Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Notices 51417 

on the State’s suspension. See 5 U.S.C. 554(b). I 

therefore do not rely on it. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a), as well as 

28 CFR 0.100(b), I order that DEA 

Certificate of Registration FI1125651, 

issued to Ideal Pharmacy Care, Inc., 

d/b/a/Esplanade Pharmacy, be, and it 

hereby is, revoked. 

I further order that any pending 

application to renew or modify this 

registration, be, and it hereby is, denied. 

Dated: August 5, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–21060 Filed 8–17–11; 8:45 am] 

BILLING CODE 4410–09–P 

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. 

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 KrishnaIyer, 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 

§ 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 bonafide 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 

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2The 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). 

3 Dr. Satinder Dang holds DEA Certificate of 

Registration, AD9234446; she is registered at the 

same address as Respondent. ALJ Ex. 3, at 2 

4R.K.’s first name is spelled as both Rani and 

Roni in various documents. 

5Pursuant 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. 

6Some of the documents may have been obtained 

pursuant to a search warrant. 

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). 

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. 

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. 

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.). 

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 

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7More 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. 

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. 

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. 

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8Later 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. 

9S.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. 

10Moore 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. 

During the search of the clinic, 

Respondent declined to be 

interviewed.8 Tr. 68. 

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. 

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 Xray. 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 

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11The practical effect of assigning a zero starting 

inventory is to reduce the size of any shortage. 12According 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. 

13Respondent does not contend that the GS 

double-counted any of the orders that were used in 

calculating this figure. 

14The 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. 

15The 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. 

16Neither Respondent nor his wife had reported 

to DEA any thefts, losses, or destructions of 

controlled substances. Tr. 65. 

17According 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. 

18The application also lists R.K. as the ‘‘accounts 

payable contact.’’ GX 9, at 4. 

19The 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. 

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 

Continued 

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

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. 

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. 

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. 

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 ShoppeJonesboro, 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 

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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. KrishnaIyer, 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. 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. 

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. 

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. 

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 

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22The 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. 

23Respondent 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. 

24The 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 § 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. 

25Because 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). 

26While 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)). 

27To 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. 

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

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). 

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

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. 

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 

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51424 Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Notices 

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 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 10–4] 

Satinder 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 Satinder K. Dang, M.D. 

(Respondent), of Fountain Valley, 

California. The Order proposed the 

revocation of Respondent’s DEA 

Certificate of Registration, AD9234446, 

as a practitioner, as well as the denial 

of any pending applications to renew or 

modify her 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 her husband Surinder 

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 her 

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. Continuing, 

the Order alleged that on March 16, 

2006, ‘‘DEA Special Agents seized 

50,000 dosage units more from this 

employee’s residence.’’ Id. 

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 her husband ‘‘had 

ordered’’; the Order thus also alleged 

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. at 2. Finally, the Order alleged 

that, when Respondent ‘‘made 

dispensing records,’’ she ‘‘frequently 

failed to indicate whether’’ she or her 

husband ‘‘actually dispensed the 

controlled substances as required by 21 

CFR 1304.03(b).’’ Id. 

By letter of October 2, 2009, 

Respondent, through her 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 2– 

3, 2010, in Santa Ana, California. 

At the hearing, the Government called 

two witnesses to testify and introduced 

documentary evidence. Respondent 

testified on her own behalf. Following 

the hearing, both parties submitted 

briefs containing their proposed 

findings of fact, conclusions of law and 

argument. 

On June 18, 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 her registration be 

revoked. ALJ at 29, 37–38. 

As to the first factor—the 

recommendation of the appropriate 

State licensing board or professional 

disciplinary authority—the ALJ found 

‘‘no evidence that the Medical Board of 

California has taken any action against 

the Respondent.’’ Id. at 27. 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.’’ Id. 

(citing Patrick W. Stodola, 74 FR 20727, 

20730 (2009); Jayam Krishna-Iyer, 74 FR 

459, 461 (2009)). The ALJ then 

concluded that ‘‘this factor does not fall 

in favor of revocation.’’ Id. 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. 

at 27–28. 

The ALJ then considered factors two 

and four—Respondent’s experience in 

dispensing controlled substances and 

her compliance with Federal, State, and 

local laws relating to controlled 

substances—together. Id. at 28–29. The 

ALJ found that the record was ‘‘replete 

with Respondent’s lack of oversight 

concerning the use of her controlled 

substances registration.’’ Id. at 28. 

Specifically, the ALJ found that: (1) 

Respondent’s clinic was unable to 

provide a biennial inventory (or an 

inventory of any kind); (2) ‘‘Respondent 

was unable to account for any of the 

controlled substances ordered using her 

DEA registration number’’; and (3) 

Respondent had admitted that ‘‘she did 

not maintain a key to the controlled 

substance cabinet’’ at her clinic. Id. at 

28–29. Further, the ALJ found that an 

‘‘audit revealed that the approximately 

3,870,700 dosage units of hydrocodone 

were unaccounted for.’’ Id. at 29. Based 

on these findings, the ALJ concluded 

that ‘‘Respondent failed to maintain 

adequate records.’’ Id. 

The ALJ rejected Respondent’s 

argument that ‘‘the DEA’s findings did 

not distinguish between the controlled 

substances prescribed or dispensed to 

Respondent’s patients versus the 

patients of’’ her husband. Id. The ALJ 

found that ‘‘the missing controlled 

substances were ordered under both 

DEA registration numbers in a 

haphazard manner and subsequently 

mixed into an incoherent me ́lange.’’ Id. 

The ALJ reasoned that if ‘‘Respondent 

maintained some oversight of her 

controlled substances registration, then 

DEA would most likely be able to 

‘distinguish between controlled 

substances prescribed or dispensed to 

Respondent’s patients versus’ those of 

her husband.’’ Id. Based on these 

findings, the ALJ concluded that 

‘‘Respondent’s circular reasoning does 

not absolve her [of] culpability.’’ Id. The 

ALJ thus 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—such other 

conduct as may threaten the public 

health and safety—the ALJ explained 

that ‘‘[e]ven if Respondent was not 

directly involved in the illegal diversion 

of controlled substances * * * she 

committed acts which constitute 

‘conduct which may threaten the public 

health and safety’ and which render her 

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 [her] registration to 

another person is strictly liable for the 

latter’s misuse of [her] registration,’’ the 

ALJ reasoned that ‘‘even if there had 

been no conspiracy amongst 

Respondent, her husband, and [R.K., the 

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