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REPORTED BY
NORMAN J CLEMENT RPH., DDS, NORMAN L.CLEMENT PHARM-TECH, MALACHI F. MACKANDAL PHARMD, BELINDA BROWN-PARKER, IN THE SPIRIT OF JOSEPH SOLVO ESQ., INC.T. SPIRIT OF REV. C.T. VIVIAN, JELANI ZIMBABWE CLEMENT, BS., MBA., IN THE SPIRIT OF THE HON. PATRICE LUMUMBA, IN THE SPIRIT OF ERLIN CLEMENT SR., WALTER F. WRENN III., MD., JULIE KILLINGWORTH, LESLY POMPY MD., CHRISTOPHER RUSSO, MD., NANCY SEEFELDT, WILLIE GUINYARD BS., JOSEPH WEBSTER MD., MBA, BEVERLY C. PRINCE MD., FACS., NEIL ARNAND, MD., RICHARD KAUL, MD., LEROY BAYLOR, JAY K. JOSHI MD., MBA, ADRIENNE EDMUNDSON, ESTER HYATT PH.D., WALTER L. SMITH BS., IN THE SPIRIT OF BRAHM FISHER ESQ., MICHELE ALEXANDER MD., CUDJOE WILDING BS, MARTIN NJOKU, BS., RPH., IN THE SPIRIT OF DEBRA LYNN SHEPHERD, BERES E. MUSCHETT, STRATEGIC ADVISORS
“WE ARE NOT POWERLESS, AND THROUGH OUR VIDEOS, WRITINGS, AND PHOTOGRAPHS, WE WILL EXPOSE THE ABUSES AND TYRANNY OF UNITED STATES DRUG ENFORCEMENT AGENCY
JUST AS THE VIDEO WAS RECORDED BY THE CELL PHONE CAMERA OF YOUNG DARNELLA FRAZIER, BORE WITNESS TO THE MURDER OF GEORGE FLOYD THE BLOG youarewithinthenorms.com BARES WITNESS AND BOTH ALLOWS THE SYSTEM TO BE HELD ACCOUNTABLE”
FROM THE WORKS OF ZACH SEIGEL AND JENNIFER OLIVA
PHYSICIAN/PHARMACIST/DENTIST
PETITIONERS
VS.
UNITED STATES DRUG ENFORCEMENT (DEA)
DEFENDANTS
The DEA TargetS Healthcare Providers Based On Skin Color and Nation oF Origin
The Defendants’ software criminal forensic tools use evidentiary plausibility standard that misrepresents the statutory, beyond a reasonable doubt, criminal evidence standard.
A public/private partnership named HFPP (Healthcare Fraud Prevention Partnership) selects physicians based on race, gender, age, financial assets, real estate, and nation of origin as a suspect class, preventing those physicians from practicing medicine in a race or gender-neutral manner by coordinating selective enforcement of the Controlled Substance Act.
Under the “State Involvement Doctrine,” such behavior is improper because the software scheme violates the 14th Amendment, the Equal Protection Clause of the U.S. constitution.
The software data analytic services or data is sold to HFPP for cash or in-kind data information. The HFPP uses the data analytics used to manufacture probable cause to induce and coordinate criminal proceedings via an improper standard of evidence. Such behavior occurred in violation of 5 C.F.R. § 2635.501 – 503 (Subpart E – Impartiality in Performing Official Duties)
DOSING DISCRIMINATION: REGULATING PDMP RISK SCORES
Professor Oliva asserts, “PDMP predictive platforms deserve serious scrutiny because they are the only law enforcement-developed digital surveillance systems that health care providers have ever utilized to diagnose and treat patients. Providers may rely on unvalidated PDMP risk scores to make prescribing decisions because they view those scores as clinically useful.
That claim should be viewed with skepticism because there is no evidence that PDMP scores accurately ascertain patient drug misuse risk. It is also questionable whether clinical reliance on PDMP risk scores is truly voluntary, given that the regulatory environment leaves providers with little choice but to take seriously the information generated by proprietary PDMP algorithms.
Most states have enacted laws or regulations that require providers to review patient PDMP data before issuing prescriptions for PDMP-monitored drugs and mandate that dispensers report detailed prescribing data to PDMP before supplying those drugs to patients.
In addition, law enforcement agencies like the DEA utilize PDMP data to surveil prescribers, dispensers, and patients and determine whether providers are prescribing or dispensing controlled substances to patients to warrant a criminal investigation.
Given the potential consequences of being deemed an overprescribed or over dispensed by the DEA, ranging from criminal investigation to controlled substance licensure suspension and revocation to arrest and incarceration, it is fair to conclude that PDMP surveillance impacts prescribing and dispensing decisions.”
THE DEA’s SUB-CLASS of Doctors and patients
The Defendants’ created a suspect class comprising of physicians who treat patients suffering from the diseases of chronic pain and substance use disorders. According to Robinson v. California, Supreme Court of the United States, 1962 370 U.S. 660, 82 S. Ct. 1417, it was improper to qualify a person as a criminal simply because of their medical status.
Statistical analysis by Doctors of Courage of the selection process by analyzing indicted physicians reveals a classification selection process that has produced a disproportionate number of physicians of African American origin (i.e., physicians of minority racial origin), colored physicians, and elderly physicians (old age) for criminal investigation and prosecution. Health and Human Services (HHS), Drug Enforcement Agency (DEA), and the HFPP public-private joint enterprise’s algorithms almost exclusively target older physicians, wealthy physicians, dark-skinned colored physicians, or independent physicians (as compared to large physician groups).
A potential reason for this discriminatory practice is that Defendants HHS and DEA consider colored or older physicians to be disposable. There is less worry that there will be a public outcry by the general population for the targeting of dark-skinned minority and/or elderly physicians.
A potential reason that Defendants HHS and DEA target wealthy physicians is to maximize return on investment (ROI). A potential reason that Defendants HHS and DEA target individual physicians or small medical entities is that these smaller entities lack the financial resources for proper legal defense, allowing the USDOJ to achieve “easy” convictions regardless of the innocence or guilt of its victims.
The targeting of individual, small, and upstart health entities by the Defendants allows their larger healthcare partners (i.e., private members of HFPP and the Defendants’ joint enterprise) to eliminate competition, restrain trade, flourish and monopolize the U.S. healthcare market. The DEA and HHS “physician selection process” discriminates based on age, race, and nation of origin.
Likewise, the HFPP, Qlarant, and BCBSA joint enterprise computer algorithms categorize age, race, and nation of origin as the “suspect class” which violates the US Constitution’s 14th Amendment Equal Protection Clause. The selection process generates probable cause to induce criminal proceedings against the “suspect class” via the wrong standard of evidence.
The software uses the evidentiary plausibility standards that misrepresent the statutory, beyond a reasonable doubt, criminal evidence standard. The pattern amounts to a custom or practice amounting to a policy of deliberate indifference to the constitutional rights of physicians who were classified as members of the suspect class.
The pattern amounts to causes violations of international law and human rights for sick, infirm, and disabled human patients. The members of the suspect class experience a common nucleus of operative facts, namely, an improper style of an investigation that violated the Equal Protection Due Process of the 14th U.S Constitutional Amendment and the 5th U.S. Constitutional Amendment Due Process. These constitutional injuries, among others are the actual and proximate cause of commercial or tort injury to suffering patients and their physicians.
In administrative law, federal agencies may apply their rules retroactively if Congress has authorized them to; otherwise, retroactive application is generally prohibited. The courts disfavor the retroactive application of regulations for several reasons. The courts uphold retroactive regulation where Congress has expressly granted such retroactive power to the agency, as they did in Bowen v. Georgetown University Hospital.
DOJ-DEA ALGORITHMS OF BIAS VIOLATE THE LAW
Defendants’ algorithms violate administrative law as well as Ex Post Facto Law. It is unlawful for Defendants to accomplish their policy objectives through any means it pleases. U.S. Executive Branch agencies should follow the informal notice-and-comment rulemaking procedure, if not the formal rulemaking procedure laid out in the Administrative Procedure Act (APA). The APA requires federal agencies to provide public notice of proposed rules and an opportunity for comment unless the agencies “for a good cause” find that notice and comment “are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B).
Congress empowered U.S. Executive Branch Agencies like HHS to use only the APA’s formal or informal rulemaking procedures to issue binding rules. DEA can enforce a rule only if it is published in the Federal Register or a publicly available repository. Documents not published in these two sources can have no legal consequences.
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IN A WOLRD OF STIGMA AND BIAS
The Due Process Clause requires actual notice and an opportunity to respond if any U.S. Executive Branch Agency wishes to use as binding any guidance document against the public. The Appointments Clause requires that a principal officer must approve the U.S. Executive Branch agency’s binding rules, requiring that a principal officer, approve any document that has a binding effect on the public.
The Administrative Procedure Act (APA) is a federal act that governs the procedures of administrative law. The APA is codified in 5 U.S.C. §§ 551–559. The core pieces of the act establish howcfederal administrative agencies make rules and how they adjudicate administrative litigation. 5 U.S.C. § 551(5)–(7) clarifies that rulemaking is the “agency process for formulating, amending, and repealing a rule,” and adjudication is the final disposition of an agency matter other than rulemaking.
That is, rulemaking goes beyond resolution of specific controversies between parties and includes management and administrative functions. Rulemaking and adjudication can be formal or informal, which in turn determines which APA procedural requirements apply. The APA applies to the different types of administrative actions as follows:
- Formal Rulemaking. 5 U.S.C. §§ 553, 556, and 557 govern formal rulemaking.
- Informal Rulemaking. 5 U.S.C. § 553 governs informal rulemaking.
- Formal Adjudication. 5 U.S.C. §§ 554, 556, and 557 govern formal adjudication.
- Informal Adjudication. The APA does not establish procedural requirements for informal administrative adjudication, but the Due Process Clause of the constitution, the specific agency’s regulations, or other statutes may create procedural protections.
The APA requires that reviewing courts “hold unlawful and set aside agency action” that is “arbitrary” or “capricious”; “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”; or that was issued “without observance of procedure required by law.” 5 U.S.C. 706.
In a case reviewing agency action, “the ‘entire case’ on review is a question of law” and “the district judge sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) “Summary Judgement serves as ‘the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.’” O.A. v. Trump, 404 F. Supp 3d 109, 125 (D.D.C. 2019).
If a plaintiff “prevails on its APA claim,” the “relief under that statute normally will be a vacatur of the agency’s order.” Am. Bioscience, 269 F.3d at 1084. Because “[a]dministrative agencies are creatures of statue,” they “possess only the authority that Congress provided.” Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 665 (2022)(per curiam).
FORMER ATTORNEY GENERAL JEFFEREY SESSIONS
Attorney General Jeffery Sessions as a policy matter, directed federal agencies to use untested computer algorithms and ruthless regulatory action to address national priorities related to the U.S. “opioid epidemic” and via these agency orders tried to demote U.S. Congressional Branch’s enacted laws and court precedents and elevate AG Sessions’ personal policy choices. The Defendants intend to overrule or ignore binding law.
Such agency action is unconstitutional. Repealing the rules based on a U.S. President’s policy choice would violate the Take Care Clause, the Supremacy Clause, and the separation-of-powers doctrine. The president has the unique constitutional duty to ensure that the laws are faithfully executed. The president’s policy choice of having Attorney General Jeffery Sessions derogate portions of the nation’s laws is forbidden by the Take Care Clause – his decision to demote the nation’s laws by elevating his policy preferences over them.
Nor can Defendants on their own ignore or overrule court precedent interpreting and applying the Constitution and acts of Congress. See Hayburn’s Case, 2 U.S. 409 (1792). Furthermore, U.S. Executive Branch Agencies do not have the power under the Constitution to revise, ignore, overrule or stay decisions rendered by federal courts. The Defendants are repealing rules that are codified by U.S. Judicial Branch precedent, violating the separation-of-powers doctrine and unconstitutionally replacing binding law with its policy choice.
The Defendants have not defended their “interpretation” of the Controlled Substance Act under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Not only is there no specific delegation in the Act, and not only is the Defendant’s interpretation foreclosed by the “unambiguously expressed intent” of Congress in the plain text of the Controlled Substance Act; therefore, the Defendants “red flag algorithms” are “procedurally defective.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 220 (2016) (quoting United States v. Mead Corp., 533 U.S. 218, 227 (2001)). Defendants DEA and HHS also lack Chevron deference which requires the courts defer to an agency interpretation of a statute that the agency administers when the statute is ambiguous and the interpretation is reasonable. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984).
But a court defers only if a statute is ambiguous after the court uses all the “traditional tools of statutory construction.” Id/ at 843 n.9; see Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004)(explaining that “deference to [an agency’s] statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent”).
A court may not rest on Chevron to avoid rigorous statutory analysis. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) See Chevron, 467 U.S. at 843-844 (equating “reasonable” with the question of whether “the agency’s answer is based on a permissible construction of the statute”). To be reasonable, an interpretation must account for “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). Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014)(finding an agency interpretation unreasonable because it did not fit with the statute’s design and structure).
FOR NOW, YOU ARE WITHIN
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LOW HANGING FRUIT 10/2019
