Petition for Writ of Certiorari — Bharanidharan Padmanabhan, Petitioner v. Drug Enforcement Administration

Supreme Court briefOct 25, 2019

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BHARANIDHARAN PADMANABHAN M.D. Ph.D.

(Dr. Bharani)

Petitioner,

DRUG ENFORCEMENT ADMINISTRATION

Respondents.

On Petition for Writ of Certiorari

To The United States Court Of Appeals

For The District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

BHARANI PADMANABHAN MD PhD

pro se

30 Gardner Road #6A,

Brookline MA 02445

617 566 6047

scleroplex@gmail.com

QUESTIONS PRESENTED

The DEA relied exclusively on an internal agency precedent to declare that

because private market actors on the Massachusetts medical board suspended the

Petitioner’s medical license, he lost “state authority to dispense” controlled

substances and so his Drug Enforcement Administration registration must be

revoked. Petitioner responded that DEA was required to comply with § 824 (a)(3) of

the federal Controlled Substance Act (CSA), which requires DEA to comply with

State law (Massachusetts General Laws ch. 94C § 7(f)) to determine whether the

physician had indeed lost his “state authority to dispense.”

State law divorces “state authority to dispense” from medical licensure and

requires a specific statutory action by the Public Health Commissioner before a

physician loses his “state authority to dispense.” The DEA agreed that the

Commissioner has not taken any action, then countered that a new state regulation

(105 CMR 700.120) “automatically voided” Petitioner’s “state authority to dispense,”

that “the automatic effect of the regulation is identical to that of an individualized

proceeding” and State law is “irrelevant” prior to a taking of his liberty / property

interest. The court of appeals agreed that an “automatic” taking of a liberty /

property interest is in “harmony” with State law and the Fifth Amendment.

The questions presented are:

1. Are federal agencies exempt from complying with the Tenth

Amendment such that they can deem State law “irrelevant” and

violate the individual rights of Massachusetts persons?

2. Are “automatic” deprivations of liberty / property interests

slipped in by a state agency’s regulation truly in “harmony”

with the plain text of State law, the Fifth Amendment’s Due

Process clause, and the ban against bills of attainder, and can

DEA rely on one to defy the plain text of the federal Controlled

Substance Act which requires compliance with State law itself?

TABLE OF CONTENTS

QUESTIONS PRESENTED......................

TABLE OF AUTHORITIES.......................

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW.

JURISDICTION........................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE..

REASONS FOR GRANTING THE PETITION

Petitioner Was Deprived Of A Property /

Liberty Interest Through Violation Of

The Tenth Amendment............................

The Decision Below Cannot Be Reconciled

With The Constitution’s Structural Protections

Or With This Court’s Precedent - “Automatic

Voidness” Is Repugnant To The Constitution

And Has Not Been Consented To By The

People Of Massachusetts..................................... 11

This Case Is The Perfect Vehicle To Interpret

21 U.S.C § 824 (a)(3) In Terms Of The

Tenth Amendment - The Decision Below

Misapplies Basic Principles Of

Statutory Construction.....................................

DEA does not have authority

to enforce a state regulation.................

The Questions Presented Raise Constitutional

Issues Of Paramount Importance...................... 29

CONCLUSION

APPENDIX

Constitution, Federal Law, State Law.

D.C. Circuit Opinion............................

Final Order in Federal Register.....................

Mass. Regulation 105 CMR § 700.120, draft

Reports regarding Dr. Lee Macht’s registration... 10

Mass. DPH letter states registration in full

force and effect until suspended/revoked... 11

TABLE OF AUTHORITIES

CASES

Adams v. City of Boston, 461 Mass. 602 (2012)......................................

Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013)....

Bond v. United States, 564 U.S. 211 {Bondi, 2011)..............................

3,11,25

Bond v. United States, 572 U.S. 844 {Bond II, 2014).............................

3,13,29

Central United Life Ins. Co. v. Burwell, 827 F.3d 70 (D.C. Cir. 2016)

City Bank & Trust Co. v. Board of Bank Incorporation, 346 Mass. 29 (1963)... 6

Cleavinger v. Saxner, 474 U.S. 193 (1985).....................................

Cohens v. Virginia, 19 U.S. 264 (1821)...........................................

Commonwealth v. Robert Chatfield-Taylor, 399 Mass. 1 (1987)

19,23

Flyers Rights Educ. Fund v. FAA, 864 F.3d 738 (DC Cir. 2017).

Gonzales v. Oregon, 546 U.S. 243 (2006).........................................

17,26,27

Hartford Underwriters Insurance v. Union Planters Bank, 530 U.S. 1 (2000)... 18

Hohn v. United States, 524 U.S. 236 (1998).....................................................

Honeycutt v. United States, 581 U.S.__ (2017)...............................................

15,20

Hurtado v. California, 110 US 516 (1884)........................................................

Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983)

25.29

Knick v. Township of Scott, Pennsylvania, 588 U.S.

28.30

(2019)

Larkin v. Grendel’s Den, 459 U. S. 116 (1982)..........

14,16

Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986)

Maslenjak v. United States, 582 U.S.___(2017)....................

Mathews v. Eldridge, 424 U.S. 319 (1976)..............................

Menominee Indian Tribe v. DEA, 15-cv-01378,

2016 WL 2997499 (ED Wise. 2016).........

(2014)........

McCullen u. Coakley, 573 U. S.

Murphy v. National Collegiate Athletic Association, 584 U.S.

20,25

(2018)

North Carolina State Board of Dental Examiners u. Federal

(2015)

Trade Commission, 574 U.S.

1,6

O’Connor v. Oakhurst Dairy, 851 F. 3d 69 (1st Cir. 2017)......

(2018)...................................

15,20

Ralls Corp. v. CFIUS, 758 F.3d 296 (2014)................................

10,26

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).................

Sandoz Inc. v. Amgen Inc., 582 US__(2017)..............................

Standard Oil Co. of N. J. v. United States, 221 U.S. 1 (1911)

Smith u. Berryhill, 587 U.S.__(2019).........................................

20,24,26

United States v. Gonzales, 520 U.S. 1 (1997).............................

.. 20,23

Zuniga u. Barr, No. 16-72982 (9th Cir. 2019)............................

Pereira v. Sessions, 585 U.S.

STATUTES

21 U.S.C. ch. 13 § 824 (a)(3)

M.G.L. ch. 94C § 7(f)...........

.......................... 4,17,18,19,23,24

1,4,5,8,10,14,15,17,18,19,21,27

CONSTITUTION

United States

5th Amendment..

10th Amendment

Bill of Attainder...

passim

CORPORATE DISCLOSURE STATEMENT

Petitioner Bharanidharan Padmanabhan MD PhD is an individual.

PETITION FOR WRIT OF CERTIORARI

Every State has an entity that issues medical licenses to physicians. In

Massachusetts this body is comprised of private market actors, is not under active

State supervision and is not an arm of the State per North Carolina State Board of

Dental Eocaminers v. Federal Trade Commission, 574 U.S.

(2015)

This case involves a second license issued by the Commonwealth of

Massachusetts (State) to a doctor that allows him to write medical prescriptions.

This license, the Massachusetts Controlled Substance Registration certificate

(MCSR or registration), is issued by the State’s Public Health Commissioner

pursuant to State law, MGL ch. 94C § 7(f), and grants a physician “authority to

dispense controlled substances.” Without this second license from the State, a

doctor cannot be employed as he cannot write any prescriptions, even if he carries

an active medical license from the nonsovereign medical board, because in

Massachusetts all medicines are controlled substances, including aspirin. Petitioner

was granted this authority. This is the statutory framework in Massachusetts:

| Massachusetts Legislature

Nonsovereign Private

Market Actors

Delegated Authority

Public Health

Commissioner

Medical License

MCSR

State Authority to Dispense

Massachusetts Physician

Most physicians are further required to obtain from the Drug Enforcement

Administration a registration that allows them to dispense (write prescriptions for)

medicines that have been listed as controlled substances by the DEA using its

authority under the federal Controlled Substance Act. So, a doctor needs three

separate registrations to earn a living: a medical license, a State controlled

substance registration, and a DEA registration.

Massachusetts law dictates that only the State Public Health Commissioner

may suspend or revoke the registration that grants a physician “State authority to

dispense controlled substances.” After four private market actors on the medical

board suspended the Petitioner’s medical license, the DEA moved to summarily

revoke the Petitioner’s DEA registration, based exclusively on internal agency

precedent, which holds that suspension of a medical license per se denotes “loss of

State authority to dispense.” Petitioner documented that pursuant to State law and

the federal CSA, summary disposition in the absence of action by the State

Commissioner violated both the Tenth Amendment and his due process rights. At

this point, for the first time in 48 years, DEA declared that a new state regulation it

discovered after filing for summary disposition, made State law “irrelevant,” and

that even in the absence of the mandated action by the Commissioner, the

Petitioner’s state registration had become “automatically void” because of the

suspension of his medical license by the medical board. The DEA Administrator

revoked the Petitioner’s DEA registration. The DC Circuit declined to analyze the

agency’s claims, cf. Flyers Rights Educ. Fund v. FAA, 864 F.3d 738 (DC Cir. 2017),

and endorsed “automatic voidness,” acquired police power, and deprivation of a

protected property / liberty interest by a federal agency in defiance of an explicit

State law that mandates what process is due prior to the taking and who alone

must do the taking, which violated the Tenth Amendment and the individual rights

of this Massachusetts physician. The DC Circuit endorsed this:

''l Massachusetts Legislature

Nonsovereign Private

Market Actors

Delegated Authority

Public Health

Commissioner

Medical License

.o'

MCSR

^S,

State Authority to Dispense

Massachusetts Physician

The DC Circuit’s opinion defies this Court’s rulings in Bond I&II and so

totally defeats the statutory purpose as to warrant certiorari. Bond v. United

States, 564 U.S. 211 {Bond I, 2011), Bond v. United States, 572 U.S. 844 {Bond II,

2014) Allowing the DC Circuit’s opinion to stand harms the United States in terms

of who controls our institutions, encourages lawlessness by both federal agencies

and private market actors, violates the very concept of states’ rights, guts a

founding principle of the United States, and rents the fabric of democracy given

that the lower court endorsed contempt for the voters of Massachusetts. If one can

endorse contempt for one law reserved to the States, one can easily do the same for

any other law reserved to the States. One would be hard-pressed to envisage a

worse outcome for jurisprudence that affects every petitioner who seeks review of

federal agency decisions, as the DC Circuit is the go-to court for that review.

Certiorari by the Court is most essential to correct this injustice and clarify that all

courts, federal agencies, and regulations, must comply with the Constitution

regarding individual rights and federalism. Petitioner respectfully seeks a writ of

certiorari to review this decision from the U.S. Court of Appeals for the DC Circuit.

OPINION

BELOW

The lower court’s decision is reproduced in its entirety in Appx. 2-4. The DEA

Administrator’s Final Order, published in the Federal register, is reproduced in its

entirety in Appx. 5-8.

JURISDICTION

The DC Circuit Appeals Court issued its opinion on March 28, 2019 and on

May 29, 2019 denied a petition for re-hearing en banc. The Chief Justice extended

the time to file a petition to October 26, 2019. This Court has jurisdiction under 28

U.S.C. § 1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Tenth Amendment is reproduced in Appx. 1. The relevant portion of

§ 824 of the CSA is reproduced in Appx. 1 and also within this petition in the

appropriate sections. The relevant portion of MGL ch 94C § 7(f) is reproduced in

Appx. 1 and also within this petition in the appropriate sections.

STATEMENT OF THE CASE

This case involves a license issued by the Commonwealth of Massachusetts

to a doctor that allows him to write medical prescriptions. This license, named the

Massachusetts Controlled Substance Registration Certificate (“MCSR”, or

“registration”), is issued pursuant to the plain text of a state law, Massachusetts

General Laws ch. 94C § 7(f), which also mandates the action required prior to a

taking of this license (“registration”) by the Public Health Commissioner:

MGL ch. 94C § 7 - Registration of persons who manufacture, distribute,

dispense or possess controlled substances:

“(f) Notwithstanding any other provision of this section, the commissioner

shall, upon receipt of the fee as hereinbefore provided, automatically issue to

any physician, dentist, podiatrist or veterinarian who is duly authorized to

practice his profession in the commonwealth a registration to dispense, other

than for research pursuant to section eight, unless the registration of such

physician, dentist, podiatrist, or veterinarian has been suspended or revoked

pursuant to the provisions of sections thirteen or fourteen or unless said

registration is denied for cause by the commissioner pursuant to the

provisions of chapter thirty A. Such registration shall continue in full force

and effect unless it is suspended or revoked, or unless it is recalled and a new

registration issued in accordance with the rules and regulations of the

commissioner.”

The State Legislature explicitly recognized that this license, once issued,

grants the doctor a protected property / liberty interest, becomes his means of

earning a living (no MCS Registration = no writing prescriptions = no job), and thus

respected the doctor’s Fifth Amendment due process rights. Chapter 30A defines

due process procedures. The Court has held that shall means shall. Arizona v.

Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013), Sandoz Inc. v. Amgen Inc.,

582 US__(2017) The Massachusetts Supreme Court has so ruled as well:

"The distinction between 'may' and 'shall' is not lightly to be held to have

been overlooked in legislation."

City Bank & Trust Co. v. Board of Bank Incorporation, 346 Mass. 29, 31

(1963), cited in Adams v. City of Boston, 461 Mass. 602 (2012)

Massachusetts law divorces “State

"^Massachusetts Legislature

authority to dispense” from a medical

Nonsovereign Private

Market Actors

Delegated Authority

license and places it under a State office

Public Health

Commissioner

separate from a nonsovereign licensing

Medical License

MCSR

board controlled by private market State Authority

to Dispense

actors. In 1980, a Dr. Lee Macht’s “State

Massachusetts Physician

authority to dispense” was suspended for one year by the Public Health

Commissioner, after a hearing in Superior Court, while his medical license

remained fully active. Appx. 10 The Legislature declared the State’s Public Health

Commissioner is the sole State authority who may take the actions mandated by

State law regarding the taking of a doctor’s “State authority to dispense.” The

Legislature did not delegate this authority to private market actors on a licensing

board. The Court has declared that licensing boards comprised of private market

actors that are not under “active State supervision” are not arms of the State. North

Carolina State Board of Dental Examiners u. Federal Trade Commission, 574 U.S.

(2015). The Massachusetts Governor has declared that the medical board is not

under “active State supervision.” It is not an arm of the State.

See http ://www.mass.gov/governor/legislationexecorder/legislation/state-oversightof-professional-licensing-boards.html

All we have in this case is a suspension of the Petitioner’s medical license by

four (total seven, three recused) private market actors on a nonsovereign licensing

board that is not an arm of the State. The State’s Public Health Commissioner has

not performed the statutorily-specified actions to revoke the Petitioner’s state

controlled substance registration and thus this Petitioner’s “State authority to

dispense” continues, by law, in full force and effect. Shall means shall. See Appx. 11

The DEA issued a show cause notice based exclusively on agency precedent,

which holds that suspension of a medical license by itself denotes “loss of State

authority to dispense.” DEA did not rely on any Massachusetts law or regulation to

demand that Petitioner’s DEA registration be revoked via summary disposition.

Petitioner responded that as a matter of Massachusetts law his “State authority to

dispense” continued in full force and effect, and that, per both the Fifth & Tenth

Amendments as well as the CSA, DEA was mandated, obligated, to comply with

Massachusetts law. DEA’s own Administrative Law Judge (“ALJ”) ordered DEA to

prove that Petitioner had indeed lost “State authority to dispense.” At that point,

uniquely, and for the first time in the 48 years that DEA has been in existence,

DEA scrambled to find authority and finally cited a 2014 state regulation (105 Code

of Massachusetts Regulations 700.120, a new regulation that even the State has

never relied on (see pg. 12 below, Appx. 9 and Appx. 11)) to claim that Petitioner’s

state registration became automatically void the minute the private market actors

on the licensing board suspended his medical license, and that State law is

“irrelevant.”

The DEA Administrator promptly declared in the Federal Register:

The Government filed its response in further support of its request for

summary disposition on January 5, 2018. The Government argued that “the

formal status of Respondent’s Massachusetts CSR Certificate is irrelevant

to these proceedings, as any Massachusetts CSR Certificate which

Respondent possessed became void as a matter of law the moment that

Respondent’s medical license was suspended” pursuant to 105 Code of

Massachusetts Regulations § 700.120 and Massachusetts General Laws Ch.

94C §§ 7(f), 9(a). Gov’t Resp. Mot. at 4. On January 26, 2018, the Government

filed a copy of Respondent’s Massachusetts CSR Certificate. Gov’t Mot for

Leave, at. . .[5]. The Government does not “dispute Respondent’s assertion

that he is in [physical] possession of a Massachusetts CSR Certificate and

that the Massachusetts Department of Public Health has not yet taken

action to revoke his certificate.”.. . [Gov’t Resp. Mot. at 5.] Rather, the

Government argues that “it is irrelevant whether formal action has been

taken to revoke Respondent’s Massachusetts CSR Certificate as it is already

void . . .[for] the pendency of Respondent’s [medical license] suspension.” Id.

at 6. Thus, while the Respondent does “possess a Massachusetts CSR

Certificate, [ ] he does not possess authority to handle controlled substances.”

At this juncture, no dispute exists over the fact that the Respondent

currently lacks state authority to handle controlled substances in the

Commonwealth of Massachusetts because the Medical Board suspended his

medical license, thus voiding his Massachusetts CSR Certificate. Because the

Respondent lacks state authority at the present time, Agency precedent

dictates that he is not entitled to maintain his DEA registration.

— DEA Final Order. 83 FR 155. Doc. 2018-17141, August 9. 2018 emphasis added

DEA asserted as irrelevant everything that the elected Legislature enacted

as MGL ch. 94C § 7(f), asserted that private market actors on a licensing board can

bypass the mandatory statutory action by the designated State Officer, and that an

obscure, untested, recently discovered 2014 regulation that DEA has never cited

before, trumps both State law and the Fifth Amendment. The Court must notice the

absolute certainty in DEA’s assertion that ‘no dispute exists over the fact that the

Respondent currently lacks state authority to handle controlled substances in the

Commonwealth of Massachusetts because the Medical Board suspended his medical

license, thus voiding his Massachusetts CSR Certificate.’ The DC Circuit declined to

perform an independent examination of the statutory text and endorsed this view:

“Registration was voided by operation of 105 Code Mass. Regs. § 700.120,

which states that such registration “is void if the registrant’s underlying

professional licensure on which the registration is based is suspended or

revoked.

Here is the diagram of what the DC Circuit endorsed:

| Massachusetts Legislature

Nonsovereign Private

Market Actors

Delegated Authority

Public Health

Commissioner

<P.

Medical License

MCSR

State Authority to Dispense

Massachusetts Physician

REASONS FOR GRANTING THE PETITION

Petitioner Was Deprived Of A Property / Liberty Interest

Through Violation Of The Tenth Amendment, Which Caused A

Concrete, Particularized, Redressable Injury

Like any other license that is necessary for one to lawfully earn a living, the

state registration, once issued, becomes a property / liberty interest that comes

under the protections guaranteed by the Fifth Amendment and may not be taken

away without due process of law. Protection of property / liberty interests from

unlawful deprivation is so fundamental to our Constitution that the DC Circuit

itself declared in Ralls that even a claim from the U.S. President of a national

security concern was insufficient to overcome due process protections. Ralls Corp. v.

CFIUS, 758 F.3d 296 (2014) citing Am. Mfrs. Mut. Ins. Co. u. Sullivan, 526 U.S. 40

(1999), Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998), Paul v. Davis, 424

U.S. 693 (1976), Mathews v. Eldridge, 424 U.S. 319 (1976), Lepre v. Dep’t of Labor,

275 F.3d 59 (D.C. Cir. 2001). Petitioner here was due equal protection, on par with a

Chinese-owned company deemed a national security threat, but did not receive it.

State law MGL ch. 94C § 7(f) recognizes the constitutional importance of

Fifth Amendment protections and provides an explicit process to be followed before

this registration may be taken away by the State. “Such registration shall continue

in full force and effect unless it is suspended or revoked, or unless it is recalled and

a new registration issued in accordance with the rules and regulations of the

commissioner.” Only the Public Health Commissioner may suspend or revoke this

registration and the Department of Public Health maintains a Medical Review

Group for the specific purpose of an individualized proceeding prior to suspension or

revocation. See pg. 12 below. In this case here the Commissioner did not suspend or

revoke the Petitioner’s license. The Court has repeatedly held that shall means

shall. By defying the plain text of MGL ch. 94C § 7(f), DEA violated this Petitioner’s

individual rights under the Fifth and Tenth Amendments. In Bond I this Court

ruled that federalism “protects the liberty of all persons within a State” and allows

all persons to object when the federal government upsets the constitutional balance

between the National Government and the States and causes them injury that is

“concrete, particular and redressable.” Bond v. United States, 564 U.S. 211 {Bond I,

2011) Petitioner has standing and objects. The summary revocation of Petitioner’s

DEA registration in conscious violation of the Tenth Amendment, State law, and the

Fifth Amendment, is an injury that is concrete, particular and redressable.

All physicians have to credential with numerous entities every two (2) years.

One of the mandatory questions on credentialing forms is whether a physician’s

DEA certificate was surrendered or revoked. This is mandatorily reportable for the

rest of a physician’s professional life whenever he renews or applies for a medical

license or privileges at medical facilities or acceptance by an insurance plan to see

their patients. At any point, answering Yes to a question about revocation of a DEA

registration can, and is, used to deny physicians licenses or privileges, regardless of

why. Revocation of a DEA certificate of registration is associated with a massive

stigma and reasonable persons immediately assume that the physician had violated

federal drug laws by either distributing drugs outside of a legitimate medical

purpose for money or by being a drug addict himself. This fate must not be inflicted

on physicians automatically, without due process, as has been done to this

Petitioner.

The Court has also ruled that a constitutional violation is complete at the

time of deprivation. Knick v. Township of Scott, Pennsylvania, 588 U.S.

(2019)

The Petitioner awaits a concrete remedy from the Court, namely an order to DEA to

return his DEA registration (BP7993290) back to him.

The Decision Below Cannot Be Reconciled With The

Constitution’s Structural Protections Or With This Court’s

Precedent - “Automatic Voidness” Is Repugnant To The

Constitution And Has Not Been Consented To By The People

Of Massachusetts

The lower court endorsed the DEA’s assertion:

“Dr. Padmanabhan’s only acknowledgment of the regulation is the

conclusory assertion that a regulation may not “override the plain text of a

state statute.” Pet. Br. 17. As the Acting Administrator pointed out, however,

“the statute and the regulation are not in conflict.” 83 Fed. Reg. 39,787 n.6

(quotation marks omitted). Massachusetts law permits the Public Health

Commissioner to promulgate regulations governing controlled substance

regulations, and the regulation thus promulgated removes Dr.

Padmanabhan’s authorization to handle controlled substances in

Massachusetts. See id. Therefore, under state law, the automatic

effect of the regulation is identical to that of an individualized

proceeding.”

- Resp. brief, pg. 14. DC Circuit, [emphasis added]

The people of the state of

1 Massachusetts Legislature

Massachusetts, via their elected

Nonsovereign Private

Market Actors

Delegated Authority

representatives,

have never

Public Health

Commissioner

consented to the usurpation of

Medical License

<$'

their authority by private

market actors on a nonsovereign

MCSR

State Authority to Dispense

medical board and to the

Massachusetts Physician

wielding of this authority by anyone other than the specific State Officer chosen by

the elected legislature, namely the Public Health Commissioner. Specifically, the

people of Massachusetts have never consented to what the lower court endorsed, as

seen in the diagram above, and have never consented to their Secretary of Health

granting to private market actors a state police power that the people reserved to

their Commissioner.

The DEA’s newfound averment that “the automatic effect of the regulation is

identical to that of an individualized proceeding” is contradicted by the State’s own

actions, despite the new 2014 regulation (105 CMR 700.120) brought in by

Massachusetts Health Secretary John Polanowicz as his response to the ‘opioid

crisis’ wherein the crisis would be solved by granting state police powers by fiat to

private market actors on a nonsovereign licensing board and stripping physicians of

due process rights conferred by the Fifth Amendment and State law so they can be

easily blocked from earning a living as a physician, no questions asked. Appx. 9

700.120: Void Registrations: A registration is void if the registrant's

underlying professional licensure on which the registration is based is

suspended or revoked.

See https://www.mass.gov/files/documents/2019/06/18/iud-lib-105cmr7Q0.pdf

In Bond II, the Court clearly ruled that the very concept of an “acquirable

police power” is unconstitutional. Bond u. United States, 572 U.S. 844 {Bond II,

2014) Granting state police powers to private market actors on a nonsovereign

licensing board through a departmental regulation is the implementation of exactly

that - “acquirable police power,” and in addition to being consciously, willfully,

blatantly unconstitutional and totally antithetical to the fundamental tenets of the

United States, the regulation also demonstrates Massachusetts Health Secretary

(and former corporate hospital executive) John Polanowicz’s total contempt for the

will of the elected Legislature. Secretary Polanowicz was on notice due to both

Larkin and Bond II that he lacked the authority to grant a state police power to

private market actors, but chose to do so anyway in order to harm physicians’ due

process protections. Larkin v. Grendel’s Den, 459 U. S. 116 (1982) His successor,

Secretary Marylou Sudders has continued to “amend” regulations to ensure

physicians are stripped of all due process rights and that police powers granted to

private market actors are enhanced. Public record requests reveal that no input

was sought from the public, constitutional scholars or the physician community

prior to new regulations being introduced in Massachusetts Register Issue 1275 in

December 2014 with numerous statutory protections stripped, or when it was

‘amended’ by Secretary Sudders in 2017 and 2018. See Appx. 9

Every year the Massachusetts Dept, of Public Health files a mandatory

report to the Legislature. Here is the full section on the state registration from the

2016 report, the latest available online:

Massachusetts Controlled Substance Registration (MCSRk

In order to provide accountability for controlled substances, Massachusetts

General Laws, Chapter 94C, Section 7 and regulations of the Department of

Public Health at 105 CMR 700.004 require every person who manufacturers,

distributes, prescribes, administers, dispenses or possesses controlled

substances to be registered with both the Department of Public Health,

referred to as the Massachusetts Controlled Substance Registration (MCSR)

and federal Drug Enforcement Administration for controlled Substances in

Schedules II-V. In addition, Massachusetts law recognizes those prescription

drugs that are not federally scheduled (Schedule VI) as controlled

substances. The OPMDC is also responsible for automatically enrolling a

person who obtains or renews an MCSR as a participant in the PMP. In

some cases, it may be necessary to take action to revoke, suspend or not

renew an individual practitioner’s MCSR. Upon receipt of notification that a

board of registration has suspended or revoked a registrant’s authorization to

practice, the OPMDC refers the case to the PMP Medical Review Group

(MRG), and an investigation is conducted in accordance with the standards

set forth in 105 CMR 700.105 through 700.120. Depending on the outcome,

the OPMDC will move to suspend, terminate or refuse to renew the MCSR,

including co-incidental activities and enrollment in the PMP.

Available at https://www.mass.gov/lists/dph-annual-reports-and-legislativelvmandated-reports

In 2016 the Department of Public Health thus declared to the Massachusetts

Legislature that they do perform an individualized investigation of any physician

whose medical license has been suspended by the medical board before any taking

away of his controlled substance registration is even contemplated. The

Department agreed that it must “move” to “suspend, terminate or refuse to renew,”

in compliance with and tracking the specific language of, MGL ch. 94C § 7(f). The

Department continues to inform registrants that unless their registration has been

suspended or revoked, it continues in full force and effect. See Appx. 11 Despite

Secretary Sudders, neither the Public Health Commissioner nor the Department of

Public Health has ever declared a physician’s registration to be “automatically void”

based on the pleasure of private market actors on a medical board. The DEA

Administrator is the first in the nation to do so. Worse, the DEA has claimed that

the Standard Order of Authorities, and the requirement that a regulation must

conform to its enabling statute, is a conclusory assertion:

“Dr. Padmanabhan’s only acknowledgment of the regulation is the conclusory

assertion that a regulation may not “override the plain text of a state

statute.” DEA’s brief to the DC Circuit.

Next DEA will claim a state regulation overrides State law and the US

Constitution. In fact, that precisely is already DEA’s legal position in this case: “it is

irrelevant whether formal action has been taken to revoke Respondent’s

Massachusetts CSR Certificate as it is already void.” This cannot be the law in the

United States. “Automatic voidness” of a liberty / property interest is explicitly

unconstitutional, and as unconstitutional as it can get. The Framers most certainly

would be looping the proverbial loop now that DEA Administrator Uttam Dhillon

has demonstrated such contempt for a fundamental, core, founding principle of the

United States that the revolutionaries sacrificed their lives for. In Cohens u.

Virginia, 19 U.S. 264 (1821) the Court ruled that state laws in opposition to federal

laws are void. Regulations and agency precedents that are in opposition to both

their enabling statute and the U.S. Constitution are equally void. Pereira v.

Sessions, 585 U.S.

(2018), Honeycutt v. United States, 581 U.S.

(2017)

This Court has struck down unconstitutional practices in Massachusetts on

numerous occasions. Dinis v. Volpe, 389 U. S. 570 (1968), Caniffe v. Burg, 405 U. S.

1034 (1972), Smith v. Goguen, 415 U. S. 566 (1974), First Nat’l Bank v. Bellotti, 435

U. S. 765 (1978), Bellotti v. Baird, 443 U. S. 622 (1979), Globe Newspaper Co. v.

Superior Court, 457 U. S. 596 (1982), Larkin v. Grendel’s Den, 459 U. S. 116 (1982),

West Lynn Creamery, Inc. u. Healy, 512 U. S. 186 (1994), Hurley v. Irish-American

Gay Group, 515 U. S. 557 (1995), Lorillard Tobacco Co. v. Reilly, 533 U. S. 525

(2001), McCullen v. Coakley, 573 U. S.

(2014)

The DC Circuit erred in accepting DEA at its word that 105 CMR 700.120

is in “harmony” with enabling statute MGL ch. 94C § 7(f), and that DEA did not

violate the Fifth and Tenth Amendments when it claimed, after being forced to cast

about for some legal pretext for its unlawful deprivation, that the enabling State

law was “irrelevant.” By endorsing that regulation 105 CMR 700.120 is in

harmony with its enabling statute, the lower court created novel definitions for the

terms “not inherently inconsistent” and “harmony.” Gonzales v. Oregon, 546 U.S.

243 (2006) Only this Court can correct these novel definitions that are at odds with

the Court’s repeated instructions on statutory interpretation and the requirement

that regulations must comply with enabling statutes and the Constitution. Due to

Bond I&II and Knick, the importance of federalism has recently broken into the

consciousness of the courts but it clearly has not reached federal agencies yet,

thereby making this Court’s review imperative. Only this Court can ensure that

federal agencies remain subject to the basic structural limits of the Constitution

and they don’t treat it merely as a paper tiger.

This Court has ruled that a constitutional violation is complete at the time of

deprivation. Knick v. Township of Scott, Pennsylvania, 588 U.S.

(2019) The

Petitioner awaits a concrete remedy from the Court, namely an order to DEA to

return his DEA registration (BP7993290) back to him.

This Case Is The Perfect Vehicle To Interpret § 824 (a)(3) In

Terms Of The Tenth Amendment - The Decision Below

Misapplies Basic Principles Of Statutory Construction

The relevant section of the Act, 21 U.S.C. ch. 13 § 801 et seq, §824, “Denial,

revocation, or suspension of registration” has an AND and an OR within:

(3) has had his State license or registration suspended, revoked, or denied by

competent State authority AND is no longer authorized by State law to engage

in the manufacturing, distribution, or dispensing of controlled substances or

list I chemicals OR has had the suspension, revocation, or denial of his

registration recommended by competent State authority [emphasis added]

While the portion before the AND ~ may ~ refer to a medical license, the

portion after the AND most certainly refers to a State controlled substance license.

Because the two are not the same in some states, such as in Massachusetts,

Congress chose to not write: ‘has had his State license or registration suspended,

revoked, or denied by competent State authority meaning he is no longer authorized

by State law to engage in the manufacturing, distribution, or dispensing of

controlled substances.’

One may legitimately interpret the plain text of § 824 (a) to refer exclusively

to a State’s controlled substance registration and not to a medical license, given

that it concerns itself solely with “manufacturing, distribution or dispensing of

controlled substances” and not with the practice of clinical medicine. Manufacturing

and distribution are typically done by people who are not licensed physicians and

we are required to resist the assumption that when Congress placed those words

together in that specific sentence they did not know what they were doing. The

Massachusetts Supreme Judicial Court certainly interpreted the Massachusetts

Controlled Substance Act that way:

Practitioner" is specially defined in Section 1 of G. L. c. 94C as "[a]

physician, dentist, veterinarian, podiatrist, scientific investigator, or other

person registered to distribute [or] dispense ... a controlled substance in the

«tt

course of professional practice . . .

The registration referred to in the

definition of practitioner involves registration with the Commissioner of

Public Health.”

Commonwealth v. Robert Chatfield-Taylor, 399 Mass. 1 (1987)

For the SJC, as concerns the Massachusetts CSA, the ‘definition of

practitioner involves registration with the Commissioner of Public Health’ and not a

licensing board comprised of private market actors. If we go by the DEA’s

interpretation that State license in § 824 (a)(3) of the federal CSA refers exclusively

to a medical license, then DEA must show that a Massachusetts physician had his

medical license suspended and had his State controlled substance registration

suspended / revoked by the Public Health Commissioner (the only “competent State

authority” in Massachusetts) as required by State law, MGL ch. 94C § 7(f).

Either way, for Massachusetts persons (physicians, pharmacists,

pharmaceutical manufacturers), proper interpretation of the plain text of § 824 (a)

(3) cannot be reconciled with the DEA’s claim that a medical license is the

controlling document when it writes that “because the CSA requires that a

physician possess state controlled substances authority in order to be deemed a

practitioner, 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.”

Statutory text reigns supreme. For 100 years, the Court has held that all

courts must be “guided by the principle that where words are employed in a statute

which had at the time a well-known meaning at common law or in the law of this

country they are presumed to have been used in that sense unless the context

compels to the contrary.” Standard Oil Co. of N. J. v. United States, 221 U. S. 1

(1911), United States v. Gonzales, 520 U.S. 1 (1997), Honeycutt v. United States, 581

U.S.

(2017), Maslenjak v. United States, 582 U.S.

(2017), Hartford

Underwriters Insurance Co. v. Union Planters Bank, N.A., 530 U.S. 1 (2000)([W]hen

the statute’s language is plain, the sole function of the courts - at least where the

disposition required by the text is not absurd - is to enforce it according to its

terms.), Pereira v. Sessions, 585 U.S.

(2018)(“Unable to root its reading in the

statutory text, the Government and dissent raise a number of practical concerns,

but those concerns are meritless and do not justify departing from the statute’s

clear text.”), O’Connor v. Oakhurst Dairy, 851 F. 3d 69 (1st Cir. 2017)(For want of a

comma we have this case.), Murphy v. National Collegiate Athletic Association, No.

16-476, 584 U.S.

(2018), Smith u. Berryhill, 587 U.S.__(2019)

DEA instead declared that it is “beyond dispute” that ‘Respondent currently

lacks state authority to handle controlled substances in the Commonwealth of

Massachusetts because the Medical Board suspended his medical license, thus

voiding his Massachusetts CSR Certificate[,]’ and then claimed that State law is

“irrelevant.”

DEA deliberately misdirects the courts by conflating the requirements for

obtaining a Registration with the requirements for taking a Registration away, in

order to focus attention on “practitioner” and away from “and is no longer

authorized by State law to engage in the manufacturing, distribution, or dispensing

of controlled substances.” The DEA Acting Administrator’s Final Order in the

Federal Register in this case recorded the following:

“On the basis of the Respondent’s suspended medical license, the

Government argued that the Respondent no longer meets the definition of

“practi[ti]oner” under the Controlled Substances Act, 21 U.S.C. 802 (21), and

under 21 U.S.C. 823(f), which “sets forth the requirements for obtaining a

registration as a practi[ti]oner.” Gov’t Mot. at 4. As such, the Government

argued that Respondent’s . . . [registration] should be revoked.”

Again, in DEA’s brief to the DC Circuit, page 12:

“Specifically regarding Dr. Padmanabhan’s state controlled substance

registration, the Acting Administrator found that, under Mass. Gen. Laws

ch. 94C § 7(f), Dr. Padmanabhan is not eligible for issuance of a controlled

substances registration if he is not authorized to practice medicine.”

But we weren’t talking about issuance, were we? It is explicit in DEA’s briefs

that this conscious conflation underlies all of the ‘loss of state authority’ revocation

actions that DEA has carried out nationwide for years. It is exclusively because this

Petitioner raised a constitutional due process objection to this overt, official,

enshrined agency policy, that DEA suddenly and uniquely felt the need to

superficially deny it while still clinging to that very claim - He is no longer deemed a

practitioner and no longer meets the criteria to obtain a DEA certificate and so we

will summarily revoke it with no need for due process.

“The Acting Administrator agreed with the ALJ that there was no conflict

between the statute governing controlled substance registration (Mass. Gen.

Laws ch. 94C, § 7(f)) and the regulation automatically voiding a registration

on suspension of a medical license (105 Mass. Code Regs. § 700.120). 83 Fed.

Reg. 83,786-87; see 83 Fed. Reg. at 39,787, n.6 (discussing the Public Health

Commissioner’s authority to promulgate 105 Mass Code § 700.120 and the

distinct factual scenario the regulation addresses). Specifically, the statute

pertains to MCSR Certificates issued to those “duly authorized to practice”

medicine in Massachusetts. Id. The Acting Administrator found that Dr.

Padmanabhan was not currently eligible to receive, a MCSR Certificate.

under the statute because he is not authorized to practice medicine, and the

absence of evidence in the state records that Dr. Padmanabhan was

authorized to handle controlled substances was “consistent with” the

regulation voiding his state registration. 83 Fed. Reg. 39,786-87.”

- Resp. brief, pg. 7-8. DC Circuit [emphasis added]

Dr. Padmanabhan asserts that the DEA violated his due-process rights by

engaging in “[deliberate conflation of requirements for registration with

requirements for revocation.” Pet. Br. 11. This argument misconstrues the

record in this case. The passage Dr. Padmanabhan cites to support his

argument is a portion of the Acting Administrator’s adoption of the

procedural history from the ALJ’s recommendation. See Pet Br. 12 (citing 83

Fed. Reg. at 38,785). This passage is not a “deliberate conflation” of

requirements. As the Acting Administrator discussed, because the CSA

requires that a physician possess state controlled substances authority in

order to be deemed a practitioner, 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 83 Fed. Reg. 39,786; Hooper,

76 Fed. Reg. at 71,371—72; Sheran Arden Yeates, M.D., 71 Fed. Reg.

39,130-31 (July 11, 2006); Dominick A. Ricci, M.D., 58 Fed. Reg. 51,104-05

(Sept. 30, 1993); Bobby Watts, M.D., 53 Fed. Reg. 11,919-20 (April 11, 1988),

Blanton, 43 Fed. Reg. at 27,617. The Acting Administrator applied the law

properly.

- Resp. brief, pg. 17-18. DC Circuit

It is vital for the Court to note that the DEA failed to cite a single case of a

Massachusetts physician in its argument. All of the cases cited refer to other states

with different State laws. In Massachusetts, a physician need not “possess state

controlled substances authority in order to be deemed a practitioner!]” if, by

practitioner, DEA means a physician. And because the State Public Health

Commissioner has not suspended or revoked Petitioner’s state controlled

substances authority, he must be deemed a practitioner if by ‘practitioner’ one

complies with the Massachusetts Supreme Court’s ruling: “The registration referred

to in the definition of practitioner involves registration with the Commissioner of

Public Health.” Commonwealth v. Robert Chatfield-Taylor, 399 Mass. 1 (1987).

DEA has already conceded in the lower court that the Public Health Commissioner

has not suspended or revoked Petitioner’s state controlled substance registration.

Even more crucially, § 824 (a)(3) never uses the word “practitioner” and

refers solely to “registrant.” Therefore, just as the Massachusetts Controlled

Substance Act, the federal Controlled Substance Act deals solely with a person’s

registration to manufacture, distribute or dispense controlled substances. Because

of the statutory framework in Massachusetts, for Massachusetts persons a medical

license does not figure in that paragraph at all. DEA repeatedly conceal this fact so

as to misdirect the courts (and physicians’ attorneys) away from properly

interpreting the plain text of that federal law.

Applying standard principles of interpretation to DEA’s own statement, if

DEA meant what it wrote here - “because the CSA requires that a physician possess

state controlled substances authority in order to be deemed a practitioner, 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[,]” - it naturally follows

that the Petitioner indeed remains a “practitioner” because the Public Health

Commissioner never revoked “state authority to dispense” as required by State law.

In a due process procedure regarding a taking, there is no logical need to

discuss the qualifications for issuance. The absurdity and fundamentally anti23

American nature of DEA’s argument jumps out when using the analogy of real

estate - The owner of the land in question was not entitled to purchase the property

and so we will take it. Although the Petitioner put the analysis of the plain text of

§ 824 (a)(3) front and center in his challenge to the summary taking of his DEA

Registration, DEA have steadfastly refused to discuss the importance of the “and”

in § 824 (a)(3) of the CSA in even one of their pleadings. By engaging in the sleightof-hand of consciously misdirecting attention to “practitioner,” and away from both

“registrant” and the “and” in §824 (a)(3) of the CSA, the DEA consciously misled the

lower court, which erroneously assumed that DEA argues in good faith and failed to

independently analyze the text of the law. Proper interpretation determines the

meaning of words in a statute “by reference to the language itself, the specific

context in which the language is used, and the broader context of the statute as a

whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997), United States u.

Gonzales, 520 U.S. 1 (1997), Smith v. BerryhiU, 587 U.S.__(2019)

Even earlier, the Show Cause Order used another word not mentioned in the

statute, “handle,” but DEA claimed it was following the authority of § 824 (a)(3)

when it relied on “handle” to justify a summary taking of Petitioner’s registration.

“The Show Cause Order proposes the revocation of Respondent’s Certificate

of Registration on the ground that he does “not have authority to handle

controlled substances in the Commonwealth of Massachusetts, the state in

which . . .[he is] registered with the DEA.” Id. at 1 (citing 21 U.S.C. 823(f)

and 824(a)(3)).” Final Order, Appx. 5

The record is clear that DEA has never ever, as in ever, relied on the

automatic voidness regulation in even one single revocation case in Massachusetts

previously. Here is the relevant section from the DEA’s Final Order, as published in

the Federal Register, in the case of Dr. Yoon H. Choi, the Massachusetts physician

whose DEA Registration was revoked immediately prior to the Petitioner’s own:

“On May 16, 2017, the Government filed its motion for summary disposition.

Therein, the Government maintained that it is undisputed that Respondent

lacks authority to dispense controlled substances in Massachusetts, the State

in which he is registered, and that therefore, he “no longer meets the

statutory definition of a practitioner.” “Respondent did not file any pleadings

in response to the Government’s motion.” “Accordingly, on June 5, 2017, the

ALJ granted the Government’s motion, finding it undisputed that

Respondent’s state “medical license is currently suspended” and that he

“lacks state authorization to handle controlled substances in Massachusetts,”

the State in which he is registered.” “As a consequence of the Board’s Final

Decision and Order. Respondent is not currently authorized to dispense

controlled substances in Massachusetts, the State in which he is

registered.” [emphasis added]

-Yoon H. Choi M.D. Final Decision and Order, 82 FR 206, October 25, 2017

It is vital for the Court to note the total absence, in the Choi Final Order, of

any reliance on a state regulation, of any reliance on the Massachusetts Public

Health Commissioner, or the breathtaking assertion that “the automatic effect of the

regulation is identical to that of an individualized proceeding.”

DEA is required by the federal Controlled Substance Act to comply with State

law, meaning Massachusetts law in this case. DEA chose to not do so in this case

because it has never done so in 48 years, and would require DEA to deem internal

precedent subservient to State law and the Tenth Amendment. This the DEA is not

prepared to do. “As the Tenth Amendment confirms, all legislative power not

conferred on Congress by the Constitution is reserved for the States.” Murphy v.

National Collegiate Athletic Association, 584 U.S.

(2018) It most certainly has

not been conferred on the DEA or on Mass. Health Secretary Marylou Sudders. The

DC Circuit declined the Petitioner’s explicit invitation to perform the mandatory

textual analysis of both Federal and State law, including the words “and” (federal),

“full force and effect” (state) and “shall.” Smith u. Berryhill, 587 U.S. __ (2019),

Hohn v. United States, 524 U.S. 236 (1998), Zuniga v. Barr, No. 16-72982 (9th Cir.

2019). Even district courts have done this properly. Menominee Indian Tribe v.

DEA, 15-cv-01378, 2016 WL 2997499 (ED Wise. 2016)

The DC Circuit abdicated its duty to properly examine this federal

constitutional question, a question of first impression in that circuit and in this

Court. The DC Circuit has created fresh, idiosyncratic, definitions for the terms

“not inherently inconsistent” and “harmony” that are entirely contrary to

definitions long-employed within that same Circuit and in this Court. Gonzales v.

Oregon, 546 U.S. 243 (2006), Central United Life Ins. Co. v. Burwell, 827 F.3d 70

(D.C. Cir. 2016),

The DC Circuit’s opinion defies a foundational principle of the United States,

that an “automatic” taking without individualized due process is repugnant to the

Constitution, and defies both binding Supreme Court rulings and current precedent

in the DC Circuit itself, Ralls Corp. v. CFIUS, 758 F.3d 296 (2014).

In Gonzales, the Court ruled that the executive branch may not create a

regulation that exceeded the authority delegated by the elected Legislature and

may not violate the 10th Amendment rights of the States.

“If the Attorney General’s argument were correct, his power to deregister

necessarily would include the greater power to criminalize even the actions

of registered physicians, whenever they engage in conduct he deems

illegitimate. This power to criminalize—unlike his power over registration,

which must be exercised only after considering five express statutory factors

—would be unrestrained. It would be anomalous for Congress to have so

painstakingly described the Attorney General’s limited authority to

deregister a single physician or schedule a single drug, but to have given

him, just by implication, authority to declare an entire class of activity

outside “the course of professional practice,” and therefore a criminal

violation of the CSA. See Federal Maritime Comm’n v. Seatrain Lines, Inc.,

411 U. S. 726, 744 (1973) (“In light of these specific grants of. . . authority,

we are unwilling to construe the ambiguous provisions ... to serve this

purpose [of creating further authority]—a purpose for which it obviously

was not intended”).”

Gonzales v. Oregon, 546 U.S. 243 (2006)

It is equally anomalous to claim that state regulation 105 CMR 700.120 was

authorized by implication given that the text of the authorizing statute explicitly

requires defined action to be taken by the Public Health Commissioner after an

individualized due process proceeding that is compliant with MGL ch. 30A.

It is important to note that PEA does not have authority to enforce a

state regulation. Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986)

Gonzales supra. All DEA is authorized to do is follow the plain text of the State law.

namely MGL ch. 94C § 7(f). The lower court claimed that the constitutional

question was waived because it was ‘first raised in the reply brief,’ which is

incorrect. Because DEA was not authorized to enforce state regulation 105 CMR

700.120, it was unnecessary for the DC Circuit to consider whether that regulation

is constitutional or not. Petitioner made this point the focus of his objections before

the ALJ but went unheard, which the Petitioner raised in the lower court as a

violation of the Court’s Cleavinger standard for a proper judicial process. Cleavinger

v. Saxner, 474 U.S. 193 (1985). The lower court instead agreed with the agency that

State law is “irrelevant.”

DEA is owed no deference when it comes to enforcing a state regulation. In

fact DEA’s action also violated the long-standing prohibition against violations of

the Bill of Attainder Clause by enforcing a state regulation that stripped this

physician of his due process rights and liberty / property interest. The Petitioner is

the only physician in Massachusetts whose DEA registration was revoked on the

claimed basis of a state regulation. U.S. Constitution, Article I, § 9(3): "No Bill of

Attainder or ex post facto Law will be passed." The Court ruled that “not every act,

legislative in form” can be considered “law.” Hurtado v. California, 110 US 516

(1884). 105 CMR 700.120 is a regulation, not even an act of the State legislature.

In Bond I&II this Court ruled that federalism protects the individual from

arbitrary power. The grant of state police power to private market actors, treating

State law as “irrelevant,” and the automatic taking of liberty / property interests,

precisely meet the Court’s definition of arbitrary power. This error is an issue of

exceptional importance that deserves certiorari and reversal.

Only this Court, the defender of the Constitution, can protect individual

liberty. This Court has ruled that a constitutional violation is complete at the time

of deprivation. Knick v. Township of Scott, Pennsylvania, 588 U.S.

(2019) The

Petitioner awaits a concrete remedy from the Court, namely an order to DEA to

return his DEA registration (BP7993290) back to him.

The Question Presented Raises Constitutional Issues Of

Paramount Importance

This Tenth Amendment case is exceptional and presents an extraordinarily

important issue of federalism that warrants certiorari in order to protect the

Petitioner from nakedly arbitrary power. “In the precedents of this Court, the

claims of individuals—not of Government departments—have been the principal

source of judicial decisions concerning separation of powers and checks and

balances.” Bond I. Only the Supreme Court can and must rule on Tenth

Amendment issues. Immigration and Naturalization Service v. Chadha, 462 U.S.

919 (1983), Bond v. United States, 564 U.S. 211 (Bond I, 2011) Certiorari is

particularly important here because though Petitioner is the first to have litigated

this question thus far, the violation reported here has been committed numerous

times in the past, as seen in the case of Dr. Yoon Choi and this Petitioner, and is

assured to repeat in the absence of clear instructions from this Court, thus placing

all Massachusetts physicians at grave risk of particularized economic harm.

The DC Circuit’s erroneous opinion officially establishes that federal agencies

may deem State law irrelevant when it suits them, even when federal law requires

their compliance. This is particularly dangerous given that the DC Circuit is the go

to court for review of federal agency decisions. This must not be allowed to stand.

Certiorari is vital. The Court must rule that automatic deprivations of protected

property / liberty interests without individualized proceedings, especially at the

pleasure of private market actors, are repugnant, anti-American, ultra vires.

It bears repeating that DEA is owed no deference when it conies to enforcing

a state regulation that violates the Bill of Attainder Clause by stripping this

physician of his due process rights and liberty / property interest. The Petitioner is

the only Massachusetts physician whose DEA registration was revoked on the

claimed basis of this state regulation. U.S. Constitution, Article I, § 9(3): "No Bill of

Attainder or ex post facto Law will be passed." The Court ruled that “not every act,

legislative in form” can be considered “law.” Hurtado v. California, 110 US 516

(1884). 105 CMR 700.120 is a regulation, not even an act of the State legislature.

This Court has ruled that a constitutional violation is complete at the time of

deprivation. Knick v. Township of Scott, Pennsylvania, No. 17-647, 588 U.S.

(2019) The Petitioner awaits relief from the Court, namely an order to DEA to

return his DEA registration (BP7993290) back to him.

CONCLUSION

The Petitioner worked diligently to retain counsel with Supreme Court

expertise to prepare the Petition. He made continual efforts towards that end and

even made a trip to Washington DC to personally visit law firms and seek an

advocate. Because he was unable to dangle a $30,000 money order up front, it has

proved impossible to engage appropriate counsel. Thus this petition is filed pro se,

in forma pauperis, under Rule 33.2, and it is almost assured that the Solicitor

General will decline to file a brief. Nonetheless, this petition is meritorious and it is

vital that certiorari be granted, the lower court’s opinion reversed summarily, and

individual liberty protected. The Petitioner respectfully requests a writ of certiorari

from this Court.

Respectfully submitted,

October 25, 2019

Bharanidharan Padmanabhan MD PhD

pro se

30 Gardner Road #6A

Brookline MA 02445

617 566 6047

scleroplex@gmail.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.