[Federal Register Volume 80, Number 218 (Thursday, November 12, 2015)]
[Notices]
[Pages 69979-69982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28727]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 15-21;


Christina B. Paylan, M.D.; Decision and Order

    On July 1, 2015, Administrative Law Judge Christopher B. McNeil 
issued the attached Recommended Decision. Therein, the ALJ found it 
undisputed that Respondent's medical license has been suspended by the 
Florida Department of Health, and that therefore, she ``is not 
authorized to handle controlled substances in the State of Florida.'' 
R.D. 6. Because Respondent is no longer a ``practitioner'' within the 
meaning of the Controlled Substances Act, the ALJ granted the 
Government's Motion for Summary Disposition and recommended that her 
registration be revoked \1\ and that any pending application to renew 
or modify her registration be denied. Id.
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    \1\ According to the registration records of this Agency, of 
which I take official notice, see 5 U.S.C. 556(e), Respondent's 
registration does not expire until March 31, 2016.
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    Respondent filed Exceptions to the Decision and the Government 
filed a Response to Respondent's Exceptions. Thereafter, the record was 
forwarded to me for final agency action.
    Having considered the record in its entirety, I have decided to 
adopt the ALJ's factual finding, his conclusions of law, and 
recommended order. A discussion of Respondent's Exceptions follows.
    Respondent's first exception is based on the ALJ's finding that she 
is ``no longer authorized by state law to handle controlled 
substances.'' Exceptions at 1. Noting that the language of section 
824(a)(3) authorizes the suspension or revocation of a registration 
where a registrant ``is no longer authorized by State law to engage in 
the manufacturing, distribution or dispensing of controlled 
substances,'' Respondent argues that the ALJ lumped together ``[t]he 
words `manufacturing, distribution or dispensing''' and that this 
``violates the strict requirement for strict statutory construction.'' 
Id. Apparently, because the ALJ used the word ``handle'' rather than 
``dispense'' to describe the authority Respondent no longer holds by 
virtue of the suspension of her medical license, Respondent believes 
that the Agency lacks authority to revoke her registration.
    It is true that the Controlled Substances Act does not use the word 
``handle'' in describing the activities that various categories of 
registrants are authorized to engage in pursuant to their 
registrations. Rather, the term is part of the Agency's vernacular.
    Notwithstanding the language used by the ALJ, the Agency possesses 
authority to revoke Respondent's registration because the record 
establishes that she lacks authority to dispense controlled substances 
in Florida, the State in which she is registered with DEA. 
Specifically, the evidence shows that on October 28, 2014, the Florida 
Department of Health ordered the emergency suspension of Respondent's 
license ``to practice as a medical doctor'' after she was convicted in 
state court of two felony offenses, including, inter alia, ``obtaining 
a controlled substance by fraud.'' In re Emergency Suspension of the 
License of Christina B. Paylan, M.D., 1-2 (Fla. Dept. of Health Oct. 
28, 2014) (No. 2014-12284). Respondent therefore lacks authority under 
Florida law to dispense controlled substances within the meaning of the 
CSA. See Fla. Stat. Sec.  458.305(3) (defining the ``practice of 
medicine'' as ``the diagnosis, treatment, operation, or prescription 
for any human disease, pain, injury, deformity, or other physical or 
mental condition''); id. Sec.  458.305(4) (defining ``physician'' as 
``a person who is licensed to practice medicine in this state''); Sec.  
456.065(2)(d)(1) (prohibiting the unlicensed practice of ``a health 
care profession without an active, valid . . . license to practice that 
professional'' which ``includes practicing on a suspended . . . 
license'').
    Respondent further argues that because she ``is not a dispensing 
practitioner'' as defined by Florida law, she is outside of the scope 
of section 824(a)(3). Exceptions at 5. Respondent

[[Page 69980]]

explains that under Florida law and regulation, a dispensing 
practitioner ``is one who acts as a pharmacy and sells medications . . 
. to patients'' and that she ``is not registered as a dispensing 
practitioner . . . because she does not sell medications to patients 
out of her office.'' Id.
    Be that as it may, the CSA defines ``[t]he term `dispense' [to] 
mean[] to deliver a controlled substance to an ultimate user . . . by, 
or pursuant to the lawful order of, a practitioner, including the 
prescribing and administering of a controlled substance.'' 21 U.S.C. 
802(10) (emphasis added). Because the term ``dispense'' is not limited 
to direct dispensing but includes prescribing and administering, 
section 824(a)(3) authorizes the revocation of her registration based 
on her lack of authority under Florida law to practice medicine.\2\
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    \2\ Respondent also disputes whether she ``is no longer 
authorized by State law to engage in the . . . dispensing of 
controlled substances.'' Exceptions at 2. Respondent argues that 
``[t]here is no language in the Emergency Suspension Order issued by 
the Florida Board of Medicine or any other evidence . . . that [she] 
is `no longer authorized by state law to handle controlled 
substances.' '' Id. She further argues that she still has her 
medical license. Id. at 2-3.
     While Respondent may still hold a medical license, it is 
undisputed that the Board of Medicine has suspended it. Accordingly, 
she is no longer authorized to practice medicine and prescribe 
controlled substances. While Respondent further asserts that the 
Board has yet to provide her with ``a full hearing,'' id. at 3, the 
ALJ properly rejected this contention. See R.D. at n.13 (citing 
cases holding that revocation is warranted even where a 
practitioner's state authority has been summarily suspended and the 
State has yet to provide a hearing).
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    Respondent also argues that revoking her registration would be 
arbitrary and capricious because the ALJ ignored relevant evidence. 
Exceptions at 4. According to Respondent, the relevant evidence is that 
in her criminal case (which was the basis of the State Board's action), 
she ``was not tried as a doctor, but rather as a layperson'' and that 
``[t]he only fraud'' proved by the State was that she ``did not receive 
permission from CM in order to write a prescription to order drugs for 
an upcoming surgical procedure.'' Id.; see also id. at 5-6 (arguing 
that state prosecutor committed ``prosecutorial misconduct'' in her 
criminal trial when he/she ``argued that a doctor is not a doctor'').
    The ALJ properly rejected this argument as it is a collateral 
attack on her state court conviction and the State Board's suspension 
order which cannot be litigated in a proceeding brought under section 
304 of the CSA. See Kamal Tiwari, 76 FR 71604, 71606 (2011) (citing 
cases); see also R.D. at 4 n.8 (citing cases). Rather, her challenges 
to either her conviction or the suspension order must be litigated in 
the forums provided by the State. Tiwari, 76 FR at 71606. Moreover, the 
only evidence that is relevant in determining whether Respondent's 
registration should be revoked is whether she ``is no longer authorized 
by State law to engage in the . . . dispensing of controlled 
substances.'' 21 U.S.C. 824(a)(3). Because it undisputed that 
Respondent is no longer authorized under Florida law to dispense 
controlled substances, she no longer meets the statutory definition of 
a practitioner. See id. Sec.  802(21) (``The term `practitioner' means 
a physician . . . or other person licensed, registered, or otherwise 
permitted, by the United States or the jurisdiction in which [s]he 
practices . . . to distribute, dispense, . . . [or] administer . . . a 
controlled substances in the course of professional practice . . . 
.''); id. Sec.  823(f) (``The Attorney General shall register 
practitioners . . . to dispense . . . controlled substances . . . . if 
the applicant is authorized to dispense . . . controlled substances 
under the laws of the State in which [s]he practices''). Accordingly, I 
adopt the ALJ's recommended order and will revoke Respondent's 
registration and deny any pending applications to renew or modify her 
registration. \3\
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    \3\ Respondent also argues that I should issue a writ of error 
coram nobis to correct the error committed by the state court when 
it allowed the prosecutor to present her to the jury ``as a 
layperson, [and] not as a doctor.'' Exceptions at 7. This, however, 
is just another variation of her collateral attack on the state 
court proceeding, and in any event, Congress has not granted such 
authority to DEA.
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Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) and 
823(f), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration BP7179496, issued to Christina Paylan, M.D., be, and it 
hereby is, revoked. I further order that any pending application of 
Christina Paylan, M.D., to renew or modify DEA Certificate of 
Registration BP7179496, be, and it hereby is, denied. This order is 
effective December 14, 2015.

    Dated: November 2, 2015.
Chuck Rosenberg,
Acting Administrator.

Brian Bayly, Esq., for the Government.
Christina M. Paylan, pro se, for the Respondent.

ORDER GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY DISPOSITION AND 
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED DECISION OF THE 
ADMINISTRATIVE LAW JUDGE

    Christopher B. McNeil, Administrative Law Judge. On April 29, 2015, 
the Deputy Assistant Administrator of the Drug Enforcement 
Administration issued an Order to Show Cause as to why the DEA should 
not revoke DEA Certificate of Registration (COR) Number BP7179496 
issued to Christina Paylan, M.D., the Respondent in this matter. The 
Order seeks to revoke Respondent's registration pursuant to 21 U.S.C. 
Sec. Sec.  824(a)(3) and 823(f)(4), and to deny any pending 
applications for renewal or modification of such registration, and deny 
any applications for any new DEA registrations pursuant to 21 U.S.C. 
Sec.  823(f). As grounds for revocation, the Deputy Assistant 
Administrator alleges that Respondent is without authority to handle 
controlled substances in Florida, the state in which Dr. Paylan is 
registered with the DEA. As further grounds for revocation, the Deputy 
Assistant Administrator alleges that Dr. Paylan has been convicted of 
felonies related to controlled substances and that her continued 
registration is inconsistent with the public interest.
    On May 8, 2015, the DEA's Office of Administrative Law Judges 
received a notice that Dr. Paylan was served with the Order to Show 
Cause on May 6, 2015.
    On May 28, 2015, the DEA's Office of Administrative Law Judges 
received Respondent's written request for a hearing, dated May 28, 
2015.
    Thereafter, on June 1, 2015, this Office issued an Order for 
Briefing on Allegations Concerning Respondent's Lack of State 
Authority. In the Order, I required the Government to submit evidence 
and arguments to support the allegation that Respondent lacks state 
authority to handle controlled substances and, if appropriate, file a 
motion for summary disposition no later than 2:00 p.m. Eastern Daylight 
Time (EDT) on June 15, 2015. Also in my June 1, 2015 Order, I allowed 
the Respondent to file a response to the Government's motion for 
summary disposition no later than 2:00 p.m. EDT on June 29, 2015.
    On June 3, 2015, the Government timely filed its Motion for Summary 
Disposition, along with its Brief in Support of the Order to Show Cause 
Allegation That Respondent Lacks State Authority to Handle Controlled 
Substances. In its filings, the

[[Page 69981]]

Government averred that on October 28, 2014, the State of Florida 
Department of Health issued an Order of Emergency Suspension of License 
(Suspension Order) of Dr. Paylan's medical license.\4\ Based on this 
event, the Government argues that under applicable DEA precedent 
Respondent's DEA COR should be revoked.
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    \4\ Gov't Mot. For Summary Disp. at 2 & Attachment 1 (State of 
Florida Department of Health Order of Emergency Suspension of 
License).
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    On June 29, 2015, the Respondent timely filed her response, 
entitled Affidavit of Christina Paylan, MD in Support of Her Response 
to the Government's Summary Disposition (Response). Dr. Paylan attached 
to her Response a 187-page brief (Brief) that included exhibits in 
support of her position. In her Brief, Dr. Paylan relies upon three 
legal arguments. First, Dr. Paylan argues that collateral estoppel/res 
judicata is applicable to this proceeding. Next, Dr. Paylan avers that 
she received ineffective assistance from counsel in her criminal trial 
which formed the basis of the State Medical Board's emergency order 
suspending Dr. Paylan's license to practice medicine in the State of 
Florida. Last, Dr. Paylan states that due to prosecutorial misconduct, 
it was not her who was convicted in her criminal trial.
    Notably, nowhere in her brief does Dr. Paylan claim that she has 
state authority to handle controlled substances--the threshold issue in 
this matter. To the contrary, Dr. Paylan's arguments center on the 
alleged factual background of her criminal conviction, and fail to 
contradict the basis upon which the Government seeks summary 
disposition in this proceeding. Respondent has therefore failed to 
rebut the substantial issue raised by the Government.
    The Government asserts that Respondent's DEA Certificate of 
Registration must be revoked because Respondent does not have a medical 
license issued by the state in which she practices.\5\ This assertion 
is significant because DEA precedent holds that a practitioner's DEA 
Certificate of Registration for controlled substances must be summarily 
revoked if the applicant is not authorized to handle controlled 
substances in the state in which she maintains her DEA registration.\6\ 
Pursuant to 21 U.S.C. Sec.  823(f), only a ``practitioner'' may receive 
a DEA registration. Under 21 U.S.C. Sec.  802(21), a ``practitioner'' 
must be ``licensed, registered, or otherwise permitted, by the United 
States or the jurisdiction in which he practices or does research, to 
distribute [or] dispense . . . controlled substance[s.]'' Given this 
statutory language, the DEA Administrator does not have the authority 
under the Controlled Substances Act to maintain a practitioner's 
registration if that practitioner is not authorized to dispense 
controlled substances.\7\
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    \5\ Id.
    \6\ See 21 U.S.C. 802(21), 823(f), 824(a)(3); see also House of 
Medicine, 79 FR 4959, 4961 (2014); Deanwood Pharmacy, 68 FR 41662 
(2003); Wayne D. Longmore, M.D., 77 FR 67,669 (2012); Alan H. 
Olefsky, M.D., 72 FR 42,127 (2007); Layfe Robert Anthony, M.D., 67 
FR 15,811 (2002); George Thomas, PA-C, 64 FR 15811 (1999); Shahid 
Musud Siddiqui, M.D., 61 Fed. Reg 14818-02 (1996); Michael D. 
Lawton, M.D., 59 FR 17792 (1994); Abraham A. Chaplan, M.D., 57 FR 
55280 (1992); See also Bio Diagnosis Int'l, 78 FR 39327, 39331 
(2013) (distinguishing distributor applicants from other 
``practitioners'' in the context of summary disposition analysis).
    \7\ See Abraham A. Chaplan, M.D., 57 FR 55,280, 55,280 (1992), 
and cases cited therein. In Chaplan, DEA Administrator Robert C. 
Bonner adopts the ALJ's opinion that ``the DEA lacks statutory power 
to register a practitioner unless the practitioner holds state 
authority to handle controlled substances.'' Id.
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    In her Response and Brief, Dr. Paylan counters the Government's 
assertions arguing that collateral estoppel/res judicata should apply 
to this proceeding, and requests that I ``fashion an order that is 
something other than revocation, and more like a temporary suspension 
and/or abeyance until these state issues of res judicata are fully 
addressed before the ALJ in Tallahassee, and/or until a decision of the 
State Appellate Court is rendered reversing the conviction.'' \8\ Dr. 
Paylan alleges that the Board's Order of Emergency Suspension 
determination was based on Dr. Paylan's conviction in a State criminal 
trial for the same conduct she was previously exonerated of before the 
Board.\9\ Dr. Paylan thus avers that res judicata should have applied 
in the Board's emergency suspension orders. Dr. Paylan also argues that 
``if the local DEA agent found Dr. Paylan to have engaged in no 
wrongdoing at the time of the transaction, then Dr. Paylan, is at a 
minimum, entitled to a collateral estoppel argument now.'' \10\
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    \8\ Resp. Br. at 12.
    \9\ Resp. Br. at 7-8.
    \10\ Resp. Br. at 10.
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    This Agency has held ``that a registrant cannot collaterally attack 
the results of a state criminal or administrative proceeding in a 
proceeding under section 304 of the CSA.'' \11\ Thus, in this 
proceeding, Dr. Paylan is precluded from attacking the results of both 
the Circuit Court of the Thirteenth Judicial Circuit in and for 
Hillsborough County, Florida, and the Florida Department of Health 
Order of Emergency Suspension. Similarly, a DEA agent's purported 
inaction in pursuing Dr. Paylan for an alleged crime does not carry any 
preclusive weight because it is not an issue that has been litigated. 
Therefore, collateral estoppel is inapplicable to Dr. Paylan's 
aforementioned claim. Thus, Dr. Paylan's collateral estoppel argument 
fails.
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    \11\ Sunil Bhasin, M.D., 72 FR 5,082, 5,083 (2007); see also 
Shahid Musud Siddiqui, 61 FR 14818, 14,818-19 (1996); and Robert A. 
Leslie, 60 FR 14,004, 14,005 (1995).
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    As for her res judicata claim, Dr. Paylan argues that the DEA had 
knowledge of, but did not take action on, the event that Dr. Paylan was 
convicted of in State court.\12\ Dr. Paylan represents that the Florida 
State Administrative Law Judge assigned to the DOH v. Paylan Case 
No:15-0429 issued an initial order recognizing the presence of res 
judicata as an issue applicable to the administrative proceeding.\13\ 
But in this proceeding, Dr. Paylan herself notes ``the absence of a 
formal proceeding by the DEA such as convening of this forum may 
preclude the argument of res judicata.'' \14\
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    \12\ Resp. Br. at 10.
    \13\ Resp. Br. at 8.
    \14\ Resp. Br. at 9.
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    In this instance, the DEA is not relitigating a claim that was 
previously heard, and it is not bringing a claim that could have been 
litigated in a prior DEA proceeding in accordance with the doctrine of 
res judicata.\15\ Rather, the event that served as the catalyst for the 
Government's Order to Show Cause in this proceeding was the State of 
Florida Department of Health Order of Emergency Suspension of License. 
But the present proceeding has been convened for the purpose of 
determining whether the Administrator should revoke the Respondent's 
DEA Certificate of Registration pursuant to 21 U.S.C. 824(a)(3) and 
823(f)(4), and whether the Administrator should deny any pending 
applications for renewal or modification of such registration, and any 
applications for new DEA registrations pursuant to 21 U.S.C. 823(f). 
Absent the existence in this present proceeding of a claim that has 
been previously litigated, or a claim that could have been litigated in 
a prior proceeding, the doctrine of res judicata is inapplicable here.
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    \15\ OTSC at 1.
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    Dr. Paylan's second and third arguments, that she experienced 
ineffective assistance of counsel in her state criminal proceeding, and 
that her conviction was purportedly a person who was presented to the 
jury as a non-doctor, i.e. not Dr. Paylan, fail because these arguments 
do not relate to the issue of whether Dr. Paylan currently

[[Page 69982]]

has authority to handle controlled substances in the State of Florida. 
For this reason, Dr. Paylan's second and third claims fall outside the 
scope of this proceeding as well.
    Last, while I am mindful of Dr. Paylan's request for a temporary 
suspension or abeyance of these proceedings, the DEA has consistently 
summarily revoked DEA certificates of registration based on state 
medical board temporary suspension orders, and it has previously denied 
staying its proceedings pending the outcome of a Respondent's appeal of 
his state licensing authority's suspension of his license.\16\
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    \16\ See Steven I. Topel, M.D., 58 FR 37,509(1993)(revoking 
Respondent's COR based on a temporary suspension order issued by the 
Kentucky Board of Medical Licensure); see also Carmencita E. 
Fallora, M.D., 60 FR 47,967, 47,968 (1995) (rejecting Respondent's 
argument that DEA did not have legal authority under 21 U.S.C. 
824(a)(3) to summarily revoke her DEA registration based on a state 
medical board's temporary suspension order; See also Gary Alfred 
Shearer, M.D., 78 FR 19,009, 19,012 (2013) (holding that 
``[r]evocation of the DEA certificate is warranted even where a 
practitioner's state authority has been summarily suspended and the 
state has yet to provide the practitioner with a hearing to 
challenge the state action at which he may ultimately prevail.'' 
Id.)
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    As detailed above, only a ``practitioner'' may receive a DEA 
registration.\17\ Finding that Dr. Paylan is currently without license 
to practice as a medical doctor, and thus is not authorized to handle 
controlled substances in the State of Florida, I cannot and will not 
recommend that these proceedings be held in abeyance, or that 
Respondent's registration be suspended. I will instead recommend her 
registration be revoked.
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    \17\ In James L. Hooper, 76 FR 71, 371, 71,372 (2011), the 
Administrator held that ``the controlling question is not whether a 
practitioner's license to practice medicine in the state is 
suspended or revoked; rather, it is whether the Respondent is 
currently authorized to handle controlled substances in the state'' 
and ``even where a practitioner's state license has been suspended 
for a period of certain duration, the practitioner no longer meets 
the statutory definition of a practitioner.'' Id. (citing Anne Lazar 
Thorn, M.D, 62 FR 12,847, 12,848 (1997).
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Order Granting the Government's Motion for Summary Disposition and 
Recommendation

    I find there is no genuine dispute regarding whether Respondent is 
a ``practitioner'' as that term is defined by 21 U.S.C. 802(21), and 
that based on the record the Government has established, by at least a 
preponderance of the evidence, that Respondent is not a practitioner 
and is not authorized to dispense controlled substances in the state in 
which she seeks to practice with a DEA Certificate of Registration. I 
further find that the Respondent has failed to dispute this assertion. 
Accordingly, I GRANT the Government's Motion for Summary Disposition.
    Upon this finding, I ORDER that this case be forwarded to the 
Administrator for final disposition and I recommended that Respondent's 
DEA Certificate of Registration should be REVOKED and any pending 
application for the renewal or modification of the same should be 
DENIED.

Dated: July 1, 2015

s/Christopher B. McNeil

Administrative Law Judge

[FR Doc. 2015-28727 Filed 11-10-15; 8:45 am]
 BILLING CODE 4410-09-P