[Federal Register Volume 85, Number 36 (Monday, February 24, 2020)]
[Notices]
[Pages 10462-10464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03626]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Jaime C. David, M.D.; Decision and Order

    On September 26, 2017, the Acting Assistant Administrator, 
Diversion Control Division, Drug Enforcement Administration 
(hereinafter, Government), issued an Order to Show Cause (hereinafter, 
OSC) to Jaime C. David, M.D. (hereinafter, Registrant) of Apple Valley, 
California. OSC, at 1. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. BD9798818. Id. It alleged that 
Registrant is without ``authority to handle controlled substances in 
the State of California, the state in which [Registrant is] registered 
with the DEA.'' Id. (citing 21 U.S.C. 823(f) and 824(a)(3)).
    Specifically, the OSC alleged that the Medical Board of California 
(hereinafter, Board) issued an Order on August 24, 2016 revoking 
Registrant's medical license effective September 23, 2016, and that 
such Order remains in effect. Id. The OSC further alleged that because 
the Board revoked Registrant's medical license, Registrant lacks the 
authority to handle controlled substances in the State of California. 
Id.
    The OSC notified Registrant of the right to request a hearing on 
the allegations or to submit a written statement, while waiving the 
right to a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. at 2 (citing 21 
CFR 1301.43). The OSC also notified Registrant of the opportunity to 
submit a corrective action plan. Id. at 3 (citing 21 U.S.C. 
824(c)(2)(C)).

Adequacy of Service

    In a Declaration dated April 13, 2018, a Diversion Investigator 
(hereinafter, DI) assigned to the Riverside Resident Office of the Los 
Angeles Field Division in Riverside, California, detailed her attempts 
to serve the OSC to Registrant. Request for Final Agency Action 
(hereinafter, RFAA) Ex. 3. The DI stated that she attempted to serve 
Registrant in person at his last known residence, 41145 Ridgegate Lane, 
Palmdale, California 93551 (hereinafter, the residence). Id. at 2. The 
DI obtained this address from a report written by the

[[Page 10463]]

prior Diversion Investigator that reflected that the address was listed 
on the Medical Board of California's online profile of Registrant and 
was previously used by DEA to send correspondence to him. Id. At the 
residence, the DI stated that a man answered the door and told her that 
``he was [Registrant's] nephew and that [Registrant] had returned to 
the Philippines with no intention of returning to the United States.'' 
Id. The man declined to accept a copy of the OSC but said he would 
inform Registrant that the DEA had been to the residence. Id.
    On September 28, 2017, the DI attempted to send notification of the 
OSC to Registrant via email using the email address that the DEA had on 
file, but ``[t]he delivery of the email that [she] sent was returned 
`failed.' '' Id. On October 26, 2017, the DI sent copies of the OSC by 
first class mail and certified mail to (1) Registrant's residence, and 
(2) his DEA registered location of 18419 Highway 18, Suite 6, Apple 
Valley, California 92307. Id. The DI stated that neither of the letters 
sent by first class mail were returned to the DEA, but that the 
certified letters sent to the Registrant's residence and registered 
location were returned as ``refused'' and ``vacant,'' respectively. Id.
    The Government forwarded its RFAA, along with the evidentiary 
record, to this office on April 18, 2018. In its RFAA, the Government 
contends that it made all reasonable actions to serve Registrant--
attempting to serve him by email, in-person, and by mail--and that 
actual service on Registrant is not required. RFAA, at 3-4. The 
Government requests a final order revoking Registrant's DEA Certificate 
of Registration because Registrant ``lacks state authority to handle 
controlled substance in the State of California, the state where 
[Registrant] is registered.'' Id. at 1.
    Based on the DI's Declaration, the Government's written 
representations, and my review of the record, I find that the 
Government's attempts to serve Registrant were legally sufficient. Due 
process does not require actual notice. Jones v. Flowers, 547 U.S. 220, 
226 (2006). ``[I]t requires only that the Government's effort be 
reasonably calculated to apprise a party of the pendency of the 
action.'' Dusenbery v. United States, 534 U.S. 161, 170 (2002) 
(internal quotations omitted). Here, the Government mailed the OSC by 
first-class mail and certified mail to Registrant's address of record 
and last-known residence, emailed the OSC to the email address that 
Registrant had provided to the Government, and visited Registrant's 
last-known residence where an occupant of the residence who purported 
to be Registrant's nephew declined to accept the OSC and said that 
Registrant had left the United States. RFAA Ex. 3. ``[T]he Due Process 
Clause does not require . . . heroic efforts by the Government'' to 
find Registrant. Id. I find, therefore, that under the circumstances, 
the Government's efforts to notify Registrant of the OSC were 
reasonable and satisfied due process.
    I also find that more than thirty days have now passed since the 
Government accomplished service of the OSC. Further, based on the 
Government's written representations, I find that neither Registrant, 
nor anyone purporting to represent the Registrant, requested a hearing, 
submitted a written statement while waiving Registrant's right to a 
hearing, or submitted a corrective action plan. Accordingly, I find 
that Registrant has waived the right to a hearing and the right to 
submit a written statement and corrective action plan. 21 CFR 
1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this 
Decision and Order based on the record submitted by the Government, 
which constitutes the entire record before me. 21 CFR 1301.43(e).

Findings of Fact

Registrant's DEA Registration

    Registrant is the holder of DEA Certificate of Registration No. 
BD9798818 at the registered address of 18419 Highway 18, Suite 6, Apple 
Valley, California 92307. RFAA Ex. 1. Pursuant to this registration, 
Registrant was authorized to dispense controlled substances in 
schedules II through V as a practitioner. Id. Registrant's registration 
expired on June 30, 2018. Id.\1\
---------------------------------------------------------------------------

    \1\ The fact that a Registrant allows his registration to expire 
during the pendency of an OSC does not impact my jurisdiction or 
prerogative under the Controlled Substances Act (hereinafter, CSA) 
to adjudicate the OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 
68,474 (2019).
---------------------------------------------------------------------------

The Status of Registrant's State License

    On August 24, 2016, the Medical Board of California issued a 
Decision After Non-Adoption and Order (``Order''). RFAA Ex. 3, Attach. 
A. According to the Order, Registrant prescribed a controlled substance 
to himself, ``used dangerous drugs to an extent or in a manner 
dangerous or injurious to himself, to another person, or to the 
public,'' ``used dangerous drugs to an extent that his use impairs his 
ability to practice medicine safely,'' and ``engaged in unprofessional 
conduct.'' Id. at 15-16. The Order further stated that Registrant's 
``ability to practice medicine safely is impaired due to mental illness 
affecting his competence as a result of his heavy use of controlled 
substances and dangerous drugs.'' Id. at 16. The Order concluded that 
as a result of Registrant's ``multiple, serious violations and absence 
of rehabilitation, the public health, safety, and welfare [could not] 
be protected by any discipline short of revocation'' and revoked 
Registrant's license to practice medicine effective September 23, 2016. 
Id. at 17. The Medical Board of California's online records, of which I 
take official notice, document that Registrant's license is still 
revoked.\2\ Medical Board of California License Verification, https://www.mbc.ca.gov/Breeze/License_Verification.aspx (last visited Jan. 31, 
2020).
---------------------------------------------------------------------------

    \2\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute my finding by filing 
a properly supported motion for reconsideration within fifteen 
calendar days of the date of this Order. Any such motion shall be 
filed with the Office of the Administrator and a copy shall be 
served on the Government. In the event Registrant files a motion, 
the Government shall have fifteen calendar days to file a response. 
Any such motion and response may be filed and served by email 
([email protected]) or by mail to Office of the 
Administrator, Attn: ADDO, Drug Enforcement Administration, 8701 
Morrissette Drive, Springfield, VA 22152.
---------------------------------------------------------------------------

    Accordingly, I find that Registrant currently is not licensed to 
engage in the practice of medicine in California, the state in which 
Registrant is registered with the DEA.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the CSA 
``upon a finding that the registrant . . . has had his State license or 
registration suspended . . . [or] revoked . . . by competent State 
authority and is no longer authorized by State law to engage in the . . 
. dispensing of controlled substances.'' With respect to a 
practitioner, the DEA has also long held that the possession of 
authority to dispense controlled substances under the laws of the state 
in which a practitioner engages in professional practice is a 
fundamental condition for obtaining and maintaining a practitioner's 
registration. See, e.g., James L. Hooper, M.D., 76 FR 71,371 (2011), 
pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick

[[Page 10464]]

Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner'' to mean ``a physician 
. . . or other person licensed, registered, or otherwise permitted, by 
. . . the jurisdiction in which he practices . . . , to distribute, 
dispense, . . . [or] administer . . . a controlled substance in the 
course of professional practice.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the state in which he practices. See, e.g., James L. Hooper, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, 43 
FR at 27,617.
    According to California statute, ``[n]o person other than a 
physician . . . shall write or issue a prescription.'' Cal. Health & 
Safety Code Sec.  11150 (Westlaw 2019). Further, ``physician,'' as 
defined by California statute, is a person who is ``licensed to 
practice'' in California. Id. Sec.  11024.
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice medicine in California. As 
already discussed, a physician must be a licensed practitioner to 
dispense a controlled substance in California. Thus, because Registrant 
lacks authority to practice medicine in California and, therefore, is 
not authorized to handle controlled substances in California, 
Registrant is not eligible to maintain a DEA registration. Accordingly, 
I will order that Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
BD9798818 issued to Jaime C. David, M.D. This Order is effective March 
25, 2020.

    Dated: January 31, 2020.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2020-03626 Filed 2-21-20; 8:45 am]
BILLING CODE 4410-09-P