[Federal Register Volume 76, Number 160 (Thursday, August 18, 2011)]
[Notices]
[Pages 51417-51424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21062]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 10-2]


Surinder Dang, M.D.; Revocation of Registration

    On August 31, 2009, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Surinder Singh Dang, M.D. (``Respondent''), of Fountain 
Valley, California. The Order proposed the revocation of Respondent's 
DEA Certificate of Registration, AD6122143, as a practitioner, as well 
as the denial of any pending applications to renew or modify his 
registration ``for reason that [Respondent's] continued registration[] 
would be inconsistent with the public interest, as that term is used in 
21 U.S.C. 823(f) and 824(a)(4).'' ALJ Ex.1, at 1.
    The Order specifically alleged that between January 2004 and July 
2007, Respondent and his wife, Dr. Satinder Dang, ``who also possesses 
a DEA registration and shares [Respondent's] registered location,'' 
ordered ``more than 5,000,000 dosage units of hydrocodone'' and that 
Respondent ``failed to properly account for, secure, and otherwise 
handle these controlled substances.'' Id. The Order alleged that on 
January 17, 2006, one of Respondent's ``employees removed 30,000 dosage 
units of controlled substances'' from his registered location and 
``attempted to take them to her residence.'' Id. The Order further 
alleged that on the same day, ``DEA Special Agents seized another 
10,000 dosage units of controlled substances from this employee's 
residence.'' Id. at 1-2. Continuing, the Order alleged that on March 
16, 2006, ``DEA Special Agents seized 50,000 dosage units more from 
this employee's residence.'' Id. at 2.
    Next, the Order alleged that on March 16, 2006, DEA conducted an 
accountability audit of Respondent's handling of hydrocodone and that 
Respondent ``could not account for more than 3,500,000 dosage units'' 
that Respondent and his wife ``had ordered,'' and that Respondent 
``failed to keep accurate and complete records of each controlled 
substance received, sold, delivered, or otherwise disposed of as 
required by 21 U.S.C. 827(c) and 21 CFR 1304.01 et seq.'' Id. Finally, 
the Order alleged that when Respondent ``made dispensing records,'' he 
``frequently failed to indicate whether'' he or his wife ``actually 
dispensed the controlled substances as required by 21 CFR 1304.03(b).'' 
\1\ Id.
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    \1\ In its Prehearing Statement, the Government also alleged 
that ``two agents interviewed patient [B.R.]'' who Respondent had 
``treated for leg pain'' and that he ``did not examine [B.R.] 
thoroughly * * * but did dispense Vicodin to her.'' Gov. Prehearing 
Statement at 10. The Government further alleged that B.R. 
subsequently saw ``another physician who informed her she was being 
overmedicated with Vicodin and * * * [who] ordered a number of tests 
* * * and determined that a problem in her back was causing her 
pain.'' Id. Finally, the Government alleged that sometimes R.K. 
``dispensed the Vicodin to [B.R.] instead of [Respondent]'' and that 
``[o]ften she came to the office to have [R.K.] dispense the Vicodin 
to her without ever seeing or consulting with'' Respondent. Id.
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    By letter of October 2, 2009, Respondent, through his counsel, 
requested a hearing on the allegations. ALJ Ex. 2. The matter was then 
assigned to an Administrative Law Judge (ALJ), who conducted a hearing 
on March 3, 2010, in Santa Ana, California.
    At the hearing, the Government called one witness to testify and 
introduced documentary evidence. Respondent did not call any witnesses 
and introduced a single exhibit, this being a letter from the counsel 
for Respondent's employee R.K. stating that she intended to assert her 
Fifth Amendment privilege if called to testify. See RX 1. Following the 
hearing, both parties submitted briefs containing their proposed 
findings of fact, conclusions of law and argument.
    On May 19, 2010, the ALJ issued her Recommended Decision (also 
ALJ). Therein, the ALJ considered the five public interest factors, see 
21 U.S.C. 823(f), and concluded that Respondent's continued 
registration would be inconsistent with the public interest and 
recommended that his registration be revoked. ALJ at 26, 30-31.
    As to the first factor--the recommendation of the appropriate State 
licensing board or professional disciplinary authority--the ALJ found 
that the California Medical Board ``has not taken any formal action to 
limit Respondent's right to practice medicine nor has it recommended 
limiting his ability to prescribe controlled substances.'' Id. at 23. 
However, the ALJ recognized that under Agency precedent ``the fact that 
the Medical Board of California has currently authorized * * * 
Respondent to practice medicine is not dispositive in this 
administrative determination as to whether continuation of a 
registration is consistent with the public interest.'' ALJ at 22-23 
(citing Patrick W. Stodola, 74 FR 20727, 20730 (2009); Jayam Krishna-
Iyer, 74 FR 459, 461 (2009)). The ALJ thus concluded that ``this factor 
does not fall in favor of revocation.'' Id. at 23. Likewise, with 
respect to factor three--Respondent's record of convictions for 
offenses relating to the manufacture, distribution, or dispensing of 
controlled substances--the ALJ found that Respondent has not been 
convicted of such an offense and that this factor also did not ``fall 
in favor of revocation.'' Id.
    The ALJ then considered factors two and four--Respondent's 
experience in dispensing controlled substances and his compliance with 
Federal, State, and local laws relating to controlled substances--
together. Id. at 23-26. The ALJ specifically found that: (1) 
``Respondent authorized'' his employee R.K. ``to purchase large amounts 
of hydrocodone using his DEA registration and that of his wife''; (2) 
another physician who practiced at Respondent's clinic had ``stated 
that the patient load'' at the clinic ``would not justify such large 
purchases of controlled substances''; (3) R.K. remained in Respondent's 
employ even after ``drugs were discovered in [her] personal vehicle by 
the California Highway Patrol''; (4) ``[l]arge bundles of cash, 
controlled substances, and other * * * evidence, such as receipts and 
money order stubs were discovered at [her] home''; and (5) ``[a]fter 
being questioned, [R.K.] stated that she was ordering and transporting 
controlled substances all at the direction of the Respondent.'' Id. at 
24. Based on these findings, the ALJ concluded that ``either 
[Respondent] is personally involved in hydrocodone diversion or he is 
facilitating such diversion on the part of his employee.'' Id.
    The ALJ further found that Respondent ``prescribed Vicodin,'' a 
schedule III controlled substance, to patient B.R. ``on many occasions 
without a thorough examination.'' Id. Based on Cal. Bus. & Prof. Code 
Sec.  2242(a), which provides that it is ``unprofessional conduct'' to 
``[p]rescrib[e], dispens[e] or furnish[ ] dangerous drugs as defined in 
Section 4022 without an appropriate prior examination and a medical 
indication,'' the ALJ concluded that Respondent prescribed Vicodin to 
B.R. without an ``appropriate prior examination.'' Id. at 25. The ALJ 
thus concluded that Respondent ``prescribed controlled substances 
without establishing a bona-fide patient relationship'' and violated 
both Federal and state law. Id. at 24-25.
    Next, the ALJ found that Respondent did not have any inventories 
for the controlled substances his clinic dispensed, that he ``failed to 
maintain accurate records of the controlled

[[Page 51418]]

substances he dispensed,'' and that an audit could not account for 
``almost four million dosage units of hydrocodone.'' Id. at 26. The ALJ 
thus concluded that Respondent ``violated federal regulations by not 
conducting a biennial inventory and maintaining the appropriate records 
of his controlled substances.'' Id. The ALJ further held that the 
Government's evidence under factors two and four ``established prima 
facie grounds for revocation of * * * Respondent's DEA Certificate of 
Registration.'' Id.
    Turning to factor five--other conduct which may threaten the public 
health and safety--the ALJ found ``it likely that * * * Respondent is 
engaged in the illegal diversion of hydrocodone.'' Id. As support for 
her conclusion, the ALJ noted her findings that Respondent ``was 
involved in the ordering of the hydrocodone,'' that ``[h]is colleagues 
stated that his practice did not justify such exorbitant purchases,'' 
his inability ``to account for the whereabouts of the controlled 
substances,'' and the ``circumstances,'' which she did not further 
specify, ``surrounding [the DEA Group Supervisor's] investigations.'' 
Id. According to the ALJ, these facts ``suggest[ed] that * * * 
Respondent is at least recklessly, if not intentionally, contributing 
to this illegal diversion.'' Id.
    The ALJ further explained that ``[e]ven if Respondent did not 
commit the above violations of Federal law and DEA regulations,'' she 
would still find that he had ``committed acts which constitute `conduct 
which may threaten the public health and safety' and which render his 
registration `inconsistent with the public interest.''' Id. (quoting 21 
U.S.C. 823(f)(5) & 824(a)(4)). Noting that ``[u]nder DEA precedent, a 
registrant who entrusts his registration to another person is strictly 
liable for the latter's misuse of his registration,'' the ALJ reasoned 
that ``even if there had been no conspiracy between Respondent and 
[R.K.] to unlawfully distribute the drugs, he would still be liable for 
the acts she committed while being allowed to use his registration.'' 
ALJ at 26-27 (citations omitted). The ALJ concluded that ``Respondent 
is thus liable for [R.K.'s] acts of unlawful possession and 
distribution of the controlled substances that she obtained under his 
registration.'' \2\ Id. (citations omitted).
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    \2\ The ALJ also rejected Respondent's argument that R.K. had 
stolen the drugs, noting that as of the hearing, she was still an 
employee. Id. at 27 (citations omitted).
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    The ALJ then addressed whether Respondent had rebutted the 
Government's prima facie case. ALJ at 29-30. The ALJ found that 
``Respondent has not admitted any fault whatsoever,'' but rather ``has 
merely pointed an accusing finger at his employee.'' Id. at 30. Noting 
that Respondent did not testify in the proceeding, the ALJ concluded 
that ``[t]he fact that the Respondent has chosen not to hold himself 
accountable for his own indiscretions weighs heavily against his 
continued registration.'' Id. While the ALJ further considered facts 
she deemed favorable to Respondent, she nonetheless concluded that 
``none of these factors outweigh the overwhelming security violations 
and evidence of diversion,'' which she deemed to be ``egregious.'' Id. 
at 31. The ALJ therefore recommended that I revoke Respondent's 
registration. Id.
    Neither party filed exceptions to the ALJ's decision. Thereafter, 
the record was forwarded to me for Final Agency Action. Having 
considered the entire record, I adopt the ALJ's findings of fact and 
conclusions of law except as expressly noted herein. I further adopt 
the ALJ's ultimate conclusion that Respondent's ``continued 
registration is not in the public interest,'' id. at 30, and her 
recommendation that his registration be revoked. As ultimate 
factfinder, I make the following findings:

Findings

    Respondent is the holder of DEA Certificate of Registration, 
AD6122143, which authorizes him to dispense controlled substances in 
schedules II through V, as a practitioner, at the registered location 
of 17150 Euclid 200, Fountain Valley, California. GX 1. While 
Respondent's registration was to expire on June 30, 2009, Id., on May 
13, 2009, Respondent filed an application to renew his registration. GX 
2. Accordingly, his registration remains in effect pending the issuance 
of this Decision and Final Order. 5 U.S.C. 558(c); see also ALJ Ex. 3, 
at 2 (Prehearing Order; Stipulations).
    Respondent currently holds a license to practice medicine in 
California and the California Medical Board has not taken any formal 
action to limit his ability to practice medicine or to prescribe 
controlled substances. ALJ Ex. 3, at 3. Also, Respondent has not been 
convicted of an offense related to the manufacture, distribution, or 
dispensing of controlled substances. Id.
    Respondent is married to Satinder Dang, M.D.\3\ She and Respondent 
practice medicine at Complete Medical Care, Inc. (``CMC''). Tr. 41; GX 
6, at 20. Their son, Sameer Dang, also works in the CMC office. Tr. 51. 
At all relevant times (including through the date of the hearing) CMC's 
office manager was Ms. Rani K.\4\ (R.K.). Id. at 26, 164.
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    \3\ Dr. Satinder Dang holds DEA Certificate of Registration, 
AD9234446; she is registered at the same address as Respondent. ALJ 
Ex. 3, at 2
    \4\ R.K.'s first name is spelled as both Rani and Roni in 
various documents.
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    In November 2005, a Diversion Group Supervisor (GS) in DEA's 
Riverside Diversion Group reviewed ARCOS \5\ records and found that 
Respondent was the largest purchaser of controlled substances from Anda 
Pharmaceuticals, Inc. (``Anda''). Tr. 21. The GS also determined that 
Respondent was buying controlled substances ``from other companies 
too.'' Id.
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    \5\ Pursuant to 21 CFR 1304.33(c), manufacturers and 
distributors of various controlled substances including schedule III 
narcotics are required to report their distributions of controlled 
substances to DEA through the Automated Records and Consolidated 
Orders System (ARCOS). See also Tr. 21-22.
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    Of particular concern to the GS were Respondent's purchases of 
hydrocodone, a schedule III controlled substance. Tr. 22; 21 CFR 
1308.13(e)(iv). According to ARCOS records, while in 2004, Respondent 
purchased 190,600 tablets of hydrocodone from all suppliers, in 2005, 
he purchased 1,353,600 such tablets. Tr. 24; GX 4, at 2-6. ARCOS data 
further showed that in 2005, Respondent and his wife had ordered a 
combined total of 3,626,400 tablets of hydrocodone. GX 3, at 13; GX 4, 
at 6; see also Tr. 121, 124 (GS's testimony that between January 1, 
2005 and March 16, 2006, Respondent and his wife purchased 
approximately four million tablets of hydrocodone).
    Upon reviewing the ARCOS data, the GS contacted several of the 
firms that were distributing controlled substances to Respondent. See, 
e.g., GX 6, at 7. At several points throughout the investigation, these 
firms provided copies of various documents to the GS including sales 
records, invoices, statements of account, delivery records, 
applications for credit, and correspondence.\6\ See generally GX 5 
(records from Moore Medical, L.L.C.), GX 6 (record from Henry Schein, 
Inc.), GX 9 (records from ParMed Pharmaceuticals, Inc.).
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    \6\ Some of the documents may have been obtained pursuant to a 
search warrant.
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    Throughout the investigation, several of the firms also provided 
the GS with information regarding when various deliveries were to be 
made to Respondent's clinic. On December 14, 2005, the GS, who had 
received information from two different distributors (Henderson and 
Moore Medical) that controlled substances

[[Page 51419]]

deliveries were to be made that day, conducted ``surveillance at the 
[Dangs's] clinic'' from 9 a.m. to 6 p.m. Tr. 39-42. During the 
surveillance, the GS observed both deliveries and noted that ``no more 
than ten or fifteen'' people entered the clinic that day. Id. at 41-42.
    On January 13, 2006, from ``[m]orning till late afternoon,'' the GS 
conducted a second surveillance. Id at 42. During the surveillance, the 
GS saw Ms. R.K. ``taking boxes out of the clinic and plac[ing] them in 
her vehicle,'' which was ``a green SUV.'' Id. at 42-43.
    On January 17, 2006, from 9 a.m. to 6 p.m., the GS, who had 
received notice of a controlled substance delivery from another 
distributor (ParMed Pharmaceuticals, Inc.), conducted another 
surveillance. Id. at 43. Once again, Investigators observed R.K. 
``tak[e] boxes from the clinic'' and place them in ``her vehicle.'' Id. 
at 44. The GS observed R.K. drive away and notified the California 
Highway Patrol (CHP). Id. at 44-45. After observing R.K., who was 
driving forty miles per hour, operate her vehicle within five feet of 
the vehicle in front of her, a CHP officer conducted a traffic stop. 
Id. at 45; GX 10 at 2.
    As he approached R.K., the CHP officer observed ``cardboard boxes 
that were taped shut in the rear cargo area.'' GX 10, at 2. The CHP 
officer advised R.K. of the reason for the stop and requested her 
license, registration, and insurance. Id. He then asked R.K. ``what the 
boxes were.'' Id. R.K. stated that the boxes held Vicodin, a schedule 
III controlled substance which contains hydrocodone. Id.; ALJ Ex. 3, at 
1. When the CHP officer asked R.K. if she was a doctor, she stated that 
``she was the president of a medical facility and that she was going to 
give the Vicodin to the doctor at her facility.'' GX 10, at 2. The CHP 
Officer asked her a second time if she was a doctor; R.K. again said 
``no'' and became ``extremely nervous.'' Id.
    After the CHP Officer asked R.K. to step out of her car, he asked 
``why she had cases of Vicodin.'' Id. She responded that she ran a 
medical office and handed him a business card listing her name as R.K. 
and her position as ``president.'' Id. R.K. further stated that ``she 
received a delivery of Vicodin from a delivery company at about 1100 
hours and that she needed to give it to'' Respondent. Id. When the 
Officer asked R.K. if the Vicodin had been delivered ``to her car or to 
her office,'' R.K. stated that it had been delivered to the office. Id. 
When the Officer asked if her office had a locker in which to store the 
Vicodin, R.K. answered ``yes,'' but added that she had to personally 
give the drugs to Respondent. Id.
    The CHP Officer then asked how the Vicodin had ended up in her 
vehicle, R.K. stated that ``she [had] carried the boxes to her vehicle 
around noon time and left them there,'' and that she had stayed in her 
office until about 5 p.m., at which point ``she left * * * to get 
something to eat.'' Id. When the Officer told R.K. that he was 
``concerned that she was in possession of so much of a controlled 
substance,'' R.K. said she would return it to the office. Id. R.K. then 
stated that Respondent was ``doing a procedure at an unknown hospital 
and he would be returning at an unknown time to the office'' and that 
she would then give him the Vicodin. Id.
    The CHP Officer then ``asked R.K. to open the boxes'' to confirm 
that they contained Vicodin. Id. R.K. opened six boxes containing a 
total of 70 bottles of hydrocodone bitartrate/acetaminophen 
(hereinafter, hydrocodone/apap or hydrocodone). Id. at 2-3. Each of the 
bottles contained between 100 and 500 tablets (for a total of 
``approximately 31,000 tablets'') in 7.5/500 mg, 10/500 mg, and 10/325 
mg strengths. Id. The Officer then seized the Vicodin and gave R.K. a 
receipt for it. Id. After giving R.K. a citation, the officer allowed 
her to leave. Id. at 3.
    The CHP Officer then contacted a DEA Task Force Officer (TFO) and 
arranged to transfer custody of the drugs to DEA; upon the TFO's 
arrival at the Officer's location, the TFO took possession of the 
drugs. Id. The TFO gave the CHP Officer a receipt which confirms the 
figures in the latter's report.\7\ Id. at 6.
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    \7\ More specifically, there were 14 bottles of 500 count of 
hydrocodone/apap 7.5/500 mg, 10 bottles of 500 count hydrocodone/
apap 10/500 mg, 36 bottles of 500 count hydrocodone/apap10/325 mg, 
and 10 bottles of 100 count hydrocodone/apap 10/500 mg. GX 10, at 6.
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    R.K. then drove to her residence in Anaheim Hills; Investigators 
followed her there in order to question her about the drugs that were 
found in her vehicle. Tr. 47. R.K. told the Investigators that she had 
taken the hydrocodone with her for safekeeping because Respondent was 
out of the office; she also maintained that she intended to return them 
to the office after she ate. Id. at 47-48. While R.K. initially claimed 
that this was the first time she had done this, upon being confronted 
with the fact that Investigators had on another occasion observed her 
placing boxes in her vehicle, she admitted that this was the second 
time she had done so. Id. at 48.
    R.K. stated that there were about five physicians who worked at 
Respondent's clinic, that they dispensed the pills in 30 and 60-count 
bottles, and that the clinic had approximately twenty to twenty-five 
patients per day. Id. R.K. further said that she used her personal 
credit card to purchase drugs from wholesalers and that Respondent 
would reimburse her with cash. Id. at 49. R.K. would then obtain money 
orders to pay off her credit card bills. Id.
    The Investigators then asked R.K. if she would consent to a search 
of her residence; she agreed. Id. at 49-50. According to the GS, the 
Investigators found approximately $69,500 in cash in an upstairs 
closet, which was ``wrapped up in paper''; a ``small quantity of 
drugs,'' which included 2000 lorazepam tablets and 1400 hydrocodone 
tablets; ``a lot of money order stubs''; ``some bank records''; and 
``[s]ome credit card information.'' Id. at 50, 113, 117. The GS 
testified that these records confirmed that R.K. paid her credit card 
bills with money orders. Id. at 50. However, on cross-examination, the 
GS acknowledged that he had no documentary evidence to substantiate 
R.K.'s assertion that Respondent reimbursed her in cash. Id. at 146. To 
explain the cash, R.K. claimed the sum was a combination of money she 
received from the sale of a house in India, a home-based business she 
had previously run, and a gift from relatives. Id. at 51, 142.
    On cross-examination, the GS acknowledged that the amount of drugs 
found at R.K.'s residence could indicate she was stealing drugs from 
Respondent's clinic. Id. at 116. The GS further testified that at the 
time of the search, the street value of hydrocodone tablets was between 
three and five dollars per pill. Id. at 132.
    On February 7, 2006, the GS obtained notice of another delivery of 
controlled substances and conducted another surveillance. Id. at 51-52. 
While on this date, UPS made a delivery, nothing was moved out of CMC. 
Id. at 52.
    On February 24, 2006, Respondent wrote a letter to CHP requesting 
the return of the hydrocodone which had been seized during the traffic 
stop of R.K. Tr. 52-53; GX 12. The letter stated that R.K. was 
Respondent's ``office manager,'' and that she had ``informed CHP that 
the property was not hers, and instead belonged to her employer, 
Complete Medical Care Inc.'' GX 12.
    On March 16, 2006, DEA executed search warrants at both 
Respondent's clinic and R.K.'s residence. Tr. 61, 67-68, 70. At the 
clinic, the Investigators took an inventory of the controlled 
substances on hand and found 48,000 tablets of hydrocodone, which they 
seized; the Investigators also seized CMC's controlled substance 
purchasing records and dispensing log. Id. at 94.

[[Page 51420]]

During the search of the clinic, Respondent declined to be 
interviewed.\8\ Tr. 68.
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    \8\ Later that day, Investigators went to Respondent's residence 
and sought consent to search his house. Tr. 69. Respondent and his 
wife declined to provide consent. Id.
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    The Investigators did, however, interview four of Respondent's 
employees and a patient who was present. A.N. had been a medical 
assistant at CMC since 1992; her duties involved taking patients to the 
examination room. Id. at 86-87. A.N. told the Investigators that R.K. 
inventoried the drugs when they arrived at CMC and also maintained the 
dispensing log. Id. at 89-91. She also stated that the dispensings to 
patients were noted in the patient records and identified the 
handwriting in the dispensing log as R.K's. Id. at 89, 91-92.
    K.G. had been a medical assistant at CMC for seven months; her 
duties included taking patients' blood pressure, drawing blood, and 
performing other tests. Id. at 92-93. K.G. stated that both R.K and 
Respondent ordered the drugs for CMC. Id. at 94. K.G. further stated 
that R.K. usually accepted deliveries of drug orders; however, 
sometimes K.G. would accept delivery of drug orders and she ``would 
leave them unopened for R.K. to handle.'' Id. at 93. K.G. commented 
that she saw only R.K. write in the dispensing log. Id. at 95.
    L.Y. had been hired as medical assistant in November 2005; her 
responsibilities included the scheduling of appointments and flu shots. 
Id. at 95-96. According to L.Y., the clinic saw twenty to twenty-five 
patients per day. Id. at 97. L.Y. also stated that both Respondent and 
R.K. handled the drugs once they had arrived. Id. at 96. When shown the 
dispensing log, L.Y. identified handwriting belonging to both 
Respondent and R.K.; she also stated that Respondent's wife primarily 
prescribed drugs, while Respondent typically dispensed them. Id. at 97.
    S.B. had worked at CMC for three years and did patient billing. Id. 
at 98. S.B. stated that R.K. would order the drugs and that Sameer Dang 
(Respondent's son) would check the deliveries. Id. at 98-99. She also 
stated that R.K. handled the dispensing log. Id. at 100.
    S.B. further stated that CMC had approximately twenty-five patients 
per day, of which fifteen saw Respondent and ten saw his wife. Id. 
According to S.B., both Sameer Dang and R.K. paid for the drugs.\9\ Id. 
She also said that both Respondent and R.K. had access to the 
controlled substances received at the CMC office. Id. at 103.
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    \9\ S.B. also told Investigators that Respondent had changed the 
clinic's procedures and now required R.K. to get his approval before 
she dispensed any drugs. Tr. 101-02.
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    As found above, on March 16, 2006, DEA Investigators also executed 
a search warrant at R.K.'s residence. Id. at 70. R.K. was present 
during the search and was interviewed during which she provided ``the 
same information'' as she had two months earlier. Id. at 71. R.K. 
stated that since January 17, 2006, she had stopped using her personal 
credit card to order the drugs and only dispensed drugs in the presence 
of a physician. Id. at 72. R.K. also stated that all of the clinic's 
drug orders were approved by Respondent. Id. Finally, R.K. stated that 
Respondent was the clinic's ``primary dispenser'' of the drugs. Id.
    In April 2006, the GS interviewed Dr. B., one of the physicians 
listed as being part of Respondent's clinic. Id. at 76. Dr. B. stated 
that he had worked at CMC for about five years on a part-time basis. 
Id. Dr. B., who also worked at a psychiatric facility for the local 
county government, saw some of these patients at Respondent's clinic. 
Id. at 77-78.
    Dr. B. stated that he rarely prescribed controlled substances to 
his patients, and that when he did, he did not dispense drugs. Id. at 
78. He also stated that the patient load at CMC did not justify the 
quantities of controlled substances that were being purchased by the 
clinic. Id. at 79.
    In May 2006, a Diversion Investigator (DI) interviewed one of 
Respondent's patients, A.A., who said that she saw him for knee pain 
and ``asthmatic issues.'' Tr. 81. A.A. had worked for twelve years as a 
patient care representative in ``a couple hospitals''; at one, she was 
the Quality Care Coordinator with ``duties related to medical, 
financial counseling and medical billing.'' Id. at 81-82.
    A.A. stated that on several occasions during her visits to 
Respondent's clinic, she observed R.K. take persons ``into a back 
room'' and that ``several minutes later,'' these persons ``would come 
out with bags in their hands.'' Id. at 83. A.A. stated that she did not 
believe these persons had seen Respondent. Id. A.A. further stated (and 
wrote a letter to DEA to the same effect) that she had told Respondent 
that R.K. ``was * * * dispensing drugs in some form or fashion, or 
selling medications without'' the patients ``seeing the doctor.'' Id.
    The Government also submitted into evidence a portion of a Report 
of Investigation relating an interview of another of Respondent's 
patients, B.R. Tr. 167; see also GX 17. According to the Report, B.R. 
told Investigators that she had been Respondent's patient since 2001 
and had been treated for leg pain. GX 17, at 1. B.R. stated that 
Respondent ``did not examine her thoroughly and did not request any 
tests,'' yet he dispensed Vicodin to her. Id. B.R. further stated that 
she had started seeing another physician who examined her thoroughly 
and ordered an MRI and X-ray. Id. B.R.'s new doctor concluded that her 
back was the cause of her leg pain and that she was over-medicated; he 
referred her to a pain clinic. Id.
    B.R. further said that she was buying bottles of 100 tablets of 
Vicodin 7.5 mg every two weeks for $20 per bottle and that Respondent 
had instructed her to take the Vicodin as needed with no further 
instructions. Id. Both R.K. and Respondent had given Vicodin to her, 
and on occasion she would simply telephone R.K. for a refill and 
receive it from her without seeing Respondent. Id. at 2.
    However, the report of B.R.'s interview contains no evidence 
suggesting that she was not a legitimate patient. Moreover, the 
Government did not introduce B.R.'s patient record into evidence and 
offered no evidence (beyond the conclusory assertion that his exam was 
not thorough) regarding the scope of the physical examination 
Respondent performed on her. Nor did it offer any evidence from an 
Expert (whether through testimony or a report) establishing that 
Respondent failed to perform a medically appropriate prior examination 
and lacked a medical indication when he prescribed Vicodin to B.R.
    Using the records seized during the search of Respondent's clinic 
and its patient files (which were subsequently obtained with 
Respondent's consent), ARCOS data, and information provided by several 
of the distributors,\10\ the GS conducted an audit of the hydrocodone 
ordered under both Respondent's and his wife's registrations between 
January 1, 2005 and March 16, 2006. Tr. 59-60, 67; GX 15. Because the 
Dangs did not maintain records of their inventory (notwithstanding 
Federal law requiring them to do so, see 21 U.S.C. 827(a) & (b)), the 
GS chose January 1, 2005 as the starting date and assumed that no

[[Page 51421]]

controlled substances were then on hand; for the closing inventory, the 
GS used the inventory taken (48,000 tablets) when the search warrant 
was issued.\11\ Tr. 59-60; GX 15. To this latter figure, the DI added 
the hydrocodone that was seized during the January 17, 2006 traffic 
stop of R.K. (31,000 tablets) and the 1,400 tablets found during the 
search of R.K.'s residence which occurred later that day.\12\
---------------------------------------------------------------------------

    \10\ Moore Medical provided DEA with records of its hydrocodone 
sales under Respondent's registration from late 2005 to early 2006. 
Tr. 25; GX 5. ANDA provided DEA with a spreadsheet listing all sales 
under the registrations of Respondent and his wife from May 2000 
through mid-October 2005. Tr. 30; GX 8. DEA also acquired sales 
records and a sales summary from ParMed which show Respondent's 
purchases of controlled substances between November 28, 2005 and 
January 4, 2006. GX 9.
    \11\ The practical effect of assigning a zero starting inventory 
is to reduce the size of any shortage.
    \12\ According to the computation chart prepared by the GS, he 
used 1200 tablets as the amount seized during the search of R.K.'s 
residence. GX 15, at 1. As the ALJ noted, given that the audit found 
that nearly four million tablets could not be accounted for, the 
error is inconsequential. ALJ at 13 n.5.
---------------------------------------------------------------------------

    Using both the ARCOS data and distributor invoices, the GS 
determined that 4,037,900 tablets of hydrocodone had been ordered 
during the audit period.\13\ Tr. 61; GX 15. The clinic's dispensing 
logs, which did not identify which doctor had authorized the various 
dispensings, see GX 14, showed that only 12,000 tablets had been 
dispensed; \14\ in addition, the GS reviewed the clinic's patient files 
and determined that another 75,000 tablets had been dispensed.\15\ Tr. 
61-63, 119, 129; GXs 12, 15. Accordingly, the Dangs could only account 
for approximately 167,000 tablets of hydrocodone.\16\ Tr. 64-65, 119; 
GX 15. Thus, Respondent (and his wife) could not account for 
approximately 3,870,500 tablets.\17\ Tr. 66, 119; GX 15.
---------------------------------------------------------------------------

    \13\ Respondent does not contend that the GS double-counted any 
of the orders that were used in calculating this figure.
    \14\ The dispensing logs also did not contain the name of the 
dispensing physician, the initials of the person dispensing the 
drugs, and the patient's address as required by 21 CFR 1304.22(c). 
Tr. 58, 147; see also GX 14. Moreover, while there were some 
dispensing logs from 2003, the remaining logs only covered the 
period from February 28 through March 15, 2006. Tr. 57; see also GX 
14.
    \15\ The GS credited CMC with dispensing 87,000 tablets of 
hydrocodone as he could not determine whether the dispensings 
recorded in the dispensing logs overlapped with those noted in the 
patient files. Tr. 129-30.
    \16\ Neither Respondent nor his wife had reported to DEA any 
thefts, losses, or destructions of controlled substances. Tr. 65.
    \17\ According to the GS, the street value of a hydrocodone 
tablet is between three to five dollars, Tr. 132, and that the value 
of the drugs, which Respondent could not account for, would be about 
$15 to 20 million. Id. at 133. The GS also acknowledged that 
although the Government had seized various accounts controlled by 
R.K., Respondent and his wife, he found no evidence of bank deposits 
approaching this amount; nor did he find evidence of extravagant 
purchases. Tr. 134-35.
---------------------------------------------------------------------------

    Among the documents the Government entered into evidence is a 
November 7, 2005 letter from Respondent to J.N., a compliance 
coordinator at Henry Schein. GX 6, at 20. Therein, Respondent wrote 
that he was the Medical Director of ``a multiple specialty medical 
group,'' comprised of five physicians including himself, his wife, the 
aforementioned Dr. B., as well as Drs. H.L. and D.S. Id. Respondent 
further wrote that the clinic had ``introduced a program of dispensing 
some medications to our patients'' for their ``convenience * * * and to 
help them save some money.'' Id. Respondent also wrote that his clinic 
``provide[s] physical therapy and pain management to our patients,'' 
that it ``dispense[d] medications to our patients only,'' and that the 
``practice has been growing.'' Id.
    The Government also entered into evidence a credit application 
submitted on behalf of CMC to ParMed. GX 9, at 4. The application, 
which is dated November 21, 2005, lists Respondent as the person making 
the application; his name is printed in the signature block (which is 
signed), and the application also contains the name of a ParMed Sales 
Representative.\18\ See id.
---------------------------------------------------------------------------

    \18\ The application also lists R.K. as the ``accounts payable 
contact.'' GX 9, at 4.
---------------------------------------------------------------------------

    The Government further entered into evidence reports prepared by 
ParMed on January 5, 2006, which list ParMed's controlled substance 
distributions to Respondent and his wife. See id. at 1-2. The report 
for Respondent's wife bears a handwritten note, which according to the 
GS, was written by D.L., an employee of ParMed's regulatory affairs 
section. Tr. 34-35. The note read: ``pain management--group of Dr's--
about 30 Dr's in this medical group & she purchases for all Dr's (as 
per sales rep).'' GX 9, at 2. The note then listed the names and 
registration numbers of Respondent and his wife and stated: ``Both new 
accounts from 11-05.''\19\ Id.
---------------------------------------------------------------------------

    \19\ The GS testified that on or about January 6, 2006, he had 
spoken with D.L., who told him that R.K. was the contact person for 
Respondent and his wife, and that R.K. had represented to ParMed 
that the reason for the quantities of controlled substances that 
were being ordered was that there were thirty doctors at the clinic. 
Tr. 36-37.
---------------------------------------------------------------------------

    Respondent did not testify in the proceeding and offered only one 
exhibit, a letter from R.K.'s attorney stating that she would invoke 
her Fifth Amendment privilege if called to testify. RX1.

Discussion

    Section 304(a) of the Controlled Substances Act (CSA) provides that 
``[a] registration pursuant to section 823 of this title to * * * 
dispense a controlled substance * * * may be suspended or revoked by 
the Attorney General upon a finding that the registrant * * * has 
committed such acts as would render his registration under section 823 
of this title inconsistent with the public interest as determined under 
such section.'' 21 U.S.C. 824(a)(4). In making the public interest 
determination in the case of a practitioner, Congress directed that the 
following factors be considered:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing * * * controlled 
substances.
    (3) The applicant's conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

21 U.S.C. 823(f).
    ``[T]hese factors are considered in the disjunctive.'' Robert A. 
Leslie, 68 FR 15227, 15230 (2003). I may rely on any one or a 
combination of factors and may give each factor the weight I deem 
appropriate in determining whether to revoke an existing registration 
or to deny an application. Id. Moreover, I am ``not required to make 
findings as to all of the factors.'' Hoxie v. DEA, 419 F.3d 477, 482 
(6th Cir. 2005) (citing Morall v. DEA, 412 F.3d 165, 173-74 (DC Cir. 
2005)).
    With respect to a practitioner's registration, the Government bears 
the burden of proving by a preponderance of the evidence that the 
continuation of a registration would be inconsistent with the public 
interest. 21 CFR 1301.44(d). However, where the Government satisfies 
its prima facie burden, as for example, by showing that a registrant 
has committed acts which are inconsistent with the public interest, the 
burden then shifts to the registrant to demonstrate why he can be 
entrusted with a registration. Medicine Shoppe-Jonesboro, 73 FR 363, 
380 (2008).
    In this matter, having considered the entire record and all of the 
statutory factors, I reject the ALJ's finding that Respondent violated 
Federal and State law when he prescribed Vicodin to B.R. However, I 
agree with the ALJ's conclusions that the Government's evidence under 
factors two, four, and five makes out a prima facie case that 
Respondent has committed acts which render his registration 
inconsistent with the public interest.\20\ ALJ at 26, 30. I

[[Page 51422]]

further agree with the ALJ's conclusion that Respondent has not 
accepted responsibility for his misconduct and that he has not rebutted 
the Government's prima facie case.
---------------------------------------------------------------------------

    \20\ I acknowledge that Respondent holds a valid medical license 
from the State of California. Moreover, the State Board has not 
taken action against him nor made any recommendation in this matter 
(factor one). ALJ Ex. 3, at 3.
    Be that as it may, in enacting the CSA, Congress vested this 
Agency with ``a separate oversight responsibility [apart from that 
which exists in state authorities] with respect to the handling of 
controlled substances.'' Mortimer B. Levin, 55 FR 8209, 8210 (1990). 
DEA has therefore long recognized that it has ``a statutory 
obligation to make its independent determination as to whether the 
granting of [a registration] would be in the public interest.'' Id. 
Accordingly, ``a State's failure to take action against a 
registrant's medical license is not dispositive in determining 
whether the continuation of a registration is in the public 
interest.'' Jayam Krishna-Iyer, 74 FR 459, 461 (2009); see also 
Levin, 55 FR at 8210 (holding that practitioner's reinstatement by 
state board ``is not dispositive'' in public interest inquiry). 
Thus, that the Medical Board of California has taken no action with 
respect to Respondent's medical license is not dispositive in 
determining whether his continued registration is consistent with 
the public interest.
     There is also no evidence that Respondent has been convicted of 
an offense related to the manufacture, distribution, or dispensing 
of controlled substances under either Federal or state law (factor 
three). ALJ Ex. 3. However, while a history of criminal convictions 
for offenses involving the distribution or dispensing of controlled 
substances is a highly relevant consideration, there are any number 
of reasons why a registrant may not have been convicted of (or even 
prosecuted for) such an offense, and thus, the absence of such a 
conviction is of considerably less consequence in the public 
interest inquiry. Krishna-Iyer, 74 FR at 461; Edmund Chein, 72 FR 
6580, 6593 n.22 (2007). Accordingly, that Respondent has not been 
convicted of an offense related to the distribution or dispensing of 
controlled substances is not dispositive of whether the continuation 
of his registration is consistent with the public interest.
---------------------------------------------------------------------------

Factors Two, Four, and Five--Respondent's Experience in Dispensing 
Controlled Substances, Compliance With Applicable Laws Related to 
Controlled Substances, and Other Conduct Which May Threaten Public 
Health and Safety

    The Government's case implicates each of these factors. As found 
above, during an approximately fifteen month period, more than four 
million tablets of highly abused combination drugs containing 
hydrocodone, a schedule III controlled substance, were purchased by 
R.K., Respondent's office manager, using his and his wife's DEA 
registrations. When DEA Investigators audited Respondent's handling of 
hydrocodone, they could account for only 167,000 tablets, leaving 
nearly 3.9 million tablets unaccounted for.\21\ In addition, law 
enforcement authorities found that R.K. had large quantities of 
hydrocodone in her possession during both a traffic stop and a search 
of her residence; Investigators also found a large quantity of cash in 
R.K.'s home.
---------------------------------------------------------------------------

    \21\ During 2005 alone, approximately 1.35 million dosage units 
were ordered under Respondent's registration. Thus, Respondent could 
not account for at least 1.1 million tablets.
---------------------------------------------------------------------------

    At a minimum, the evidence clearly shows that Respondent violated 
the CSA's various recordkeeping provisions. Under Federal law, as soon 
as Respondent ``first engage[d] in the * * * distribution or dispensing 
of controlled substances, and every second year thereafter,'' he was 
required ``to make a complete and accurate record of all stocks thereof 
on hand.'' 21 U.S.C. 827(a)(1) (emphasis added); see also 21 CFR 
1304.03(a)-(b), 1304.04(a) & (g), 1304.11. As found above, during the 
audit, Respondent could not produce an inventory record for any of the 
controlled substances that were purchased under his registration.
    Under Federal law, Respondent was also required to ``maintain, on a 
current basis, a complete and accurate record of each such substance * 
* * received, sold, delivered, or otherwise disposed of by him.'' 21 
U.S.C. 827(a)(3) (emphasis added). With respect to a practitioner who 
engages in dispensing, DEA regulations require that the record include 
``the number of units or volume of such finished form dispensed, * * * 
the name and address of the person to whom it was dispensed, the date 
of dispensing, the number of units or volume dispensed and the written 
or typewritten name or initials of the individual who dispensed * * * 
the substance on behalf of the dispenser.'' 21 CFR 1304.22(c); see also 
id.; 21 CFR 1304.03(a)-(b), 1304.04(a) & (g), 1304.21, 1304.22(c). 
However, as found above, while Respondent had purchased large 
quantities of controlled substances throughout 2004 and 2005, he had no 
dispensing logs for these years and his 2006 logs covered only from 
February 28 through March 15. Moreover, the logs that were maintained 
lacked required information such as the name of the dispensing doctor, 
the initials/name of the person doing the dispensing, and the address 
of the patient. GX 14.
    Recordkeeping is one of the central features of the CSA's closed 
system of distribution. See Paul H. Volkman, 73 FR 30630, 30644 (2008), 
pet. for rev. denied 567 F.3d 215, 224 (6th Cir. 2009). As I have 
previously explained, ``a registrant's accurate and diligent adherence 
to this obligation is absolutely essential to protect against the 
diversion of controlled substances.'' Id. Given that millions of dosage 
units of a highly abused controlled substance that were ordered under 
Respondent's registration cannot be accounted for, his failure to 
comply with the CSA's recordkeeping requirements is egregious. This 
finding provides reason alone to conclude (with respect to factors two 
and four) that his continued registration ``is inconsistent with the 
public interest.'' 21 U.S.C. 823(f); see also Volkman, 73 FR at 30644 
(holding that recordkeeping violations alone supported denial of 
practitioner's application).
    While in his brief, Respondent, who did not testify, acknowledges 
that ``he failed * * * to maintain complete records reflecting his 
dispensing of controlled substances,'' Resp. Br. at 6, he argues that 
R.K. ``ordered, received and paid for'' the drugs, and that she 
``distributed or sold the drugs outside [of] the CMC practice.'' Id. at 
5. Respondent's brief implies that he was unaware of R.K.'s illegal 
activities, and his brief is otherwise silent on the issue of whether 
he bears any responsibility for the missing drugs. See generally id. He 
does.
    DEA has long held that a registrant is strictly liable for the 
misuse of his registration by a person to whom he entrusts his 
registration. See Anthony L. Capelli, 59 FR 42288 (1994); see also 
Harrell E. Robinson, 74 FR 61376, 61377 (2009); Paul H. Volkman, 73 FR 
30630, 30644 n.42 (2008); Rosemary Jacinta Lewis, 72 FR 4035, 4041 
(2007) (citing Capelli); Leonard Merkow, 60 FR 22075, 22076 (1995). The 
record clearly supports the conclusion that Respondent entrusted his 
registration to R.K.
    Moreover, several documents in evidence support the conclusion that 
Respondent was clearly aware that controlled substances were being 
ordered under his registration. These include Respondent's November 
2005 letter to Schein declaring that he had ``decided to order 
medications through your company,'' GX 7, and the credit application he 
submitted to ParMed. GX 9, at 4.
    The evidence also supports the inference that Respondent authorized 
R.K. to use his registration to order controlled substances. Several 
clinic employees told Investigators that R.K. would order the drugs. 
See, e.g., Tr. 94. Moreover, several invoices prepared by Schein, both 
before and after Respondent's November 2005 letter, include the 
notation: ``Roni, Thank you for your order,'' GX 6, at 9, 14-15, 18; 
and on the ParMed credit application, Respondent listed R.K. as his 
accounts payable contact. GX 9, at 4. Finally, R.K. stated in her 
January 2006 interview that, while she paid for the drugs with her 
personal credit card, Respondent reimbursed her with cash. Tr. 94.
    Thus, it is clear that Respondent authorized R.K. to order 
controlled substances using his registration. And even if it were the 
case that Respondent was unaware of R.K.'s illegal activities (although 
it is not), he is still strictly liable for her misuse of his 
registration and his failure to properly monitor how

[[Page 51423]]

his registration was being used. See Jacinta Lewis, 72 FR at 4041-42; 
Robinson, 74 FR at 61377; Volkman, 73 FR at 30644 n.42; Capelli, 59 FR 
at 49288.
    As for Respondent's implicit suggestion that he lacked knowledge of 
R.K.'s activities, the evidence is to the contrary. See Resp. Br. at 5. 
Most significantly, as demonstrated by the letter Respondent sent 
seeking the return of the hydrocodone seized during the traffic stop of 
R.K., he knew that she had removed 31,000 tablets from his clinic. GX 
12. Yet even after this, Respondent continued to employ R.K. (indeed, 
the evidence shows that she was still employed by him as of the date of 
the hearing) and R.K. continued to order controlled substances. See GX 
6, at 5 (Schein invoice dated March 13, 2006 for hydrocodone and 
temazepam and stating: ``RONI, Thank You For Your Order''); Tr. 72. 
This begs the question--which is unanswered because Respondent did not 
testify--as to what he thought R.K. planned to do with the drugs she 
had in her possession when she was stopped by the CHP.\22\
---------------------------------------------------------------------------

    \22\ The GS also related that a patient (A.A.) had told 
Respondent that she believed that R.K. was selling drugs to patients 
who did not see him. Tr. 83.
---------------------------------------------------------------------------

    It is well established that the Agency may draw an adverse 
inference from a respondent's failure ``to testify in response to 
probative evidence offered against'' him. Baxter v. Palmigiano, 425 
U.S. 308, 318 (1976); see also United States v. Solano-Godines, 120 
F.3d 957, 962 (9th Cir. 1997) (``In civil proceedings * * * the Fifth 
Amendment does not forbid fact finders from drawing adverse inferences 
against a party who refuses to testify.''); Dewey C. MacKay, 75 FR 
49956, 49977 (2010). It is appropriate to draw an adverse inference 
here, where the Government produced evidence showing that Respondent 
authorized R.K. to use his registration to obtain massive quantities of 
controlled substances, of which only a small fraction can be accounted 
for, and Respondent failed to testify and respond to this evidence.
    I thus conclude that Respondent knew that R.K. was engaging in 
illegal activity and did nothing to prevent it. Respondent's misconduct 
clearly threatened public health and safety, 21 U.S.C. 823(f)(5), and 
is especially egregious given that nearly four million dosage units of 
hydrocodone cannot be accounted for and were likely diverted.\23\ These 
findings provide further reason to conclude that Respondent's 
registration is ``inconsistent with the public interest.'' \24\ 21 
U.S.C. 823(f); 824(a)(4).
---------------------------------------------------------------------------

    \23\ Respondent elicited testimony from the G.S. that when the 
Government seized the accounts and/or cash of R.K., Respondent, and 
his wife, it did not find a money trail consistent with the 
potential sales value in the illicit market of the unaccounted for 
hydrocodone. However, Respondent offered no evidence challenging the 
results of the audit. Nor has he offered any explanation as to the 
disposition of the unaccounted for drugs. The audit results alone 
provide enough evidence to support the conclusion that the drugs 
were diverted; the Government is not obligated to show that it found 
a money trail consistent with the potential sales value of the drugs 
in the illicit market.
    \24\ The ALJ further found that Respondent ``prescribed 
controlled substances without establishing a bona-fide doctor-
patient relationship'' with B.R. ALJ at 24-25 (citing Cal. Bus. & 
Prof. Code Sec.  2242(a)). The ALJ apparently based her conclusion 
on B.R.'s statement that Respondent ``did not examine her thoroughly 
and did not request any tests.'' GX 17, at 1.
    The evidence suggests, however, that B.R. had a legitimate 
medical complaint, and there is absolutely no evidence (such as 
B.R.'s medical record) other than the conclusory assertion set forth 
above as to the scope of the examination Respondent performed. 
Finally, there is no evidence as to the scope of the medical 
examination necessary to properly diagnose and treat B.R.'s 
condition. I therefore conclude that the ALJ's finding is not 
supported by substantial evidence.
---------------------------------------------------------------------------

Sanction

    Under Agency precedent, where the Government has made out a prima 
facie case that a registrant has committed acts which render his 
``registration inconsistent with the public interest,'' he must 
```present[] sufficient mitigating evidence to assure the Administrator 
that [he] can be entrusted with the responsibility carried by such a 
registration.''' Samuel S. Jackson, 72 FR 23848, 23853 (2007) (quoting 
Leo R. Miller, 53 FR 21931, 21932 (1988)). ``Moreover, because `past 
performance is the best predictor of future performance,' ALRA Labs., 
Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), this Agency has 
repeatedly held that where a registrant has committed acts inconsistent 
with the public interest, the registrant must accept responsibility for 
his actions and demonstrate that [he] will not engage in future 
misconduct.'' Medicine Shoppe-Jonesborough, 73 FR at 387.
    As noted above, Respondent failed to testify in this proceeding. 
While in his brief, he now acknowledges that he violated Federal law 
and DEA regulations by failing to maintain proper records, notably, he 
does not acknowledge his misconduct in failing to properly monitor how 
R.K. was using his registration.\25\ I thus conclude that Respondent 
has not accepted responsibility for his misconduct and has not rebutted 
the Government's prima facie case.\26\
---------------------------------------------------------------------------

    \25\ Because Respondent has not addressed his misconduct in 
failing to prevent the misuse of his registration, I need not decide 
whether the assertion in his brief that he ``recognizes that he 
failed * * * to maintain complete records,'' Resp. Br. at 6, 
satisfies the Agency's rule requiring that he accept responsibility 
for his misconduct. Respondent offered no evidence to support this 
assertion, and statements of counsel in a brief are not evidence. 
See INS v. Phinpathya, 464 U.S. 183, 186 n.6 (1984).
    \26\ While the ALJ concluded that ``Respondent has not admitted 
any fault'' and that he was ``either intentionally engaged in 
diversion or * * * at least facilitating such diversion on the part 
of his employee,'' she nonetheless concluded that ``the inquiry does 
not end here'' and proceeded to analyze what she deemed to be 
favorable facts. ALJ at 30 (citing Martha Hernandez, 62 FR 61,145, 
147 (1997)).
---------------------------------------------------------------------------

    Given the grievous nature of Respondent's misconduct and his 
failure to accept responsibility, none of the ``favorable facts'' cited 
by the ALJ provide any reason to impose a sanction less than 
revocation. While the record may contain no other evidence of 
misconduct on Respondent's part, ALJ at 31, as I have previously 
explained, the fact that a practitioner can point to even an extensive 
body of compliance with the CSA does not negate a prima facie showing 
that he has committed acts inconsistent with the public interest.\27\ 
Jayam Krishna-Iyer, 74 FR 459, 463 (2009). While such evidence is 
entitled to some weight in assessing whether a practitioner has 
credibly shown that he has reformed his practices, where, as here, a 
practitioner commits egregious acts (whether intentional or not) that 
have likely resulted in diversion, and fails to accept responsibility 
for his actions, ``such evidence is entitled to no weight.'' Id. 
Indeed, that there is no other evidence of misconduct on his part does 
nothing to mitigate the harm Respondent has caused to public health and 
safety. Finally, given Respondent's failure to accept responsibility, 
and the nature of his misconduct, I conclude that it would be 
inconsistent with the public interest to grant him even a restricted 
registration. Accordingly, I will order that Respondent's registration 
be revoked and that any pending application be denied.
---------------------------------------------------------------------------

    \27\ To similar effect, the ALJ found that Respondent ``warned 
at least one patient about the dangers surrounding narcotics.'' ALJ 
at 31. As explained in Krishna-Iyer, this finding is too 
insubstantial to warrant any further discussion. 74 FR at 463.
---------------------------------------------------------------------------

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as by 28 CFR 0.100(b), I hereby order that DEA 
Certificate of Registration, AD6122143, issued to Surinder Singh Dang, 
M.D., be, and it hereby is, revoked. I further order that any pending 
application of Surinder Singh

[[Page 51424]]

Dang, M.D., to renew or modify his registration be, and it hereby is, 
denied. This Order is effective September 19, 2011.

    Dated: August 5, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-21062 Filed 8-17-11; 8:45 am]
BILLING CODE 4410-09-P