UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Norman Clement, pro-se Petitioner./
Case: No. 21-1262
Drug Enforcement Administration,
Respondent./ _________________________________________
OUT OF A MOUNTAIN OF DESPAIR COMES A STONE OF HOPE SUPPLEMENTAL MOTION FOR A REHEARING UNDER FEDERAL RULES OF APPELLATE PROCEDURE, RULE 35
The Appellant moves, pro se, submits this Petition request under Rule 35 before entire Panel for Rehearing En Banc from a May 25, 2022 decision , barring a summary reversal of the DEA Administrative court and further based on United States Supreme Court ruling in Ruan-Khan vs. United States case: No- 20-1410.
STATEMENT AT ISSUE
Based on a June 27, 2022 U.S. Supreme Court Finding, the appellant moves pro se to request a reconsideration, in support of vacating the revocation of his pharmacy DEA license.
https://www.oyez.org/cases/2021/20-1410
FACTUAL BACKGROUND
Pronto Pharmacy was searched and property seized by the DEA. Pronto Pharmacy lacked requisite scienter and/or an intent to defraud. The DEA searched and seized video exculpatory equipment that has not been returned. Using an subjective evidentiary standard of preponderance of evidence, the DEA revoked Pronto’s Pharmacy ‘s DEA registration. Such action by the DEA, was improper. The Justice Department sued Walmart in December 2020, accusing it of violating the federal Controlled Substances Act by filling thousands of prescriptions “that were not issued for legitimate medical purposes or in the usual course of medical practice.” The judge overseeing the government’s civil lawsuit ordered a halt to the proceedings last November, however, after Walmart argued two criminal cases pending before the Supreme Court would determine “what it means for a prescriber to depart from the usual course of medical practice.”
The DEA did not revoke the DEA Control registration at any of Walmarts Stores country including those in the Middle District of Florida were many of the alleged violation took place stating:
“The opioid crisis has exacted a catastrophic human toll upon the residents of our district and upon our country,” said U.S. Attorney for the Middle District of Florida Maria Chapa Lopez. “National pharmacy chains must meet their legal obligations when dispensing and distributing these powerful medications. The filing of this complaint in collaboration with the Department of Justice
and other United States Attorneys’ Offices demonstrates our firm commitment to enforcing these critical legal requirements.”
The Court can redress the harm.
Under the US constitution, must all persons or entities be similarly treated?
RULE: Equal Protection provides that a governmental body may not deny people equal protection of its governing laws. The governing body state must treat an individual in the same manner as others in similar conditions and circumstances. The Fifth Amendment’s Due Process Clause requires the United States government to practice equal protection. The Fourteenth Amendment’s Equal Protection Clause requires states to practice equal protection.
ANALYSIS:
Pronto Pharmacy represented a single store, that is owned and operated by the African American Black male plaintiff while Wal- Mart Inc. involves multiple pharmacies spread over multiple states. Pronto Pharmacy and Wal-Mart were alleged to have unlawfully distributed Opioids. Wal-Mart was allowed to cure any defects and its DEA registration left intact. Pronto Pharmacy was summarily suspended.
CONCLUSION:
Pronto Pharmacy was treated differently than Wal-Mart Inc. in violation of the Equal Protection clause of the 14th Amendment. Pronto’s pharmacy’s was discriminated against, in violation of the Equal Protection Clause. The Court can remedy the situation. Pronto’s DEA registration must be restored.
II. Abuse of Discretion
Abuse of discretion is a standard by which appellate courts review certain decisions by lower courts. The standard is used when the appellate court is reviewing a “discretionary” ruling of the lower court judge or an administrative agencies .
ISSUE
Did the Administrative DEA court abused its discretion when the administrative court revoke Ponto’s Pharmacy DEA registration ?
ANALYSIS
Walmarts alleged violation involved billions of dollars over 3,500 stores in 50 states and territories, and not one of their Controls Substance Certificates throughout the country and or the Middle District of Florida was suspended or revoked, whereas Pronto Pharmacy alleged violation involved thousands of dollars, one retail store suffered an immediate suspension leading revocation of their registration. The discretion of the DEA Administrative Court was not justified by the evidence and based exclusively on speculation. No finding of actual drug diversion was proven or found. No manufacturing of drugs occurred.
CONCLUSION
The revocation of Pronto’s Pharmacy’s DEA registration represents an abuse of discretion of the Administrative court. That Pronto Pharmacy was treated different than Walmart where The Justice Department seeks civil penalties, which could total in the billions of dollars, and injunctive relief. Pronto Pharmacy was alleged to act unlawfully and suffered an immediate suspension of its Control Substance registration.
Under the US constitution, must all persons or entities be similarly treated?
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We review the two rulings for abuse of discretion. See United States v. Lockhart , 844 F.3d 501, 512 (5th Cir. 2016). If error occurred, it can be excused if harmless. See United States v. El-Mezain , 664 F.3d 467, 525-26 (5th Cir. 2011) ; see also Fed. R. Crim. P. 52(a). Here, because the alleged errors are non-constitutional, such errors are harmless unless they had a “substantial and injurious effect or influence in determining the jury’s verdict.”
See El-Mezain , 664 F.3d at 526 (quoting United States v. Lowery , 135 F.3d 957, 959 (5th Cir. 1998) (per curiam) ). “Under this standard, we ask ‘whether the error itself had substantial influence’ on the jury in light of all that happened at trial; if we are ‘left in grave doubt, the conviction cannot stand.’ ” Id. (quoting Kotteakos v. United States , 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ).
SUMMARY OF THE ARGUMENT
Department of Justice has alleged that Walmart Inc. unlawfully dispensed controlled substances from pharmacies it operated across the country and illegally distributed controlled substances to those pharmacies throughout the height of the prescription opioid crisis. The complaint alleges that this unlawful conduct resulted in hundreds of thousands of violations of the Controlled Substances Act (CSA). The Justice Department seeks civil penalties, which could total in the billions of dollars, and injunctive relief.
The Justice Department sued Walmart in, accusing it of violating the federal Controlled Substances Act by filling thousands of prescriptions “that were not issued for legitimate medical purposes or in the usual course of medical practice.” The judge overseeing
the government’s civil lawsuit ordered a halt to the proceedings in November 2021 after Walmart argued two criminal cases pending before the Supreme Court would determine “what it means for a prescriber to depart from the usual course of medical practice.”
“In Ruan v. U.S. and Kahn v. U.S., the government argues doctors lose the protection of their license to prescribe opioids if they act outside of what experts consider to be usual medical practice. The defendants, who were convicted of violating the CSA, say the standard should be the same as in other criminal cases, where prosecutors must prove they acted with criminal intent, not just in a way other physicians consider to be improper.”
The Department of Justice has alleged that both Pronto Pharmacy, and its owner Norman J Clement, Walmart Inc. unlawfully dispensed controlled substances from pharmacies it operated across the country and unlawfully distributed controlled substances to those pharmacies throughout the height of the prescription opioid crisis. The complaints alleges that this unlawful conduct resulted in hundreds of thousands of violations of the Controlled Substances Act (CSA). The Justice Department seeks civil penalties against Walmart Inc, which could total in the billions of dollars.
_________________________________
https://www.justice.gov/opa/pr/department-justice-files-nationwide-
STATEMENT OF FACTS
On June 27 2022 the Supreme Court in 9-0 vote in the Ruan vs US restored sanity to the practice of medicine. Their ruling and the written opinion by Justice Beyer restored the original intent of the Controlled Substance Act. The CSA passed by congress was a regulatory act that indicated who could prescribe, dispense, and distribute controlled medication.
Walmart Inc., states U.S. Supreme Court decision requiring prosecutors to prove doctors “knowingly” wrote invalid opioid prescriptions, with Walmart arguing the ruling obliterated the government’s civil lawsuit accusing it of failing to block millions of illegal opioid prescriptions. In Ruan the majority ruled that the federal Controlled Substances Act contains a provision requiring prosecutors to prove guilty knowledge, not just that a doctor violated professional standards by writing opioid prescriptions. The section of federal law detailing the duties of pharmacies contains the word “knowingly,” meaning the same standard of knowing wrongdoing applies to them as to doctors, Walmart argued. Justice Samuel Alito’s concurrence, uncontested by the majority, says “mere deviations from objective professional norms” are not enough to fall outside the “usual course” test.
“Instead the pharmacist must cease acting as one at all, such as by pursuing objectives `alien’ to the profession,” the Walmart company said. “Regardless of whether that standard is viewed as an objective test, a subjective test, or both, the complaint does not come close to satisfying it, through `circumstantial evidence’ or otherwise,”
Justice Stephen Beyer wrote:
“As we have said, §841 makes it unlawful, “[e]xcept as au- thorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled sub- stance.” We now hold that §841’s “knowingly or intentionally” mens rea applies to the “except as authorized” clause. This means that once a defendant meets the burden of pro- ducing evidence that his or her conduct was “authorized,” the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted
in an unauthorized manner. Our conclusion rests upon several considerations.”
Justice Beyer wrote:
“that the authority to prescribe medication was the right of the prescribing physician alone. No entity or person can supersede this right. In addition, Justice Beyer says that the dose, quantity, and combination is determined by the prescribing health care provider.” Pharmacists play a critical role in our nation’s healthcare system, daily ensuring that, among other things, millions of patients receive the medicines they need as well as instructions for safely using them. Whether in independent pharmacies or chain drug stores, pharmacists and their employers share the same mission when it comes to prescribed treatment: to deliver to patients the medicines that licensed practitioners have determined they need.”
Justice Beyer further states:
“that because of actions by physicians, millions of lives have been saved because physicians were free to use combinations of drugs off label.”
Based on the decision as well as the written opinion by Justice Beyer, all health care providers previously charged should have their sentences vacated and be released from incarceration. Those who are now on probation should have their sentences vacated and be released from further punishment. All monies and property should be returned to said individual. All medical and DEA licenses should be returned immediately. Any penalties or fines required for the restoration of these licenses should be dropped, and damages should be rewarded. After all, how can you be convicted when no crime occurred?
_______________________________________
https://www.supremecourt.gov/opinions/21pdf/20-1410_1an2.pdf pg.5-9
CONCLUSION
The Appellant requests that the Court vacates the Order of Revocation of Pronto’s Pharmacy DEA registration. In the alternative, remand the case back to the trial court for adjudication under the proper evidentiary standard.
WHEREFORE, WE REQUEST UPON THIS COURT:
- Grant this motion and reverse these findings and decision of the Administrative Court, return and restore all privileges of the DEA Control Registration Certificates of Pronto Pharmacy LLC.
- Further, Dismiss the Decision of the Administrative Judge Mark Dowd in agency case No: 19-42, Federal Registry filed 1927282 on December 20, 2021with extreme prejudice.
- Return all Files, Equipment, Medication to Pronto Pharmacy Llc and its owner Norman J Clement of Tampa, Florida.
- Reward damages and penalties of amounts greater than $587 million U.S. dollars, I’ve lost my life savings
July 3, 2022
RESPECTFULLY SUBMITTED
Norman J Clement
Norman J Clement, pro se
Table of Authorities
1. https://www.justice.gov/opa/pr/department-justice-files- nationwide-lawsuit-against-walmart-inc-controlled-substances-act
2. https://youarewithinthenorms.com/2022/07/02/doj-dea-acting- with-scienter-in-484-million-dollars-healthcare-fraud-allegations-
against-pain-center-exposed-and-defeated-by-team-of-attorneys-led- by-chapman-law-firm/
3. https://supremecourt.gov/opinions/21pdf/20-1410_1an2.pdf
4. https://filtermag.org/supreme-court-pain-dea/? utm_source=twitter&utm_medium=social&utm_campaign=filter
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 28, 2022, a true and correct copy of the foregoing was electronically filed via ECF and/or served via e-mail upon the following:
I, Norman J Clement, hereby certify that I electronically filed and agree to utilize the foregoing Respondent’s Notice of Filing the Certified List of the Record with the Clerk of the Court for the jointly
United States Court of Appeals for the District of Columbia Circuit, by using the appellate CM/ECF system, on July 28, 2022. I certify further that Petitioner is pro se, and that service will is accomplished by electronic mail to
Anita Gay, Esq United States Department of Justice Criminal Division/ Narcotic and Dangerous Drugs Section 145 N Street, NE, Room 2E-404 Washington, D.C. 20002 (202) 353-7629 anita.gay2@usdoj.gov
Norman J Clement
Norman J Clement pro. se prontopharmacy@aol.com
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