81 FR 47826 - Mikhayl Soliman, M.D.: Decision and Order
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 81, Issue 141 (July 22, 2016)
Drug Enforcement Administration
Federal Register Volume 81, Issue 141 (July 22, 2016)
| Page Range | 47826-47829 | |
| FR Document | 2016-17394 |
[Federal Register Volume 81, Number 141 (Friday, July 22, 2016)] [Notices] [Pages 47826-47829] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-17394] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration Mikhayl Soliman, M.D.: Decision and Order On March 27, 2015, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Mikhayl Soliman, M.D. (hereinafter, Applicant), of both Wayne, Michigan and Los Angeles, California. The Show Cause Order proposed the denial of Applicant's applications for DEA Certificates of Registration in the States of Michigan and California on multiple grounds. GX 7, at 1. First, the Show Cause Order alleged that Applicant had previously been registered to handle controlled substances in only Schedule III and IIIN, at the registered address of 3152 South Wayne Road, Wayne, Michigan. Id. The Show Cause Order alleged that on September 14, 2012, Applicant was issued an Order to Show Cause and Immediate Suspension of Registration and that he subsequently voluntarily surrendered his registration. The Show Cause Order alleged that on September 24, 2012, Applicant applied for a new DEA practitioner's registration at his previous registered location in Wayne, Michigan, and that on October 2, 2012, he applied for a new practitioner's registration at a proposed location in Los Angeles, California. Id. The Order then alleged that on both applications, Applicant had failed to disclose that he had voluntarily surrendered his registration and had materially falsified both applications. Id. at 1-2 (citing 21 U.S.C. 843(a)(4)(A)). Second, the Show Cause Order alleged that as a result of actions taken by the medical boards of California and Michigan, Applicant is ``without authority to practice in the States . . . in which [he] applied for'' DEA registrations. Id. at 2. Specifically, the Show Cause Order alleged that on January 15, 2014, the Michigan Board of Medicine issued a Consent Order which found that he ``had prescribed controlled substances . . . in a manner which demonstrated negligence, incompetence, and a lack of good moral character'' and that he ``prescribed, gave away or administered drugs for other than lawful diagnostic or therapeutic purposes.'' Id. The Order also alleged that the Michigan Board had suspended his medical license for six months and one day and required that he petition the Board for reinstatement; the Order then alleged that Applicant's Michigan medical license remains suspended. Id. The Order further alleged that based on the Michigan Board's findings, the Medical Board of California revoked his California license effective October 10, 2014. Id. Finally, the Show Cause Order alleged that on May 16, 2012, DEA Investigators had seized 323 patient files which Applicant had discarded in the trash at his residence, and that the files showed that Applicant had prescribed both hydrocodone (then a Schedule III controlled substance) and alprazolam (a Schedule IV drug) ``to the majority of these patients.'' Id. The Order then alleged that DEA Investigators obtained information from the Michigan Automated Prescriptions System which showed that ``between January 1, 2007 and August 20, 1012, [Applicant] prescribed at least 19,409 dosage units of [s]chedule II [drugs], 725,760 dosage units of [s]chedule IV [drugs], and 246,397 dosage units of [s]chedule V [drugs], without the registered authority to do so.'' Id.\1\ --------------------------------------------------------------------------- \1\ The Show Cause Order also notified Applicant of his right to either request a hearing on the allegations of the Order to Show Cause or to submit a written statement while waiving his right to a hearing, the procedure for electing either option, and the consequence of failing to elect either option. GX 7, at 3. --------------------------------------------------------------------------- Thereafter, the Government attempted to serve the Show Cause Order by FedEx delivered to the proposed business address Applicant used when he applied for a registration in Los Angeles. GX 9, at 1. The Government did not, however, require a signature. Id. at 1-2. Moreover, the Government does not point to any precedent of either the courts or this Agency which allows for the use of FedEx to serve a charging document or complaint (as opposed to post-service filings) on a person.\2\ Thus, this attempt was deemed inadequate to accomplish service. --------------------------------------------------------------------------- \2\ Nor am I aware of any rules of procedure which allow for a charging document or complaint to be served in this manner. --------------------------------------------------------------------------- The Government also noted that it emailed a lawyer who was representing Applicant ``in a pending criminal matter'' and asked him if he could confirm Applicant's current address or accept service on Applicant's behalf. GX 10. The lawyer, however, did not respond. Request for Final Agency Action, at 3. Moreover, according to the Government, a Supervisory Diversion Investigator phoned the attorney and asked for Applicant's address in order to serve the Show Cause Order. Id. According to the Government, while the attorney stated that he would contact the Government's counsel, he did not.\3\ Id. --------------------------------------------------------------------------- \3\ Given that Applicant had been criminally charged and released on bond, the Pre-Trial Services Office would likely have been a more fruitful source for obtaining his residence address. --------------------------------------------------------------------------- The Government then mailed the Show Cause Order by certified mail, return receipt requested, addressed to Applicant at his proposed business address in Wayne, Michigan. GX 11, 12, and 13. Several weeks later the mailing was returned unclaimed, with the Post Office indicating that it was ``unable to forward'' the mailing. GX 13. The Government did not, however, send the Show Cause Order to Applicant by First Class Mail. See Jones v. Flowers, 547 U.S. 220 (2006). Subsequently, the Government submitted a Request for Final Agency Action along with the Investigative File. Upon review of the record, I found that service was inadequate and directed that the Request for Final Agency Action be returned. On November 9, 2015, the Government again mailed the Show Cause Order by certified mail, return receipt requested, addressed to Applicant at his proposed registered location. Here again, several weeks later the mailing was returned by the Post Office as undeliverable. GX 18. Also on November 9, 2015, the same day the Government had re-mailed the Show Cause Order, it emailed the Order to Applicant at the email address he had provided to the Agency on his applications. According to an affidavit submitted by the Government, it ``did not receive any bounce-back email or other indication that the email . . . was undeliverable or otherwise not received.'' GX 19. Upon re-submission of its Request for Final Agency Action, the Government advised that on September 24, 2015, Applicant was found guilty in the United States District Court for the Eastern District of Michigan on multiple counts of health care fraud and aiding and abetting the unlawful distribution of controlled substances. Request for Final Agency Action, at 4; see also GX 15, at 5). The Government further advised that on October 5, 2015, [[Page 47827]] Applicant failed to appear for a bond hearing leading the District Court to issue a bench warrant for his arrest. Based on the above, I find that the Government has satisfied its obligation under the Due Process Clause ``to provide `notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' '' Jones, 547 U.S. at 226 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Due process does not, however, require actual notice, Jones, 547 U.S. at 226 (quoting Dusenbery v. United States, 534 U.S. 161, 170 (2002)), but rather, only `` `notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' '' Id. (quoting Mullane, 339 U.S. at 314). Moreover, the Government is not required to undertake ``heroic efforts'' to find an applicant. Dusenbery, 534 U.S. at 170 (2002). Here, I conclude that Applicant's secreting himself rendered the Government's use of the traditional means of service futile, and that therefore, the Government was entitled to attempt to serve the Show Cause Order by emailing it to him at the email address he had previously provided to the Agency. See Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1017-18 (9th Cir. 2002); see also Snyder, et al. v. Alternate Energy Inc., 857 N.Y.S. 2d 442, 447-449 (N.Y. Civ. Ct. 2008); In re International Telemedia Associates, Inc., 245 B.R. 713, 721-22 (Bankr. N.D. Ga. 2000). To be sure, courts have recognized that the use of email to serve process has ``its limitations,'' including that ``[i]n most instances, there is no way to confirm receipt of an email message.'' Rio Properties, 284 F.3d at 1018. Here, however, I conclude that the use of email to serve Applicant satisfied due process because service was made to an email address he had previously provided to the Agency and the Government did not receive back either an error or undeliverable message. See Richard C. Quigley, D.O., 79 FR 50945 (2014); Emilio Luna, M.D., 77 FR 4829 (2012), see also Robert Leigh Kale, 76 FR 48898, 48899-900 (2011). Thus, I am satisfied that the Government has provided Applicant with notice ``reasonably calculated . . . to apprise [him] of the pendency of the action'' and to present his objections.\4\ Jones, 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314). --------------------------------------------------------------------------- \4\ Because Applicant is a fugitive, I need not decide whether the Government could have satisfied its constitutional obligation by simply re-mailing the Show Cause Order to him by regular first class mail as the Supreme Court's decision in Jones v. Flowers suggests. Jones, 547 U.S. at 234-35. --------------------------------------------------------------------------- Having found that the service of the Show Cause Order was constitutionally adequate, I turn to whether Applicant has waived his right to a hearing or to submit a written statement in lieu of a hearing. According to the Government, since the re-service of the Show Cause Order, neither Applicant, nor anyone purporting to represent him, has requested a hearing or submitted a written statement of position. Accordingly, as more than 30 days have now passed since the date of service, I find that Applicant has waived his right to a hearing or to submit a written statement. 21 CFR 1301.43(d). I therefore issue this Decision and Final Order based on relevant evidence contained in the Investigative Record submitted by the Government. Id. 1301.43(d) & (e). I make the following additional findings of fact. Findings of Fact Applicant previously held DEA Certificate of Registration BS9471309, pursuant to which he was authorized to dispense controlled substances in Schedules III and IIIN, at the registered address of Soliman Medical Center, 3152 South Wayne Road, Wayne, Michigan. GX 2, at 1. However, on September 14, 2012, the former Administrator issued an Order to Show Cause and Immediate Suspension of Registration to Applicant, based on allegations that he was prescribing controlled substances in Schedules II, IV, and V, for which he lacked authority, and that he also issued prescriptions for drug cocktails of hydrocodone (then Schedule III) and alprazolam (Schedule IV) which lacked a legitimate medical purpose. GX 3, at 1-2. The former Administrator also noted that of the 323 patient files DEA Investigators found in his trash, 143 of the patients had ``criminal histories involving controlled substance violations.'' Id. at 2. The same day, Applicant voluntarily surrendered his registration ``in view of [his] alleged failure to comply with the Federal requirements pertaining to controlled substances.'' GX 4, at 1. Four days later, on September 21, 2012, Applicant submitted an application for a new registration as a practitioner in Schedules IIN, III, IIIN and IV at the registered address of 3152 South Wayne Road, Wayne, Michigan. The DEA Chief of Registration certified that on his application, Applicant answered ``No'' to question 3, which asks: ``[h]as the applicant ever surrendered (for cause) or had a federal controlled substance registration revoked, suspended, restricted or denied, or is any such action pending?'' GX 1, at 1, 3. This application remains pending before the Agency. Id. at 1. On October 1, 2012, Applicant submitted a second application for registration as a practitioner in Schedules III, IIIN, IV, and V, at the registered address of 3844 Wasatch Ave #4, Los Angeles, California. GX 8. The DEA Chief of Registration certified that on his application, Applicant answered ``No'' to the question, ``Has the applicant ever surrendered (for cause) or had a federal controlled substance registration revoked, suspended, restricted or denied, or is any such action pending?'' GX 8, at 2, 4. On February 25, 2013, the Michigan Board of Medicine's Disciplinary Subcommittee filed an Administrative Complaint against Applicant. GX 5, at 13. Based on a review of 20 patient charts, the Board alleged that his charting was lacking: (1) ``information pertaining to past medical history or current treating clinicians''; (2) ``any findings pertaining to pain assessment, level of dysfunction from pain, treatment plan, or diagnostic testing''; (3) ``any documentation pertaining to patient informed consents, prescribing agreements, pain assessments, clinical documentation, drug analysis screens, lab test results, patient risk assessments, copies of previous medical records, or the implementation of a pain management program''; and (4) ``any documentation that [he] monitored the patients' use of the controlled substances for drug dependency or diversion, or that he verified the efficacy of the long term use of the controlled substances in treating the diagnoses of the patients.'' Id. at 10-11. The Board also alleged that the charts ``lack[ed] documentation that [he] counselled the patients about the risk associated with being prescribed a combination of hydrocodone and alprazolam, or the long term effects of continued consumption of acetaminophen.'' Id. Based on its findings, the Board alleged that Applicant had violated various provisions of Michigan law, and had engaged in ``selling, prescribing, giving away, or administering drugs for other than lawful diagnostic or therapeutic purposes.'' Id. at 12 (quoting Mich. Comp. Laws section 162221(c)(iv)). On January 15, 2014, Applicant stipulated with the Board to the entry of a Consent Order, pursuant to which his medical license was suspended for six months and one day, effective February [[Page 47828]] 15, 2014.\5\ GX 5, at 1-3. However, the Consent Order also provided that the reinstatement of Applicant's medical license ``is not automatic and that he will have to petition for reinstatement'' and show that he is of ``good moral character,'' that he has ``the ability to practice . . . with reasonable skill and safety,'' that he has satisfied ``the guidelines on reinstatement,'' and that the reinstatement of his license ``is in the public interest.'' Id. at 2. See also M.C.L.A. 333.16221. --------------------------------------------------------------------------- \5\ Applicant was not required to admit that the allegations were true. GX 5, at 3. --------------------------------------------------------------------------- To date, Applicant has not been reinstated. I therefore find that Applicant is currently without authority to dispense controlled substances in Michigan, one of the States in which he seeks registration. Applicant also formerly held a Physician's and Surgeon's Certificate issued by the Medical Board of California. However, on October 10, 2014, the Medical Board revoked his Physician's and Surgeon's Certificate based on the Michigan Board of Medicine's suspension of his Michigan medical license. In its Request for Final Agency Action, the Government notes that the Order to Show Cause also sought to deny Applicant's application for a DEA registration in California on the basis that the California Medical Board had revoked his medical license. Request for Final Agency Action, at 2 n.1. The Government, however, now advises that ``subsequent to the issuance of the [Show Cause Order], the undersigned counsel learned that the . . . Los Angeles Field Division . . . withdrew [Applicant]'s application pursuant to 21 CFR 1301.16(b), which provides that `failure of the applicant to respond to official correspondence regarding the application, when sent by registered or certified mail, return receipt requested, shall be deemed to be a withdrawal of the application.' '' Id. (quoting 21 CFR 1301.16(b)). The Government further explains that in December 2014, the Los Angeles Field Division ``attempted to reach [Applicant] via certified mail at his application addresses in California and Michigan, [but] the certified letters were returned as unclaimed and undeliverable, and consequently, [his] application for a DEA Registration in California was `deemed' a withdrawal and terminated in the registration database.'' Id. at 2-3. The Agency's registration records (of which I take official notice, see 5 U.S.C. 556(e)), show that on December 5, 2014, Applicant was sent a letter requesting that he provide a valid California Medical Board license number in order to process his pending application for registration. According to the affidavit of the then-chief of the Agency's registration unit, on February 27, 2015, Applicant's October 1, 2012, application for his proposed Los Angeles, California address was deemed ``withdrawn and retired from the DEA computer system.'' GX 8, at 1. Discussion Pursuant to section 303(f) of the Controlled Substances Act, ``[t]he Attorney General shall register practitioners . . . to dispense . . . controlled substances . . . if the applicant is authorized to dispense controlled substances under the laws of the State in which he practices.'' 21 U.S.C. 823(f). Section 303(f) further provides that an application for a practitioner's registration may be denied upon a determination ``that the issuance of such registration . . . would be inconsistent with the public interest.'' Id. In making the public interest determination, the CSA requires the consideration of the following factors: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The Applicant's experience in dispensing . . . controlled substances. (3) The Applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety. Id. ``These factors are . . . considered in the disjunctive.'' Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or a combination of factors, and may give each factor the weight [I] deem[ ] appropriate in determining whether . . . an application for registration [should be] denied.'' Id. Moreover, while I am required to consider each of the factors, I ``need not make explicit findings as to each one.'' MacKay v. DEA, 664 F.3d 808, 816 (10th Cir. 2011) (quoting Volkman, 567 F.3d 215, 222 (6th Cir. 2009) (quoting Hoxie, 419 F.3d 477, 482 (6th Cir. 2005))).\6\ --------------------------------------------------------------------------- \6\ ``In short, this is not a contest in which score is kept; the Agency is not required to mechanically count up the factors and determine how many favor the Government and how many favor the [applicant]. Rather, it is an inquiry which focuses on protecting the public interest; what matters is the seriousness of the [applicant's] misconduct.'' Jayam Krishna-Iyer, 74 FR 459, 462 (2009). --------------------------------------------------------------------------- In this case, I conclude that the record supports two independent grounds for denying Applicant's application for a DEA registration. First, Applicant does not possess authority under the laws of Michigan, the State in which he seeks registration with the Agency. Second, Applicant materially falsified his application for a DEA registration. Applicant's Lack of State Authority Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in ``the jurisdiction in which he practices'' in order to obtain a DEA registration. See 21 U.S.C. 823(f) (``The Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.''). See also 21 U.S.C. 802(21) (``[t]he term `practitioner' means a physician . . . 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''). Moreover, the CSA authorizes the revocation of a registration ``upon a finding that the registrant . . . has had his State license or registration suspended [or] revoked . . . and is no longer authorized by State law to engage in the . . . distribution [or] dispensing of controlled substances.'' Id. section 824(a)(3). As the Supreme Court has explained, ``[i]n the case of a physician, this scheme contemplates that he is authorized by the State to practice medicine and to dispense drugs in connection with his professional practice.'' United States v. Moore, 423 U.S. 122, 140-41 (1975). Based on these provisions, DEA has long and repeatedly held that the possession of state authority is a prerequisite for obtaining and maintaining a practitioner's registration. See Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (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 Sheran Arden Yeates, 71 FR 39130, 39131 (2006); Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920 (1988). Here, the investigative file establishes that the Michigan Board suspended applicant's medical license on February 15, 2014. Moreover, as found above, Applicant's Michigan medical license remains suspended as of the date of this Decision and Order. I therefore find that Applicant is without authority to dispense controlled substances in [[Page 47829]] Michigan, the State in which he seeks registration. Because he does not meet this prerequisite for obtaining a DEA registration, I will deny his application on this basis. Material Falsification Pursuant to section 304(a)(1), the Attorney General is also authorized to suspend or revoke a registration ``upon a finding that the registrant . . . has materially falsified any application filed pursuant to or required by this subchapter.'' 21 U.S.C. 824(a)(1). It is well established that the various grounds for revocation or suspension of an existing registration that Congress enumerated in section 304(a), 21 U.S.C. 824(a), are also properly considered in deciding whether to grant or deny an application under section 303. See The Lawsons, Inc., 72 FR 74334, 74337 (2007); Anthony D. Funches, 64 FR 14267, 14268 (1999); Alan R. Schankman, 63 FR 45260 (1998); Kuen H. Chen, 58 FR 65401, 65402 (1993). Thus, the allegation that Applicant materially falsified his application is properly considered in this proceeding. See Samuel S. Jackson, 72 FR 23848, 23852 (2007). Moreover, just as materially falsifying an application provides a basis for revoking an existing registration without proof of any other misconduct, see 21 U.S.C. 824(a)(1), it also provides an independent and adequate ground for denying an application. The Lawsons, 72 FR 74338; cf. Bobby Watts, M.D., 58 FR 46995 (1993). Here, the Government's evidence shows that upon being served with an Order to Show Cause and Immediate Suspension of Registration which alleged that he had prescribed controlled substances in violation of the CSA, Applicant surrendered his registration. GXs 3 & 4. Moreover, on the Voluntary Surrender form, Applicant acknowledged that he was doing so ``[i]n view of my alleged failure to comply with the Federal requirements pertaining to controlled substances.'' GX 4. Yet days later, Applicant applied for a new registration and provided a ``no'' answer to the question: ``[h]as the applicant ever surrendered (for cause) or had a federal controlled substance registration revoked, suspended, restricted or denied, or is any such action pending?'' GX 1, at 1, 3. Applicant's answer was false as he had clearly surrendered his registration for cause. His false answer was also material as ``it `ha[d] a natural tendency to influence, or was capable of influencing, the decision of' the decisionmaking body to which it was addressed.'' Kungys v. United States, 485 U.S. 759, 770 (1988) (quoting Weinstock v. United States, 231 F.2d 699, 701 (D.C. Cir. 1956)) (other citation omitted); see also United States v. Wells, 519 U.S. 482, 489 (1997) (quoting Kungys, 485 U.S. at 770). As the Supreme Court has further explained, ``it has never been the test of materiality that the misrepresentation or concealment would more likely than not have produced an erroneous decision, or even that it would more likely than not have triggered an investigation, but rather, whether the misrepresentation or concealment was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision.'' Kungys, 485 U.S. at 771. While the evidence must be ``clear, unequivocal, and convincing,'' the ``ultimate finding of materiality turns on an interpretation of the substantive law.'' Id. at 772 (int. quotations and citations omitted). Applicant's false answer to the question of whether he had ever surrendered his federal registration was clearly ``capable of affecting'' the decision of whether to grant his application. As the evidence shows, Applicant surrendered his registration in response to allegations that he violated the CSA and DEA regulations by prescribing controlled substances that were in schedules for which he lacked authorization, as well as allegations that he issued prescriptions that lacked a legitimate medical purpose. GX 3, at 2 (Sept. 24, 2012 Immediate Suspension Order) (citing 21 U.S.C. 822(b) and 841(a)(1); 21 CFR 1301.12(a) and 1306.04(a)). Notably, under the public interest standard, the Agency is required to consider both the Applicant's ``experience in dispensing . . . controlled substances'' and his ``[c]ompliance with applicable State, Federal, or local laws relating to controlled substances.'' 21 U.S.C. 823(f)(2) & (4). See also Shannon L. Gallentine, D.P.M., 76 FR 45864, 45866 (2011). Thus, notwithstanding that the Agency did not grant his application, his false answer was still material as it was capable of influencing the decision as to whether to grant his application. See United States v. Alemany Rivera, 781 F.2d 229, 234 (1st Cir. 1985) (``It makes no difference that a specific falsification did not exert influence so long as it had the capacity to do so.''); United States v. Norris, 749 F.2d 1116, 1121 (4th Cir. 1984) (``There is no requirement that the false statement influence or effect the decision making process of a department of the United States Government.''). Accordingly, I conclude that Applicant materially falsified his September 2012 application for registration. This provides a further reason to deny his pending application. Order Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 CFR 0.100(b), I order that the application of Mikhayl Soliman, M.D., for a DEA Certificate of Registration as a practitioner, be, and it hereby is, denied. This Order is effective immediately. Dated: July 15, 2016. Chuck Rosenberg, Acting Administrator. [FR Doc. 2016-17394 Filed 7-21-16; 8:45 am] BILLING CODE 4410-09-P
![47826 Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Notices
2017 aggregate production quota for found that he ‘‘had prescribed confirm Applicant’s current address or
controlled substances in schedules I and controlled substances . . . in a manner accept service on Applicant’s behalf. GX
II and establishing an assessment of which demonstrated negligence, 10. The lawyer, however, did not
annual needs for the list I chemicals incompetence, and a lack of good moral respond. Request for Final Agency
ephedrine, pseudoephedrine, and character’’ and that he ‘‘prescribed, gave Action, at 3. Moreover, according to the
phenylpropanolamine, 21 CFR away or administered drugs for other Government, a Supervisory Diversion
1303.11(c) and 1315.11(f). than lawful diagnostic or therapeutic Investigator phoned the attorney and
Dated: July 14, 2016. purposes.’’ Id. The Order also alleged asked for Applicant’s address in order to
Chuck Rosenberg, that the Michigan Board had suspended serve the Show Cause Order. Id.
Acting Administrator. his medical license for six months and According to the Government, while the
one day and required that he petition attorney stated that he would contact
[FR Doc. 2016–17370 Filed 7–21–16; 8:45 am]
the Board for reinstatement; the Order the Government’s counsel, he did not.3
BILLING CODE 4410–09–P
then alleged that Applicant’s Michigan Id.
medical license remains suspended. Id. The Government then mailed the
DEPARTMENT OF JUSTICE The Order further alleged that based on Show Cause Order by certified mail,
the Michigan Board’s findings, the return receipt requested, addressed to
Drug Enforcement Administration Medical Board of California revoked his Applicant at his proposed business
California license effective October 10, address in Wayne, Michigan. GX 11, 12,
Mikhayl Soliman, M.D.: Decision and 2014. Id. and 13. Several weeks later the mailing
Order Finally, the Show Cause Order alleged was returned unclaimed, with the Post
that on May 16, 2012, DEA Investigators Office indicating that it was ‘‘unable to
On March 27, 2015, the Deputy
had seized 323 patient files which forward’’ the mailing. GX 13. The
Assistant Administrator, Office of
Applicant had discarded in the trash at Government did not, however, send the
Diversion Control, Drug Enforcement
his residence, and that the files showed Show Cause Order to Applicant by First
Administration, issued an Order to
that Applicant had prescribed both Class Mail. See Jones v. Flowers, 547
Show Cause to Mikhayl Soliman, M.D.
hydrocodone (then a Schedule III U.S. 220 (2006).
(hereinafter, Applicant), of both Wayne,
controlled substance) and alprazolam (a Subsequently, the Government
Michigan and Los Angeles, California.
Schedule IV drug) ‘‘to the majority of submitted a Request for Final Agency
The Show Cause Order proposed the
these patients.’’ Id. The Order then Action along with the Investigative File.
denial of Applicant’s applications for
alleged that DEA Investigators obtained Upon review of the record, I found that
DEA Certificates of Registration in the
information from the Michigan service was inadequate and directed
States of Michigan and California on
Automated Prescriptions System which that the Request for Final Agency
multiple grounds. GX 7, at 1.
First, the Show Cause Order alleged showed that ‘‘between January 1, 2007 Action be returned.
and August 20, 1012, [Applicant] On November 9, 2015, the
that Applicant had previously been
prescribed at least 19,409 dosage units Government again mailed the Show
registered to handle controlled
of [s]chedule II [drugs], 725,760 dosage Cause Order by certified mail, return
substances in only Schedule III and IIIN,
units of [s]chedule IV [drugs], and receipt requested, addressed to
at the registered address of 3152 South
246,397 dosage units of [s]chedule V Applicant at his proposed registered
Wayne Road, Wayne, Michigan. Id. The
[drugs], without the registered authority location. Here again, several weeks later
Show Cause Order alleged that on
to do so.’’ Id.1 the mailing was returned by the Post
September 14, 2012, Applicant was
Thereafter, the Government attempted Office as undeliverable. GX 18.
issued an Order to Show Cause and
to serve the Show Cause Order by FedEx Also on November 9, 2015, the same
Immediate Suspension of Registration
delivered to the proposed business day the Government had re-mailed the
and that he subsequently voluntarily
address Applicant used when he Show Cause Order, it emailed the Order
surrendered his registration.
The Show Cause Order alleged that on applied for a registration in Los Angeles. to Applicant at the email address he had
September 24, 2012, Applicant applied GX 9, at 1. The Government did not, provided to the Agency on his
for a new DEA practitioner’s registration however, require a signature. Id. at 1–2. applications. According to an affidavit
at his previous registered location in Moreover, the Government does not submitted by the Government, it ‘‘did
Wayne, Michigan, and that on October point to any precedent of either the not receive any bounce-back email or
2, 2012, he applied for a new courts or this Agency which allows for other indication that the email . . . was
practitioner’s registration at a proposed the use of FedEx to serve a charging undeliverable or otherwise not
location in Los Angeles, California. Id. document or complaint (as opposed to received.’’ GX 19.
The Order then alleged that on both post-service filings) on a person.2 Thus, Upon re-submission of its Request for
applications, Applicant had failed to this attempt was deemed inadequate to Final Agency Action, the Government
disclose that he had voluntarily accomplish service. advised that on September 24, 2015,
surrendered his registration and had The Government also noted that it Applicant was found guilty in the
materially falsified both applications. emailed a lawyer who was representing United States District Court for the
Id. at 1–2 (citing 21 U.S.C. 843(a)(4)(A)). Applicant ‘‘in a pending criminal Eastern District of Michigan on multiple
Second, the Show Cause Order matter’’ and asked him if he could counts of health care fraud and aiding
alleged that as a result of actions taken and abetting the unlawful distribution
by the medical boards of California and
1 The Show Cause Order also notified Applicant of controlled substances. Request for
of his right to either request a hearing on the Final Agency Action, at 4; see also GX
ehiers on DSK5VPTVN1PROD with NOTICES
Michigan, Applicant is ‘‘without allegations of the Order to Show Cause or to submit
authority to practice in the States . . . a written statement while waiving his right to a
15, at 5). The Government further
in which [he] applied for’’ DEA hearing, the procedure for electing either option, advised that on October 5, 2015,
registrations. Id. at 2. Specifically, the and the consequence of failing to elect either
option. GX 7, at 3. 3 Given that Applicant had been criminally
Show Cause Order alleged that on 2 Nor am I aware of any rules of procedure which charged and released on bond, the Pre-Trial
January 15, 2014, the Michigan Board of allow for a charging document or complaint to be Services Office would likely have been a more
Medicine issued a Consent Order which served in this manner. fruitful source for obtaining his residence address.
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![Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Notices 47827
Applicant failed to appear for a bond U.S. at 226 (quoting Mullane, 339 U.S. that on his application, Applicant
hearing leading the District Court to at 314). answered ‘‘No’’ to question 3, which
issue a bench warrant for his arrest. Having found that the service of the asks: ‘‘[h]as the applicant ever
Based on the above, I find that the Show Cause Order was constitutionally surrendered (for cause) or had a federal
Government has satisfied its obligation adequate, I turn to whether Applicant controlled substance registration
under the Due Process Clause ‘‘to has waived his right to a hearing or to revoked, suspended, restricted or
provide ‘notice reasonably calculated, submit a written statement in lieu of a denied, or is any such action pending?’’
under all the circumstances, to apprise hearing. According to the Government, GX 1, at 1, 3. This application remains
interested parties of the pendency of the since the re-service of the Show Cause pending before the Agency. Id. at 1.
action and afford them an opportunity Order, neither Applicant, nor anyone On October 1, 2012, Applicant
to present their objections.’ ’’ Jones, 547 purporting to represent him, has submitted a second application for
U.S. at 226 (quoting Mullane v. Central requested a hearing or submitted a registration as a practitioner in
Hanover Bank & Trust Co., 339 U.S. written statement of position. Schedules III, IIIN, IV, and V, at the
306, 314 (1950)). Due process does not, Accordingly, as more than 30 days have registered address of 3844 Wasatch Ave
however, require actual notice, Jones, now passed since the date of service, I #4, Los Angeles, California. GX 8. The
547 U.S. at 226 (quoting Dusenbery v. find that Applicant has waived his right DEA Chief of Registration certified that
United States, 534 U.S. 161, 170 (2002)), to a hearing or to submit a written on his application, Applicant answered
but rather, only ‘‘ ‘notice reasonably statement. 21 CFR 1301.43(d). I ‘‘No’’ to the question, ‘‘Has the
calculated, under all the circumstances, therefore issue this Decision and Final applicant ever surrendered (for cause) or
to apprise interested parties of the Order based on relevant evidence had a federal controlled substance
pendency of the action and afford them contained in the Investigative Record registration revoked, suspended,
an opportunity to present their submitted by the Government. Id. restricted or denied, or is any such
objections.’ ’’ Id. (quoting Mullane, 339 1301.43(d) & (e). I make the following action pending?’’ GX 8, at 2, 4.
U.S. at 314). Moreover, the Government additional findings of fact. On February 25, 2013, the Michigan
is not required to undertake ‘‘heroic Board of Medicine’s Disciplinary
efforts’’ to find an applicant. Dusenbery, Findings of Fact Subcommittee filed an Administrative
534 U.S. at 170 (2002). Applicant previously held DEA Complaint against Applicant. GX 5, at
Here, I conclude that Applicant’s Certificate of Registration BS9471309, 13. Based on a review of 20 patient
secreting himself rendered the pursuant to which he was authorized to charts, the Board alleged that his
Government’s use of the traditional dispense controlled substances in charting was lacking:
means of service futile, and that Schedules III and IIIN, at the registered (1) ‘‘information pertaining to past medical
therefore, the Government was entitled address of Soliman Medical Center, history or current treating clinicians’’;
to attempt to serve the Show Cause 3152 South Wayne Road, Wayne, (2) ‘‘any findings pertaining to pain
Order by emailing it to him at the email Michigan. GX 2, at 1. However, on assessment, level of dysfunction from pain,
address he had previously provided to September 14, 2012, the former treatment plan, or diagnostic testing’’;
the Agency. See Rio Properties, Inc. v. Administrator issued an Order to Show (3) ‘‘any documentation pertaining to
Rio Int’l Interlink, 284 F.3d 1007, 1017– patient informed consents, prescribing
Cause and Immediate Suspension of agreements, pain assessments, clinical
18 (9th Cir. 2002); see also Snyder, et al. Registration to Applicant, based on documentation, drug analysis screens, lab
v. Alternate Energy Inc., 857 N.Y.S. 2d allegations that he was prescribing test results, patient risk assessments, copies
442, 447–449 (N.Y. Civ. Ct. 2008); In re controlled substances in Schedules II, of previous medical records, or the
International Telemedia Associates, IV, and V, for which he lacked implementation of a pain management
Inc., 245 B.R. 713, 721–22 (Bankr. N.D. authority, and that he also issued program’’; and
Ga. 2000). prescriptions for drug cocktails of (4) ‘‘any documentation that [he]
To be sure, courts have recognized monitored the patients’ use of the controlled
hydrocodone (then Schedule III) and substances for drug dependency or diversion,
that the use of email to serve process alprazolam (Schedule IV) which lacked or that he verified the efficacy of the long
has ‘‘its limitations,’’ including that a legitimate medical purpose. GX 3, at term use of the controlled substances in
‘‘[i]n most instances, there is no way to 1–2. The former Administrator also treating the diagnoses of the patients.’’
confirm receipt of an email message.’’ noted that of the 323 patient files DEA
Rio Properties, 284 F.3d at 1018. Here, Id. at 10–11. The Board also alleged
Investigators found in his trash, 143 of that the charts ‘‘lack[ed] documentation
however, I conclude that the use of the patients had ‘‘criminal histories
email to serve Applicant satisfied due that [he] counselled the patients about
involving controlled substance the risk associated with being
process because service was made to an violations.’’ Id. at 2. The same day,
email address he had previously prescribed a combination of
Applicant voluntarily surrendered his hydrocodone and alprazolam, or the
provided to the Agency and the registration ‘‘in view of [his] alleged
Government did not receive back either long term effects of continued
failure to comply with the Federal consumption of acetaminophen.’’ Id.
an error or undeliverable message. See requirements pertaining to controlled
Richard C. Quigley, D.O., 79 FR 50945 Based on its findings, the Board alleged
substances.’’ GX 4, at 1. that Applicant had violated various
(2014); Emilio Luna, M.D., 77 FR 4829 Four days later, on September 21,
(2012), see also Robert Leigh Kale, 76 FR provisions of Michigan law, and had
2012, Applicant submitted an engaged in ‘‘selling, prescribing, giving
48898, 48899–900 (2011). Thus, I am application for a new registration as a
satisfied that the Government has away, or administering drugs for other
practitioner in Schedules IIN, III, IIIN than lawful diagnostic or therapeutic
provided Applicant with notice and IV at the registered address of 3152
ehiers on DSK5VPTVN1PROD with NOTICES
‘‘reasonably calculated . . . to apprise purposes.’’ Id. at 12 (quoting Mich.
South Wayne Road, Wayne, Michigan. Comp. Laws section 162221(c)(iv)).
[him] of the pendency of the action’’ The DEA Chief of Registration certified On January 15, 2014, Applicant
and to present his objections.4 Jones, 547
stipulated with the Board to the entry of
mailing the Show Cause Order to him by regular
4 Because Applicant is a fugitive, I need not first class mail as the Supreme Court’s decision in
a Consent Order, pursuant to which his
decide whether the Government could have Jones v. Flowers suggests. Jones, 547 U.S. at 234– medical license was suspended for six
satisfied its constitutional obligation by simply re- 35. months and one day, effective February
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![47828 Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Notices
15, 2014.5 GX 5, at 1–3. However, the Medical Board license number in order denying Applicant’s application for a
Consent Order also provided that the to process his pending application for DEA registration. First, Applicant does
reinstatement of Applicant’s medical registration. According to the affidavit not possess authority under the laws of
license ‘‘is not automatic and that he of the then-chief of the Agency’s Michigan, the State in which he seeks
will have to petition for reinstatement’’ registration unit, on February 27, 2015, registration with the Agency. Second,
and show that he is of ‘‘good moral Applicant’s October 1, 2012, application Applicant materially falsified his
character,’’ that he has ‘‘the ability to for his proposed Los Angeles, California application for a DEA registration.
practice . . . with reasonable skill and address was deemed ‘‘withdrawn and Applicant’s Lack of State Authority
safety,’’ that he has satisfied ‘‘the retired from the DEA computer system.’’
guidelines on reinstatement,’’ and that GX 8, at 1. Under the Controlled Substances Act
the reinstatement of his license ‘‘is in (CSA), a practitioner must be currently
the public interest.’’ Id. at 2. See also Discussion authorized to handle controlled
M.C.L.A. 333.16221. Pursuant to section 303(f) of the substances in ‘‘the jurisdiction in which
To date, Applicant has not been Controlled Substances Act, ‘‘[t]he he practices’’ in order to obtain a DEA
reinstated. I therefore find that Attorney General shall register registration. See 21 U.S.C. 823(f) (‘‘The
Applicant is currently without authority practitioners . . . to dispense . . . Attorney General shall register
to dispense controlled substances in controlled substances . . . if the practitioners . . . if the applicant is
Michigan, one of the States in which he applicant is authorized to dispense authorized to dispense . . . controlled
seeks registration. controlled substances under the laws of substances under the laws of the State
Applicant also formerly held a the State in which he practices.’’ 21 in which he practices.’’). See also 21
Physician’s and Surgeon’s Certificate U.S.C. 823(f). Section 303(f) further U.S.C. 802(21) (‘‘[t]he term ‘practitioner’
issued by the Medical Board of provides that an application for a means a physician . . . licensed,
California. However, on October 10, practitioner’s registration may be denied registered, or otherwise permitted, by
2014, the Medical Board revoked his upon a determination ‘‘that the issuance . . . the jurisdiction in which he
Physician’s and Surgeon’s Certificate of such registration . . . would be practices . . . to distribute, dispense,
based on the Michigan Board of inconsistent with the public interest.’’ [or] administer . . . a controlled
Medicine’s suspension of his Michigan Id. In making the public interest substance in the course of professional
medical license. determination, the CSA requires the practice’’). Moreover, the CSA
In its Request for Final Agency consideration of the following factors: authorizes the revocation of a
Action, the Government notes that the (1) The recommendation of the registration ‘‘upon a finding that the
Order to Show Cause also sought to appropriate State licensing board or registrant . . . has had his State license
deny Applicant’s application for a DEA professional disciplinary authority. or registration suspended [or] revoked
registration in California on the basis (2) The Applicant’s experience in . . . and is no longer authorized by
that the California Medical Board had dispensing . . . controlled substances. State law to engage in the . . .
revoked his medical license. Request for (3) The Applicant’s conviction record distribution [or] dispensing of
Final Agency Action, at 2 n.1. The under Federal or State laws relating to controlled substances.’’ Id. section
Government, however, now advises that the manufacture, distribution, or 824(a)(3). As the Supreme Court has
‘‘subsequent to the issuance of the dispensing of controlled substances. explained, ‘‘[i]n the case of a physician,
[Show Cause Order], the undersigned (4) Compliance with applicable State, this scheme contemplates that he is
counsel learned that the . . . Los Federal, or local laws relating to authorized by the State to practice
Angeles Field Division . . . withdrew controlled substances. medicine and to dispense drugs in
[Applicant]’s application pursuant to 21 (5) Such other conduct which may connection with his professional
CFR 1301.16(b), which provides that threaten the public health and safety. practice.’’ United States v. Moore, 423
‘failure of the applicant to respond to Id. U.S. 122, 140–41 (1975).
official correspondence regarding the ‘‘These factors are . . . considered in Based on these provisions, DEA has
application, when sent by registered or the disjunctive.’’ Robert A. Leslie, M.D., long and repeatedly held that the
certified mail, return receipt requested, 68 FR 15227, 15230 (2003). I ‘‘may rely possession of state authority is a
shall be deemed to be a withdrawal of on any one or a combination of factors, prerequisite for obtaining and
the application.’ ’’ Id. (quoting 21 CFR and may give each factor the weight [I] maintaining a practitioner’s registration.
1301.16(b)). The Government further deem[ ] appropriate in determining See Frederick Marsh Blanton, M.D., 43
explains that in December 2014, the Los whether . . . an application for FR 27616, 27617 (1978) (‘‘State
Angeles Field Division ‘‘attempted to registration [should be] denied.’’ Id. authorization to dispense or otherwise
reach [Applicant] via certified mail at Moreover, while I am required to handle controlled substances is a
his application addresses in California consider each of the factors, I ‘‘need not prerequisite to the issuance and
and Michigan, [but] the certified letters make explicit findings as to each one.’’ maintenance of a Federal controlled
were returned as unclaimed and MacKay v. DEA, 664 F.3d 808, 816 (10th substances registration.’’). See also
undeliverable, and consequently, [his] Cir. 2011) (quoting Volkman, 567 F.3d Sheran Arden Yeates, 71 FR 39130,
application for a DEA Registration in 215, 222 (6th Cir. 2009) (quoting Hoxie, 39131 (2006); Dominick A. Ricci, 58 FR
California was ‘deemed’ a withdrawal 419 F.3d 477, 482 (6th Cir. 2005))).6 51104, 51105 (1993); Bobby Watts, 53
and terminated in the registration In this case, I conclude that the record FR 11919, 11920 (1988).
database.’’ Id. at 2–3. Here, the investigative file establishes
supports two independent grounds for
The Agency’s registration records (of that the Michigan Board suspended
ehiers on DSK5VPTVN1PROD with NOTICES
which I take official notice, see 5 U.S.C. 6 ‘‘In short, this is not a contest in which score applicant’s medical license on February
556(e)), show that on December 5, 2014, is kept; the Agency is not required to mechanically 15, 2014. Moreover, as found above,
Applicant was sent a letter requesting count up the factors and determine how many favor Applicant’s Michigan medical license
the Government and how many favor the remains suspended as of the date of this
that he provide a valid California [applicant]. Rather, it is an inquiry which focuses
on protecting the public interest; what matters is
Decision and Order. I therefore find that
5 Applicant was not required to admit that the the seriousness of the [applicant’s] misconduct.’’ Applicant is without authority to
allegations were true. GX 5, at 3. Jayam Krishna-Iyer, 74 FR 459, 462 (2009). dispense controlled substances in
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![Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Notices 47829
Michigan, the State in which he seeks 485 U.S. 759, 770 (1988) (quoting for registration. This provides a further
registration. Because he does not meet Weinstock v. United States, 231 F.2d reason to deny his pending application.
this prerequisite for obtaining a DEA 699, 701 (D.C. Cir. 1956)) (other citation
Order
registration, I will deny his application omitted); see also United States v. Wells,
on this basis. 519 U.S. 482, 489 (1997) (quoting Pursuant to the authority vested in me
Kungys, 485 U.S. at 770). As the by 21 U.S.C. 823(f) and 28 CFR 0.100(b),
Material Falsification I order that the application of Mikhayl
Supreme Court has further explained,
Pursuant to section 304(a)(1), the ‘‘it has never been the test of materiality Soliman, M.D., for a DEA Certificate of
Attorney General is also authorized to that the misrepresentation or Registration as a practitioner, be, and it
suspend or revoke a registration ‘‘upon concealment would more likely than not hereby is, denied. This Order is effective
a finding that the registrant . . . has have produced an erroneous decision, immediately.
materially falsified any application filed or even that it would more likely than Dated: July 15, 2016.
pursuant to or required by this not have triggered an investigation, but Chuck Rosenberg,
subchapter.’’ 21 U.S.C. 824(a)(1). It is rather, whether the misrepresentation or
well established that the various Acting Administrator.
concealment was predictably capable of
grounds for revocation or suspension of [FR Doc. 2016–17394 Filed 7–21–16; 8:45 am]
affecting, i.e., had a natural tendency to
an existing registration that Congress affect, the official decision.’’ Kungys, BILLING CODE 4410–09–P
enumerated in section 304(a), 21 U.S.C. 485 U.S. at 771. While the evidence
824(a), are also properly considered in must be ‘‘clear, unequivocal, and
deciding whether to grant or deny an convincing,’’ the ‘‘ultimate finding of DEPARTMENT OF JUSTICE
application under section 303. See The materiality turns on an interpretation of
Lawsons, Inc., 72 FR 74334, 74337 Drug Enforcement Administration
the substantive law.’’ Id. at 772 (int.
(2007); Anthony D. Funches, 64 FR quotations and citations omitted). [Docket No. DEA–420P]
14267, 14268 (1999); Alan R. Applicant’s false answer to the
Schankman, 63 FR 45260 (1998); Kuen question of whether he had ever Proposed Adjustments to the
H. Chen, 58 FR 65401, 65402 (1993). surrendered his federal registration was Aggregate Production Quotas for
Thus, the allegation that Applicant clearly ‘‘capable of affecting’’ the Schedule I and II Controlled
materially falsified his application is decision of whether to grant his Substances and Assessment of
properly considered in this proceeding. application. As the evidence shows, Annual Needs for the List I Chemicals
See Samuel S. Jackson, 72 FR 23848, Applicant surrendered his registration Ephedrine, Pseudoephedrine, and
23852 (2007). Moreover, just as in response to allegations that he Phenylpropanolamine for 2016
materially falsifying an application violated the CSA and DEA regulations
provides a basis for revoking an existing AGENCY: Drug Enforcement
by prescribing controlled substances Administration, Department of Justice.
registration without proof of any other that were in schedules for which he
misconduct, see 21 U.S.C. 824(a)(1), it ACTION: Notice with request for
lacked authorization, as well as
also provides an independent and allegations that he issued prescriptions comments.
adequate ground for denying an that lacked a legitimate medical SUMMARY: The Drug Enforcement
application. The Lawsons, 72 FR 74338; purpose. GX 3, at 2 (Sept. 24, 2012 Administration (DEA) proposes to
cf. Bobby Watts, M.D., 58 FR 46995 Immediate Suspension Order) (citing 21 adjust the 2016 aggregate production
(1993). U.S.C. 822(b) and 841(a)(1); 21 CFR
Here, the Government’s evidence quotas for several controlled substances
1301.12(a) and 1306.04(a)). Notably, in schedules I and II of the Controlled
shows that upon being served with an under the public interest standard, the
Order to Show Cause and Immediate Substances Act and assessment of
Agency is required to consider both the annual needs for the list I chemicals
Suspension of Registration which Applicant’s ‘‘experience in dispensing
alleged that he had prescribed ephedrine, pseudoephedrine, and
. . . controlled substances’’ and his phenylpropanolamine.
controlled substances in violation of the ‘‘[c]ompliance with applicable State,
CSA, Applicant surrendered his Federal, or local laws relating to DATES: Interested persons may file
registration. GXs 3 & 4. Moreover, on the controlled substances.’’ 21 U.S.C. written comments on this notice in
Voluntary Surrender form, Applicant 823(f)(2) & (4). See also Shannon L. accordance with 21 CFR 1303.13(c) and
acknowledged that he was doing so Gallentine, D.P.M., 76 FR 45864, 45866 1315.13(d). Electronic comments must
‘‘[i]n view of my alleged failure to (2011). be submitted, and written comments
comply with the Federal requirements Thus, notwithstanding that the must be postmarked, on or before
pertaining to controlled substances.’’ GX Agency did not grant his application, August 22, 2016. Commenters should be
4. Yet days later, Applicant applied for his false answer was still material as it aware that the electronic Federal Docket
a new registration and provided a ‘‘no’’ was capable of influencing the decision Management System will not accept
answer to the question: ‘‘[h]as the as to whether to grant his application. comments after 11:59 p.m. Eastern Time
applicant ever surrendered (for cause) or See United States v. Alemany Rivera, on the last day of the comment period.
had a federal controlled substance 781 F.2d 229, 234 (1st Cir. 1985) (‘‘It Based on comments received in
registration revoked, suspended, makes no difference that a specific response to this notice, the
restricted or denied, or is any such falsification did not exert influence so Administrator may hold a public
action pending?’’ GX 1, at 1, 3. long as it had the capacity to do so.’’); hearing on one or more issues raised. In
Applicant’s answer was false as he United States v. Norris, 749 F.2d 1116, the event the Administrator decides in
ehiers on DSK5VPTVN1PROD with NOTICES
had clearly surrendered his registration 1121 (4th Cir. 1984) (‘‘There is no his sole discretion to hold such a
for cause. His false answer was also requirement that the false statement hearing, the Administrator will publish
material as ‘‘it ‘ha[d] a natural tendency influence or effect the decision making a notice of any such hearing in the
to influence, or was capable of process of a department of the United Federal Register. After consideration of
influencing, the decision of’ the States Government.’’). Accordingly, I any comments or objections, or after a
decisionmaking body to which it was conclude that Applicant materially hearing, if one is held, the
addressed.’’ Kungys v. United States, falsified his September 2012 application Administrator will publish in the
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Document Created: 2016-07-22 02:38:32
Document Modified: 2016-07-22 02:38:32
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
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| FR Citation | 81 FR 47826 |
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