motion for Summary Disposition (hereinafter,
Government's Motion). The Government's Motion argued that Respondent
was ``without state authorization to handle controlled substances in
California, and as [sic] result, is not entitled to maintain his DEA
Certificates of Registration.'' Id. at 1.
As support for its Motion, the Government provided a sworn
Certification by the Chief of DEA's Registration and Program Support
Section concerning each of Respondent's DEA registrations in
California. Government's Motion, at Attachment 1 (Certification of
Registration History dated June 29, 2016). The Certification attached a
copy of each of Respondent's DEA registrations. Id. at 5-23. The
Government also provided the MBC's Notice ``to recommend that the
[Superior] Court issue an Order prohibiting . . . Phong Hung Tran, M.D.
. . . from practicing or attempting to practice medicine as a physician
in the State of California, as a condition of any bail or own
recognizance release, during the pendency of . . . criminal
proceedings.'' Government's Motion, at Attachment 2 (Notice of PC23
Appearance and Recommendation at PC1275 Bail Hearing dated April 12,
2016) (hereinafter, MBC Notice), at 2. The Government's Motion also
attached the MBC's brief in support of the MBC Notice. Government's
Motion, at Attachment 3 (Memorandum in Support of Penal Code Section 23
Appearance
[[Page 31071]]
and Recommendation to the Court dated April 12, 2016) (hereinafter, MBC
Memorandum).
Attached to the Government's Motion were two Orders of the Superior
Court. The first Order concerned Respondent's Condition of Bail Release
and the second denied reconsideration of the first Order. Government's
Motion, Attachment 4 (Conditions of Bail Order dated May 13, 2016)
(hereinafter, Conditions of Bail Order) and Government's Motion,
Attachment 5, (Denial of Reconsideration of Conditions of Bail Order
dated August 17, 2016). Also attached to the Government's Motion were a
``Public Document List'' and ``Notification of Court Order'' concerning
Respondent's license from the California Department of Consumer
Affairs. Government's Motion, Attachment 6. The September 8, 2016
Declaration of a DEA Diversion Investigator from the San Diego Field
Division, also attached to the Government's Motion, described the
status of Respondent's license as ``indefinitely suspended'' by the
Superior Court. Government's Motion, Attachment 8 (Declaration of Drug
Enforcement Administration Diversion Investigator, dated September 8,
2016) (hereinafter DI Declaration), at 2.\3\
---------------------------------------------------------------------------
\3\ The seventh attachment to the Government's Motion was a
Declaration of a DEA Diversion Investigator from the Los Angeles
Field Division concerning service of the Show Cause Order on
Respondent.
---------------------------------------------------------------------------
As further support for the Government's Motion, the Government
provided the Declaration of a California Deputy Attorney General who
represented the MBC. Government's Motion, Attachment 9 (hereinafter,
MBC Attorney Declaration).\4\ The MBC Attorney Declaration's heading,
``United States Department of Justice Drug Enforcement
Administration,'' and docket number, ``16-31,'' suggested that it was
created specifically for this proceeding. Id. at 1.
---------------------------------------------------------------------------
\4\ The MBC Attorney Declaration referenced five attachments.
None, however, was provided.
---------------------------------------------------------------------------
The last attachment to the Government's Motion was Respondent's
request for a hearing. Government's Motion, Attachment 10 (Hearing
Request dated August 25, 2016). Attached to the Hearing Request was a
two-page printout from the California Department of Consumer Affairs
(``https://www.breEZe.ca.gov'') titled ``License Details'' and dated
August 25, 2016 (hereinafter, BreEZe License Details). The printout
showed Respondent's license status as ``License Renewed & Current'' and
secondary status as ``Limits On Practice.'' The document did not,
however, state what limits were imposed on Respondent's practice.
On September 27, 2016, Respondent filed his opposition to the
Government's Motion (hereinafter, Respondent's Opposition). Attached to
Respondent's Opposition were the transcripts of two Superior Court
hearings. Respondent's Opposition, Exhibits 11 and 12 (Reporter's
Transcript of Proceedings for the April 8, 2016 and May 13, 2016
hearings) (hereinafter, April Transcript and May Transcript,
respectively).\5\
---------------------------------------------------------------------------
\5\ The cover sheet for the May Transcript mistakenly attributed
its contents to the hearing on April 8, 2016. The first page of the
May transcript, however, noted the actual May date of the
transcribed proceedings.
---------------------------------------------------------------------------
Respondent stated that the MBC had not suspended his medical
license. He asserted that, ``The limitation on his practice arises from
a Court Order issued by Judge Eyherabide on May 13, 2016, prohibiting
respondent from practicing medicine during the pendency of his criminal
matter as a condition of his bail.'' Respondent's Opposition, at 1.
By Order dated October 4, 2016, the CALJ denied the Government's
Motion. Order Denying the Government's Motion for Summary Disposition
(hereinafter, Order Denying Government's Motion). The Order stated that
``the . . . [Superior Court] clearly imposed the prohibition on
practice as a condition of bail release--not as a suspension or
restriction on the Respondent's professional license itself.'' Order
Denying Government's Motion, at 5. The Order cited ``[v]erification
information available on the California Department of Consumer Affairs
BreEZe Web site'' as providing ``further support for the proposition
that the Superior Court's proscription against practicing medicine did
not change . . . [Respondent's] medical licensure status.'' Id. at 5-6
(footnote omitted). The Order concluded that, ``Respondent (albeit at
the peril of his release conditions) maintains the state authority
requisite to retain his DEA . . . [registrations]'' and ``the
Government has not met its burden to prove that the Respondent lacks
state authority to handle controlled substances in California, the sole
basis for its Motion.'' Id. at 8. Thus, it denied the Government's
Motion for Summary Disposition noting that ``the Respondent has
(inexplicably) not filed a motion for summary disposition.'' Id. at 8
n.20.\6\
---------------------------------------------------------------------------
\6\ The CALJ also granted leave to the Government, ``to the
extent it is inclined to do so,'' to file and serve on Respondent a
superseding Order to Show Cause no later than October 14, 2016 ``to
allow the Government to pursue administrative enforcement in these
proceedings.'' Id. at 8 n.21 (emphasis in original). By its filing
dated October 14, 2016, the Government stated that it was not
issuing a superseding Order to Show Cause concerning Respondent.
Government's Notice Regarding the Filing of Superseding Order to
Show Cause, at 1.
---------------------------------------------------------------------------
On October 17, 2016, the CALJ conducted a status conference by
telephone with the Government and counsel for Respondent. Order
Granting Respondent's Request for a Continuance, at 1. During the
status conference, counsel for Respondent sought, and was granted with
the consent of the Government, a continuance until the afternoon of
October 20, 2016 to file a motion for summary disposition. Id. at 1.
By motion dated October 17, 2016, Respondent requested dismissal of
the Order to Show Cause. Respondent's Motion for Summary Disposition
(hereinafter, Respondent's Motion), at 1. Attached to the Respondent's
Motion were the April and May Superior Court hearing transcripts, an
updated but substantively identical version of the BreEZe License
Details, and ``License Details--Public Record Actions--Court Order''
from the California Department of Consumer Affairs concerning
Respondent's license (hereinafter, BreEZe License Details--Court
Order). The ``Description of Action'' section of the BreEZe License
Details--Court Order stated that the ``Superior Court of California,
County of San Diego, issued an Order . . . . Dr. Tran shall not
practice medicine during the pendancy [sic] of this case beginning 06/
03/16.''
In further support of his Motion, Respondent stated that, ``The
Superior Court of California's Order of May 13, 2016 prohibited
Respondent from practicing medicine as a condition of bail release
pursuant to Penal Code Sec. 1275, and not as a suspension or
restriction on his professional medical license.'' Respondent's Motion,
at 1. Respondent's Motion also stated that ``Respondent's professional
medical license itself is currently active and is not restricted by the
Court's Order,'' and alleged that his medical license ``entitles him to
handle controlled substances in California.'' Id.
The Government opposed the Respondent's Motion. Government's
Response to Respondent's Motion dated October 27, 2016 (hereinafter,
Government's Opposition). In its Opposition, the Government admitted
that ``Respondent currently retains his state authority to practice
medicine.'' Id. at 2. Referencing the second prong of 21 U.S.C.
824(a)(3), the Government posited that ``DEA is authorized to revoke a
DEA . . . [registration] even `. . . where suspension or revocation of
a practitioner's state license or
[[Page 31072]]
registration has merely been recommended by state authority,' and that
DEA is not `. . . required to await a final decision from the State
before acting to revoke' '' a DEA registration. Id. at 2 (citing Joseph
Giacchino, M.D., 76 FR 71,374 (2011)); see also id. at 4.
The Government's Opposition further stated that ``the State of
California (on behalf of the Board) not only sought to have the
criminal court suspend Respondent's medical license during pendency of
criminal proceedings, but by the express wording of its April 12, 2016
court filing recommended that the court take this course of action.''
\7\ Id. at 6. The Government's Opposition concluded that ``[t]he
Board's recommendation of licensure suspension as a condition of bail
clearly fits within the recommendation of `competent State authority'
wording of section 824(a)(3).'' Id.
---------------------------------------------------------------------------
\7\ The Government's Opposition did not provide the page number
on which this ``express wording'' appeared. I carefully reviewed the
document the Government referenced multiple times and did not locate
the ``express wording.''
---------------------------------------------------------------------------
On November 7, 2016, the CALJ granted the Respondent's Motion and
recommended that the Government's petition for revocation of
Respondent's certificates of registration be denied. Order Granting the
Respondent's Motion for Summary Disposition (hereinafter, Order
Granting Respondent's Motion), at 15. In the Order Granting
Respondent's Motion, the CALJ, among other things, noted the
Government's acknowledgement that Respondent had state authority to
practice medicine, stated that the Order to Show Cause was insufficient
to notice revocation of Respondent's registrations based on the second
prong of 21 U.S.C. 824(a)(3), concluded that the ``recommendation'' in
the second prong of 21 U.S.C. 824(a)(3) relates only to a
practitioner's DEA registration, and determined that the MBC had not
recommended a ``suspension'' of Respondent's registrations. Id. at 3,
10, 12-13, and 13, respectively.
On November 25, 2016, the Government filed Exceptions to the Order
Granting Respondent's Motion. Government's Exceptions to Order Granting
Summary Disposition Motion (hereinafter, Exceptions). In its
Exceptions, the Government addressed whether the Order to Show Cause
sufficiently noticed action against Respondent based on the second
prong of 21 U.S.C. 824(a)(3),\8\ whether a prerequisite to invocation
of the second prong of 21 U.S.C. 824(a)(3) is a recommendation
concerning a ``DEA registration,'' and whether the California State
Medical Board recommended that the Superior Court ``suspend''
Respondent's medical license. Id. at 1-9.
---------------------------------------------------------------------------
\8\ ``. . . has had the suspension, revocation, or denial of his
registration recommended by competent State authority . . .''
---------------------------------------------------------------------------
On December 2, 2016, the record was forwarded to my Office for
Final Agency Action. Having considered the record and the Order
Granting Respondent's Motion in light of all relevant statutory,
regulatory, and case law authorities, I conclude that there is no basis
for revoking Respondent's registration on the record before me.\9\
Thus, I agree with the CALJ's ultimate conclusions that Respondent
continues to have the State authority required for his registrations,
and that the Government has not established the predicates under 21
U.S.C. 824(a)(3) to warrant revocation of Respondent's
registrations.\10\
---------------------------------------------------------------------------
\9\ It is noted, however, that the issuance of a new Order to
Show Cause would be appropriate if the MBC were to suspend or revoke
Respondent's state license, or if Respondent's plea to, or
conviction of, criminal charges resulted in mandatory exclusion
under 42 U.S.C. 1320a-7(a). Further, the issuance of a new Order to
Show Cause based on 21 U.S.C. 824(a)(4) would be appropriate if
properly supported by evidence, including evidence gleaned from the
criminal proceedings against Respondent.
\10\ This matter raises novel issues, and my analysis differs
from the analysis in the Order Granting Respondent's Motion. Thus, I
do not adopt the Order Granting Respondent's Motion.
---------------------------------------------------------------------------
I make the following factual findings.
Findings of Fact
Respondent's DEA Registrations
The Order to Show Cause alleged that Respondent has held 19
registrations, all with addresses in California. Order to Show Cause,
at 1-3. Based on the evidence submitted by the Government, I find that
at least one of Respondent's registrations, FT3933593 in San
Bernardino, California (expiration date November 30, 2018), is
currently active. Government's Motion, at Attachment 1, at 10.
Indictment of Respondent
On January 28, 2016, Respondent was criminally charged with 45
felony counts related to kickbacks, including 21 counts of workers'
compensation fraud and 24 counts of insurance fraud. MBC Memorandum, at
2, 3; May Transcript, at 4-5, lines 23-2; DI Declaration, at 2.
According to a State prosecutor, Respondent paid kickbacks for access
to patients on a per patient basis. May Transcript, at 5, lines 12-28;
at 6, lines 9-10; at 7, lines 24-26. At the May Superior Court hearing,
the prosecutor represented that the individual to whom Respondent paid
the kickbacks was a chiropractor working off Federal charges. Id. at 5,
lines 12-20. One of Respondent's Physician's Assistants, the prosecutor
further alleged, would see up to 100 patients a day, once a month, and
provide the patients with prescription medications and compound creams.
Id. at 6, lines 2-9. Respondent would bill the insurance companies for
the visits and for the prescription medications and compound creams,
according to the prosecutor. Id. at 6, lines 2-9, 16-25. The prosecutor
explained that billing for compound creams was particularly lucrative
because there was no limit on how much could be billed for a compound
cream. Id. at 7, lines 1-20.
The Evidence Offered by the Parties in Support of Their Respective
Motions
The Superior Court Hearing in April, 2016
On April 8, 2016, the Superior Court held a hearing at the request
of the MBC. Attendees included State prosecutors and attorneys for the
MBC and Respondent. According to its attorney, the MBC ``provided
notice to Respondent back in February that they will be appearing at
the . . . [California Penal Code] 23 to make a recommendation to
provide information . . ., not to ask for suspension, but to place a
condition on . . . [Respondent's] bail O.R. release.'' \11\ April
Transcript, at 30, lines 21-28 (emphasis added). A prosecutor explained
that the California Attorney General decided, on behalf of the MBC,
that ``this is so important to public safety that they are literally
putting their reputation on the line.'' Id. at 23, lines 19-22.
According to the prosecutor, ``the Medical Board is basically here
telling you look, we may have to go through a certain number of
procedures to do this, but we are asking you, in the interim, tell this
individual not to practice medicine.'' \12\ Id. at 23, lines 22-26; see
also id. at 30, lines 16-18 (Respondent's counsel stating that ``the
[[Page 31073]]
Medical Board has never once independently tried to suspend . . .
[Respondent's] license.'').
---------------------------------------------------------------------------
\11\ The MBC's February Notice to Respondent was not put in the
record of this proceeding.
California Penal Code 23 states, in pertinent part, ``In any
criminal proceeding against a person who has been issued a license
to engage in a business or profession by a state agency pursuant to
provisions of the Business and Professions Code . . ., the state
agency which issued the license may voluntarily appear to furnish
pertinent information, make recommendations regarding specific
conditions of probation, or provide any other assistance necessary
to promote the interests of justice and protect the interests of the
public, or may be ordered by the court to do so, if the crime
charged is substantially related to the qualifications, functions,
or duties of a licensee.''
``O.R. release'' refers to a bail release on one's own
recognizance.
\12\ The prosecutor did not elaborate on what he meant by to do
``this.''
---------------------------------------------------------------------------
The Superior Court began the April 8, 2016 hearing by stating that
``apparently there is a motion to continue.'' Id. at 1, lines 22-23.
One of Respondent's attorneys acknowledged the motion ``due to the
unavailability of . . . a witness allowed him to confront.'' Id. at 1,
lines 24-26. As the hearing proceeded, Respondent's counsel argued that
his client was entitled to due process because placing a no-medical-
practice bail condition on Respondent's medical license was tantamount
to placing it under interim suspension. He stated that he brought a
``motion'' because ``basically we are talking about an interim
suspension, it's another way of saying . . . a restriction on someone's
license, and . . . that . . . requires that the evidence . . . be shown
through affidavit . . . that the . . . licensee [ ] have . . . an
effective right to confront those evidence.'' \13\ Id. at 4-5, lines
28-14.
---------------------------------------------------------------------------
\13\ The motion Respondent's counsel referenced was not put in
the record of this proceeding.
---------------------------------------------------------------------------
The Superior Court stated that a co-defendant of Respondent had
previously raised the issue of ``whether or not this court should or
has the power to actually suspend'' a doctor's medical license. Id. at
2, lines 7-8. The Court indicated the response it had given to the co-
defendant:
I am not the Medical Board. I am not an attorney licensing
board, I am not a real estate licensing board. The way I have framed
this, frankly, is whether or not as a condition, . . . if somebody
has a fourth DUI, and is asking for their own recognizance, as a
part of bail there are conditions, one, they can't drive . . . if
they make bail or are released.
Id. at 2, lines 16-25. At the hearing, the Superior Court
consistently indicated that ``the real issue here [ ] is whether or
not, as a condition of Dr. Tran's O.R. release, . . . he should be
practicing medicine, not that I would be suspending a license. I don't
have any power to suspend a license.'' Id. at 3, lines 4-8. Stating
that ``[t]here is no right to confront . . . for the Court considering
safety purposes,'' the Superior Court rejected the due process
arguments of Respondent's counsel and invited them to appeal her
ruling. Id. at 12, lines 2-4; see also id. at 7, lines 21-24; id. at
11, lines 24-25. Throughout the April hearing, the Superior Court
continuously and consistently stated that she was not able to suspend a
license, whether the license in question was a truck driver's license,
a license to practice law, or a medical license. Id. at 3, lines 22-23;
at 4, lines 22-23; at 6, lines 12-15; at 9, lines 7-8.
The Superior Court explained the extent of her authority with an
analogy to a person put on probation. She stated, ``as a condition of
probation, the Court can impose, you can't practice accounting, you
can't drive a truck, you can't practice medicine . . . [and if] the
person doesn't wish to accept it, they go to prison.'' Id. at 9, lines
10-14. She provided another example:
[E]ven if I was placing a person on probation, a lawyer, who
committed fraud, I can't say and a condition of probation is I am
taking away your license. I don't have a power to take away a
license. The State Bar only has the power to take away a license. I
can say as a condition of probation, you are not to practice law. He
can still pay his Bar dues. It means when he's done with probation
in two years, he's still a practicing attorney.
Id. at 9, lines 15-23. The Superior Court reiterated that she was not
able to ``yank'' a person's license and ``[w]hether it's as a condition
of bail, or probation, it's a condition one can accept or not accept.''
Id. at 9, lines 24-26.
In the criminal case against Respondent, according to the Superior
Court, she was able to place a no-medical-practice condition on
Respondent's own recognizance release and she continued the hearing to
May 13, 2016 for the purpose of determining whether to do so. Id. at
29, lines 8-25; see also id. at 10, lines 9-12.
Some statements at the April hearing suggested that the MBC had
filed a pre-hearing statement recommending the suspension of
Respondent's medical license. The Superior Court had stated, ``Through
the Attorney General's office, they \14\ have requested, pursuant to
Penal Code Section 23, to bring me the information . . . and in the
moving papers everybody talks about whether or not this Court should or
has the power to actually suspend Dr. Tran's license.'' Id. at 2, lines
3-8; see also id. at 21, lines 21-27 (A prosecutor stating that
``[c]ommonly these questions are initiated by a request by the Attorney
General, a recommendation as it's termed, . . . to take some action on
a person's license. Just to be clear, . . . we are not joining in the
request that any action be taken on the defendant's license.''); May
Transcript, at 2, lines 11-14 (Superior Court noting that ``[t]here are
numerous briefs here from the People'' and Respondent's counsel
suggesting that, ``That's probably from the prior set of P[enal] C[ode]
23 brief [sic].'').
---------------------------------------------------------------------------
\14\ The reference to ``they'' is not specified.
---------------------------------------------------------------------------
Other statements tended to oppose that possibility. April
Transcript, at 19-20, lines 26-3 (Superior Court stating that, under
Penal Code section 23, the State agency that issued a license to a
criminal defendant may voluntarily appear to ``furnish pertinent
information, make recommendation [sic], regarding specific conditions
of probation''); id. at 30, lines 21-28 (MBC provided notice to
Respondent of its appearance ``to make a recommendation to provide
information . . . not to ask for suspension, but to place a condition
on his bail O.R. release.'').
If there were any written submission by the MBC or a party in
connection with the April Superior Court hearing recommending the
suspension of Respondent's medical license or registration, it is not
in the record before me.
Thus, based on the evidence in the April Transcript, I conclude
that the Superior Court did not suspend or revoke Respondent's
California medical license at the Superior Court April hearing, and
that the suspension, revocation, or denial of Respondent's medical
license or registration was not recommended by competent California
State authority in connection with the Superior Court April hearing.
The Medical Board of California Notice and Memorandum
In advance of the May Superior Court hearing, the MBC filed the MBC
Notice and the MBC Memorandum. Supra. The MBC Notice stated, in
pertinent part, that the MBC will appear before the Superior Court ``to
recommend that the Court issue an Order prohibiting . . . [Respondent]
from practicing or attempting to practice medicine as a physician in
the State of California, as a condition of any bail or own recognizance
release, during the pendency of . . . [the] criminal proceedings.'' MBC
Notice, at 2. The MBC Notice explained the grounds for its
recommendation, stating that ``if allowed to continue to practice
medicine as a physician, . . . [Respondent] poses a continuing danger
to the public health, safety, and welfare.'' Id. It referenced the
Superior Court's statutory authority to consider public protection when
imposing bail and own recognizance release conditions. Id. The MBC
Notice did not state that the MBC was recommending the suspension,
revocation, or denial of Respondent's medical license or registration.
The MBC Memorandum made multiple points. First, it reiterated the
[[Page 31074]]
MBC's recommendation to, and request of, the Superior Court that
Respondent, ``as a condition of any bail or own recognizance release, .
. . be prohibited from practicing medicine until resolution of the . .
. criminal proceedings.'' MBC Memorandum, at 2; see also id. at 4, 8.
Second, it stated that Respondent held a valid physician's license
that ``will expire on January 31, 2018, unless renewed.'' Id. at 2. The
MBC Memorandum further explained that Respondent's physician's license
enabled Respondent ``to provide medical services including issuing
prescriptions for controlled substances to patients and conducting
serious surgeries.'' Id.
Third, the MBC Memorandum stated that the MBC was responsible for
enforcing the disciplinary and criminal provisions of the California
Medical Practice Act, and that protecting the public was its highest
priority in exercising its licensing, regulatory, and disciplinary
functions. Id. at 3. It explained that it had the ``power to suspend,
revoke, or otherwise limit physicians and surgeons from practicing
medicine for, among other things, unprofessional conduct and criminal
convictions substantially related to the qualifications, functions, or
duties of a physician and surgeon.'' Id.
Fourth, the MBC Memorandum cited California Penal Code Sec. 23,
supra, as authority for the MBC to appear in a criminal proceeding
against a person to whom the MBC had issued a license to ``furnish
pertinent information, make recommendations regarding specific
conditions of probation, or provide any other assistance necessary to
promote the interests of justice and protect the interest of the
public.'' Id. at 4. It also cited California law to support the
reasonableness of a bail condition prohibiting Respondent from
practicing medicine during the pendency of the criminal case.\15\ MBC
Memorandum, at 5-8.
---------------------------------------------------------------------------
\15\ The MBC Memorandum cited Penal Code Sec. 1275 (the public
safety is the primary consideration for judges in setting, reducing,
or denying bail) and California Penal Code Sec. 1318 (interpreted
to require defendants released on their own recognizance to promise
to obey all reasonable conditions related to public safety).
---------------------------------------------------------------------------
Fifth, the MBC Memorandum stated that, ``The felony charges in this
case are extremely serious and are substantially related to the
qualifications, functions, and duties of a physician and surgeon.'' Id.
at 6; see also id. at 8. It stated that Respondent's alleged conduct
``is not only unprofessional, but also dangerous, and evinces poor
character, a lack of integrity and an inability or unwillingness to
follow the law.'' Id.
Nowhere in the MBC Notice or the MBC Memorandum did the MBC
recommend the suspension, revocation, or denial of Respondent's medical
license or registration.
The Superior Court Hearing in May, 2016
On May 13, 2016, the Superior Court resumed the hearing it began in
April. The May Transcript contained more information about the criminal
charges against Respondent and the MBC's request of the Superior Court.
The prosecutor stated that Respondent was indicted for giving
kickbacks for access to patients and filing fraud-based insurance
claims based on those kickbacks. May Transcript, at 4-7, 11-12. The
attorney representing the MBC stated that, ``[i]n setting[,]
reducing[,] and denying bail, . . . [t]he public safety shall be the
primary consideration.'' Id. at 13, lines 22-28. He argued:
When patients are sold for money, . . . [Respondent is] going
after patients, patients aren't coming after him, to seek medical
help. He's seeking patients to make money. When patients are sold as
commodities, does that pose a risk . . . to the public? Patient
care? And when their patient's safety is at risk, is that a risk of
the public safety? Well of course it is, Your Honor.
Id. at 14, lines 6-12. The MBC attorney asserted that ``[t]his was
one of the largest insurance and worker's compensation fraud cases in
the history of this county . . . , a sophisticated large scale criminal
enterprise.'' Id. at 14, lines 24-28. He summarized what the MBC sought
from the Superior Court when he stated, ``We ask the Court, as a
condition of bail, to prohibit . . . [Respondent] from practicing
medicine during the pendency of this case.'' Id. at 15, lines 22-24.
The Superior Court ruled that ``until the case is resolved, . . .
[Respondent] not be allowed to practice medicine. . . . So that will be
a condition of his continued bail.'' Id. at 20, lines 11-14. On August
17, 2016, the Court denied Respondent's request for reconsideration of
this ruling. Government's Motion, Attachment 5, supra.
Thus, the Superior Court, at its May hearing, conditioned
Respondent's own-recognizance bail release on his not practicing
medicine. At the May hearing, the Superior Court did not suspend or
revoke Respondent's California medical license, and no competent
California State authority recommended the suspension, revocation, or
denial of Respondent's medical license or registration.
The MBC Attorney Declaration
The MBC Attorney Declaration contained five numbered paragraphs.
The first paragraph stated that its declarant worked in the California
Attorney General's Health Quality Enforcement Unit. MBC Attorney
Declaration, at 1. Its second paragraph stated that Respondent was
charged with 45 counts of felony crimes related to workers'
compensation and insurance fraud. Id. Its third paragraph stated that,
in April of 2016, the MBC attorney declarant ``voluntarily appeared''
on behalf of the MBC and recommended that the Superior Court issue an
order, as a condition of bail, prohibiting Respondent from practicing
medicine during the pendency of the criminal proceedings. Id. The
fourth paragraph stated that the Superior Court, ``as a condition of
bail, . . . issued an order prohibiting Dr. Tran from practicing
medicine, effective June 3, 2016, during pendency of above criminal
proceedings.'' Id. at 2. The last paragraph stated that the Superior
Court denied Respondent's request for modification and/or removal of
the bail condition. Id. While the MBC Attorney Declaration stated that
it was sworn under penalty of perjury, neither the day of its execution
in September, 2016 nor the signature on it was visible. For these
reasons, I cannot give any credit to the MBC Attorney Declaration.\16\
---------------------------------------------------------------------------
\16\ Even if the date and signature on it were visible, the MBC
Attorney Declaration contained no evidence tending to show that
competent California State authority recommended the suspension,
revocation, or denial of Respondent's medical license or
registration.
---------------------------------------------------------------------------
The Status of Respondent's California Medical License
According to the evidence in the record, Respondent and the
Government eventually agreed that Respondent's California medical
license was current.\17\ Respondent's Motion, at 1 (``Respondent's
professional medical license itself is currently active . . . .'');
Government's Opposition, at 2 (``[T]his tribunal, as well as the
Respondent in his pending summary disposition motion, have correctly
pointed out that Respondent currently retains his state authority to
practice medicine.''); see also id. at 5. Thus, there ended up being no
dispute that Respondent's California medical license was current. As of
the date of this Decision and Order, Respondent's California medical
license
[[Page 31075]]
is current; it has not been suspended or revoked.\18\
---------------------------------------------------------------------------
\17\ California medical license number 74233.
\18\ According to the Web site https://www.breEZe.ca.gov,
Respondent's medical license has practice limits due to the Superior
Court's imposition of an ``own recognizance'' bail condition.
---------------------------------------------------------------------------
Discussion \19\
---------------------------------------------------------------------------
\19\ I need not address, and therefore decline to address, much
of the content of the Recommended Decision, including most of the
matters with which the Government took exception: Whether the
Government sufficiently noticed action against Respondent based on
the second prong of 21 U.S.C. 824(a)(3) and whether a prerequisite
for invocation of the second prong of 21 U.S.C. 824(a)(3) is a
recommendation concerning a ``DEA registration.'' I need not reach
either of these matters because I find that the Government has not
established that there was a suspension, revocation, or denial
recommendation by competent State authority.
---------------------------------------------------------------------------
Under Section 304 of the Controlled Substances Act (hereinafter,
CSA), ``[a] registration . . . to . . . dispense a controlled substance
. . . may be . . . revoked by the Attorney General upon a finding that
the registrant . . . has had his State license or registration
suspended, revoked, or denied by competent State authority and is no
longer authorized by State law to engage in the . . . dispensing of
controlled substances . . . or has had the suspension, revocation, or
denial of his registration recommended by competent State authority . .
. .'' 21 U.S.C. 824(a)(3).
Moreover, DEA has long 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 registration. This rule
derives from the text of two provisions of the CSA. First, Congress
defined ``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). Because Congress has clearly mandated that a
practitioner possess state authority in order to be deemed a
practitioner under the CSA, DEA has held repeatedly that revocation of
a practitioner's registration is the appropriate sanction whenever a
practitioner is no longer authorized to dispense controlled substances
under the laws of the State in which he practices medicine. Frederick
Marsh Blanton, 43 FR 27,616 (1978) (``State authorization to dispense
or otherwise handle controlled substances is a prerequisite to the
issuance and maintenance of a Federal controlled substances
registration.''). See also James L. Hooper, 76 FR 71,371 (2011)
(collecting cases), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir.
2012).
Registrant's California Medical License Has Not Been Suspended or
Revoked
In this case, the Government and Respondent eventually agreed that
Respondent's California medical license was neither suspended nor
revoked. Respondent's Motion, 1 (``Respondent's professional medical
license itself is currently active . . . .''); Government's Opposition,
2 (``[T]his tribunal, as well as the Respondent in his pending summary
disposition motion, have correctly pointed out that Respondent
currently retains his state authority to practice medicine.''); see
also Government's Opposition, 5. Thus, there was no dispute between the
parties concerning the status of Respondent's California medical
license. I, therefore, conclude that the first prong of 21 U.S.C.
824(a)(3) does not support revocation of any of Registrant's
registrations.
Competent State Authority Suspension or Revocation Recommendation
The Government's Opposition argues that revocation of Respondent's
registrations is appropriate under the second prong of 21 U.S.C.
824(a)(3). However, the Government cites no case interpreting that
provision. Given the clear factual record before me, there is no need
to opine on it, including on the requisite ``recommendation'' and
whether ``registration'' refers to a State license/controlled substance
registration or a DEA registration. In other words, the record simply
contains no evidence that a ``competent State authority''
``recommended'' the ``suspension, revocation, or denial'' of any
``registration.'' Supra.
Having thoroughly examined all of the evidence in the record,
including the evidence from the MBC, the Superior Court, and every
attorney representing California, I found evidence only that the MBC
recommended a no-medical-practice condition on Respondent's own
recognizance bail release. While the record hints at the possibility
that the MBC made a suspension or revocation recommendation, the record
contains no evidence of such a recommendation.
The evidence in the record is clear that the Superior Court did not
believe she had authority to suspend or revoke a license of any sort,
let alone a DEA registration, and that she did not intend her orders to
do so. The evidence in the record is equally clear that neither the
Superior Court, the prosecutor, nor the MBC attorney recommended any
suspension, revocation, or denial of any registration. Finally, the
Government did not cite any decision holding that a no-medical-practice
bail condition constitutes a recommendation of suspension, revocation,
or denial.
In sum, viewing the evidence in the record in the light most
favorable to the Government, the non-moving party, I find no evidence,
let alone substantial evidence, that the factual predicates for
applying either prong of 21 U.S.C. 824(a)(3) have been established.\20\
Thus, in this case, the record does not support revocation of
Respondent's registrations under either the first or second prong of 21
U.S.C. 824(a)(3).
---------------------------------------------------------------------------
\20\ Although the Government cited 21 U.S.C. 823(f) and 21
U.S.C. 823(f)(1) in the Order to Show Cause, it did not squarely
present, let alone develop, the theory that Respondent's
registrations should be revoked based on 21 U.S.C. 823(f)(1) in
conjunction with 21 U.S.C. 824(a)(4). Further, the cases the
Government cited in the Order to Show Cause as providing ``a summary
of the legal basis for this action'' did not rely on 21 U.S.C.
824(a)(4) and 823(f)(1) as legal bases.
When invited by the CALJ to amend the Order to Show Cause, which
included the possibility of developing a revocation theory under 21
U.S.C. 824(a)(4) and 21 U.S.C. 823(f)(1), the Government explicitly
declined. Order Denying Government's Motion, at 8; Government's
Notice Regarding the Filing of Superseding Order to Show Cause. As
warranted with the passage of time and the garnering of relevant
evidence, the Government is free to issue a new Order to Show Cause
concerning Respondent's registrations based on appropriate legal
authority. Supra.
---------------------------------------------------------------------------
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) and
28 CFR 0.100(b), I grant Respondent's Motion for Summary Disposition. I
further order the dismissal of the Order to Show Cause. This order is
effective August 4, 2017.
Dated: June 24, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-14070 Filed 7-3-17; 8:45 am]
BILLING CODE 4410-09-P