Milad Ishak Shaker, M.D., DAB No. 3182 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Milad Ishak Shaker, M.D. (Petitioner) appeals the January 3, 2025 decision of an Administrative Law Judge (ALJ) affirming the determination of the Inspector General (I.G.) to exclude Petitioner from participation in all federal health care programs for seven years pursuant to section 1128(a)(4) of the Social Security Act (Act).  Milad Ishak Shaker, M.D., DAB CR6595 (ALJ Decision).  We affirm the ALJ Decision.

Legal Background

Section 1128(a)(4) of the Act mandates exclusion of any individual who “has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  Act § 1128(a)(4); accord 42 C.F.R. § 1001.101(d).  Section 1128(a)(4) applies to present and former health care practitioners and suppliers.  42 C.F.R. § 1001.101(d)(1).  A “convicted” individual includes one against whom a “Federal, State, or local court” has entered a “judgment of conviction” or made a “finding of guilt.”  Act § 1128(i)(1)-(2); 42 C.F.R. § 1001.2 (defining “Convicted”).

An exclusion under section 1128(a) of the Act must be for “not less than five years.”  Act § 1128(c)(3)(B); accord 42 C.F.R. § 1001.102(a).  The I.G. may extend the exclusion period beyond five years if certain “aggravating factors” are present.  42 C.F.R. § 1001.102(b).  One relevant aggravating factor is that “[t]he sentence imposed by the court included incarceration.”  Id. § 1001.102(b)(5).  Another is that the individual “has been the subject of any other adverse action by any Federal, State or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.”  Id. § 1001.102(b)(9).  If the I.G. determines that any aggravating factor justifies an exclusion longer than five years, then three specified mitigating factors – and only those factors – may apply to reduce the exclusion period, but cannot reduce it to less than five years.  See id. § 1001.102(c).

Page 2

On receiving notice of an exclusion, the excluded individual may request an ALJ hearing.  42 C.F.R. §§ 1005.2(a), 1001.2002.  The hearing is “only on the issues of whether: (i) The basis for the imposition of the sanction exists, and (ii) The length of exclusion is unreasonable.”  Id. § 1001.2007(a).  The ALJ may not review, and the excluded individual may not “collaterally attack,” the criminal conviction underlying an exclusion:

When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d) (emphasis added).

The ALJ issues an “initial decision,” which a dissatisfied party may appeal to the Departmental Appeals Board, Appellate Division (Board).  Id. §§ 1005.20(a), 1005.21(a).

Case Background¹

I.         Petitioner’s federal felony conviction

A grand jury empaneled by the United States District Court for the Western District of Pennsylvania (District Court) returned a 54-count Indictment on October 2, 2018, and a 56-count Superseding Indictment on December 18, 2018, against Petitioner, a physician.  ALJ Decision at 4; I.G. Exs. 2, 3; P. Ex. 2, at 6, 9.  Counts 1-52 of the Superseding Indictment charged Petitioner with violating 21 U.S.C. § 841(a)(1), (b)(1)(C), and (b)(2).   Under section 841(a)(1) it is “unlawful for any person knowingly or intentionally,” unless authorized, to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance,” and subparagraphs (b)(1)(C) and (b)(2) specify penalties for such offenses.  The Superseding Indictment alleged that from 2014 to 2017, Petitioner intentionally and unlawfully dispensed and distributed Schedule II and IV controlled substances to individuals identified as T.S. and B.S. “outside the usual course of professional practice and not for a legitimate medical purpose.”  I.G. Ex. 3, at 2-7.  Petitioner allegedly issued such prescriptions to T.S. and B.S. “in return for sexual favors either physically or by electronic communication, such

Page 3

as text messaging.”  Id. at 1.  The last four counts of the Superseding Indictment charged Petitioner with other crimes.²  Petitioner pleaded not guilty to all charges.  P. Ex. 2, at 9.

Petitioner’s District Court trial from October 7 through 17, 2019 resulted in a jury verdict finding him guilty of 14 felony counts of unlawful distribution of controlled substances to T.S. and not guilty of 37 counts, with five additional counts dismissed and not before the jury.  P. Ex. 2 at 14-15; I.G. Ex. 6.  On December 5, 2019, Petitioner filed a motion for judgment of acquittal or for a new trial, which the District Court denied on January 6, 2020.  P. Ex. 2 at 16, 19; I.G. Ex. 9, at 1, 4; I.G. Ex. 10, at 8.

At a February 7, 2020 hearing, the District Court sentenced Petitioner and entered a judgment of conviction against him.  I.G. Ex. 7; I.G. Ex. 8; I.G. Ex. 10.  The judgment confirmed that Petitioner “was found guilty on” 14 counts of the Superseding Indictment, consisting of nine counts for “Unlawful distribution of Schedule II Controlled Substances” and five counts for “Unlawful distribution of Schedule IV Controlled Substances,” in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and (b)(2).  I.G. Ex. 8, at 1-2; see also I.G. Ex. 10, at 50.  The District Court sentenced Petitioner to 41 months of imprisonment and three subsequent years of supervised release and imposed a $1,400 special assessment and a $15,000 fine.  I.G. Ex. 7; I.G. Ex. 8, at 1-4, 7, 8; I.G. Ex. 10, at 50-53; P. Ex. 2, at 20-21.

The District Court issued a Memorandum Order that addressed Petitioner’s “comments” during the sentencing hearing and ruled that, to the extent they “constitute a renewed motion for acquittal, that motion is DENIED.”  I.G. Ex. 9, at 1.  Among other arguments, Petitioner “maintained that the guilty verdicts are inconsistent with the not-guilty verdicts found at other counts,” which, the judge explained, “is not the case.”  Id. at 3.  The District Court rejected Petitioner’s claims of innocence and summarized that “[t]hroughout the course of trial, and continuing through sentencing, [Petitioner] has repeatedly denied wrongdoing, refused to accept responsibility for his actions, and lied to the court.”  Id.

Petitioner appealed his criminal conviction to the United States Court of Appeals for the Third Circuit (Third Circuit), which in a September 24, 2020 decision assessed Petitioner’s arguments as “wrong on all counts” and affirmed the District Court judgment.  United States v. Shaker, 827 F. App’x 204, 206 (3d Cir. 2020); see also P. Ex.

Page 4

2, at 21; P. Ex. 18, at 1, 4-5; P. Ex. 19.  On December 8, 2020, the Third Circuit denied Petitioner’s request for a rehearing.  P. Ex. 18, at 6.
 
II.        Petitioner’s state medical licensure proceedings

The Pennsylvania State Board of Medicine (State Medical Board) licensed Petitioner to practice medicine in Pennsylvania on June 19, 2009.  ALJ Decision at 3; I.G. Ex. 12, at 7; P. Ex. 44, at 4.  On December 1, 2020, after the Third Circuit had affirmed Petitioner’s criminal conviction, the State Medical Board issued a Final Order suspending his medical license “for at least 10 years from the date of conviction (February 7, 2020).”  I.G. Ex. 12, at 1, 18 (emphasis omitted).  The basis of the license suspension was that the Pennsylvania Medical Practice Act of 1985 requires automatic suspension upon the “conviction of an offense under the laws of another jurisdiction, which, if committed in this Commonwealth, would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act.”  63 Pa. Stat. Ann. § 422.40(b) (West).  See I.G. Ex. 12, at 1, 5, 10, 13-14, 18.  During the licensure proceedings, Petitioner “asserted that he was innocent of the charges for which he was found guilty” but “admitted being convicted and did not deny that this crime would be a felony under the Drug Act if committed in” Pennsylvania.  I.G. Ex. 12, at 5.  Petitioner subsequently requested reinstatement of his medical license, which the State Medical Board denied on December 18, 2024; Petitioner requested reconsideration, and on January 2, 2025 the State Medical Board stayed its denial of reinstatement in order to consider Petitioner’s reconsideration request.  P. Suppl. Mot. for Consideration of New Information; P. Suppl. Exs. 1-2.

III.      Post-conviction federal court proceedings

Meanwhile, Petitioner’s federal litigation continued.  On January 29, 2021, he sought post‑conviction relief by filing a motion pursuant to 28 U.S.C. § 2255 challenging his sentence in the District Court.³  P. Ex. 2, at 22; P. Ex. 20.  After further filings by the parties, the District Court denied Petitioner’s motion in part, dismissed it in part, and described Petitioner’s claims as “clearly frivolous.”  P. Ex. 2, at 20-25; P. Ex. 21, at 6.  Petitioner appealed to the Third Circuit, which informed him the appeal could not proceed unless he applied for a certificate of appealability.  P. Ex. 22, at 1-3; P. Ex. 23, at 1 (citing 28 U.S.C. § 2253).  Petitioner applied for one, and on June 17, 2024, the Third Circuit issued an order and judgment denying the application because “[j]urists of reason would not debate the District Court’s denial of” Petitioner’s claims and “would not debate that the proposed claims are without arguable merit.”  P. Ex. 22, at 3;

Page 5

P. Ex. 24; P. Ex. 26, at 1-2; P. Ex. 27.  Petitioner sought a rehearing, which the Third Circuit denied on July 9, 2024.  P. Ex. 22, at 4; P. Exs. 29, 30.  Petitioner filed motions in the District Court on July 18 and 30, 2024 seeking further relief, which the judge denied, stating Petitioner had presented a “gross mischaracterization of the Third Circuit’s Order,” which was a “clear denial of” a certificate of appealability.  P. Ex. 2, at 26-27; see also P. Exs. 33, 34.  On August 30, 2024, Petitioner’s probation officer petitioned the District Court for a warrant against Petitioner due to his alleged violation of two conditions of supervised release.  P. Ex. 2, at 27; P. Ex. 37, at 1.  On October 23, 2024, after a hearing, the District Court rescinded the warrant after Petitioner agreed under oath “to abide by all mandatory, standard, and special conditions” of his supervised release.  P. Ex. 2, at 29; P. Ex. 40.

IV.       The I.G.’s exclusion determination

By letter dated December 30, 2022, the I.G. excluded Petitioner from participation in all federal health care programs per section 1128(a)(4) of the Act, based on Petitioner’s felony conviction in the District Court “of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  I.G. Ex. 1, at 1.  The I.G. increased the exclusion’s length from the mandatory minimum of five years to “a minimum period of 7 years” based on the aggravating factors in 42 C.F.R. § 1001.102(b)(5) (concerning incarceration) and (b)(9) (concerning other adverse governmental actions based on the same set of circumstances).  Id.  The exclusion was effective 20 days from the date of the letter.  Id.; see also 42 C.F.R. § 1001.2002(b) (“The exclusion will be effective 20 days from the date of the notice.”).

V.        ALJ Proceedings and ALJ Decision

On August 20, 2024, Petitioner requested an ALJ hearing to challenge the I.G.’s exclusion determination and subsequently filed a brief, 44 initial exhibits, and two supplemental exhibits.  ALJ Decision at 2-3.  Petitioner maintained he had not been convicted of a felony that required his exclusion, disagreed with the I.G.’s identification of aggravating factors, and argued that “the entire exclusion proceedings are unlawful” because they were “premised on nonexistent conviction and sentencing,” and “the entire criminal proceeding” was “moot.”  Informal Br. of P. at 1-2, 58, 62, 68-71.  Petitioner also asserted that “the wrong Social Security number” was used in the criminal proceedings, a “clear background report” confirmed “the nullity of the proceeding,” and the Third Circuit decision had “render[ed] the nonexistent conviction void ab initio.”  Id. at 69-70.  In sum, Petitioner claimed the exclusion was “grounded in an unlawful conviction deemed nonexistent due to jurisdictional defects and procedural irregularities” and therefore should be “terminated.”  Id. at 70.

The I.G. submitted a brief, a reply brief, and 12 exhibits.  ALJ Decision at 3.  The I.G. argued that section 1128(a)(4) of the Act required Petitioner’s exclusion and the seven-

Page 6

year exclusion period was reasonable as the record established the aggravating factors in 42 C.F.R. § 1001.102(b)(5) and (b)(9) and no mitigating factors applied.  I.G. ALJ Br. at 5-7, 12; I.G. Reply Br. to ALJ at 1, 3.  The I.G. contended that Petitioner’s arguments were an impermissible collateral attack on the underlying conviction and thus not reviewable per 42 C.F.R. § 1001.2007(d).  I.G. ALJ Br. at 13; I.G. Reply Br. to ALJ at 1.

On January 3, 2025, the ALJ issued a written decision affirming the I.G.’s exclusion determination.  See ALJ Decision at 1.  The ALJ decided the case based on the parties’ written submissions because neither party sought a hearing or proposed any witnesses to testify.  See id. at 3.  The ALJ admitted all proposed exhibits and found the record “supports the conclusion that all of the elements for a mandatory exclusion are met” under section 1128(a)(4) of the Act.  Id. at 8.  The ALJ upheld the exclusion’s length as not unreasonable because the I.G. established the aggravating factors in 42 C.F.R. § 1001.102(b)(5) and (b)(9) and Petitioner proved no mitigating factors.  Id. at 10-12.  The ALJ ruled that Petitioner’s arguments were “impermissible collateral attacks or otherwise lack merit.”  Id. at 14 (emphasis omitted).

VI.     Board proceedings

On January 23, 2025, Petitioner appealed the ALJ Decision to the Board.  Notice of Appeal & Br. in Supp. of Appeal (collectively NA).⁴  Petitioner’s appeal filing included three attachments consisting of criminal case docket pages (Attachs. A and B, NA at 67-76) and documents concerning Petitioner’s passport (Attach. C, NA at 77-80).  The I.G. filed a timely response brief.  I.G.’s Resp. to P.’s Not. of Appeal & Br. (I.G. Br.).  Petitioner filed a reply brief.  Reply Br. in Opp’n to the IG’s 2/21/2025 Resp. (P. Reply).  Petitioner subsequently asked the Board’s permission to file new evidence.  Mot. for Leave to File New Evidence/Information (P. New Evid. Mot.)

Standard of Review

The Board reviews a disputed issue of fact as to whether the ALJ “decision is supported by substantial evidence on the whole record” and reviews a disputed issue of law as to whether the ALJ decision “is erroneous.”  42 C.F.R. § 1005.21(h).

Page 7

Analysis

We first address Petitioner’s reservation of his “legal rights for Oral Argument if deemed necessary.”  NA at 64; see also P. Reply at 18 (stating Petitioner’s intention “to request oral arguments, if deemed necessary by the Board”).  In an appeal to the Board concerning an I.G. exclusion, there generally “is no right to appear personally before the [Board].”  42 C.F.R. § 1005.21(d).  “On rare occasions, the Board may grant a request for oral argument if the Board determines that oral argument would facilitate its decision-making.”  Guidelines, “Development of the Record on Appeal,” ¶ (e).  The Board considers oral argument unnecessary in this case because we can reach a sound decision based on the extensive administrative record and the parties’ written submissions, which adequately present the issues.  Oral argument would not facilitate the Board’s decision-making in this case, therefore oral argument is denied.

Petitioner raises before the Board four primary arguments, which we reorder for clarity.  NA at 3-6.  First, Petitioner argues that the I.G.’s and the “DAB/ALJ’s attempt to exercise jurisdiction over this proceeding is a stark example of ultra vires action, as this case is unequivocally moot and dismissed” because “the issues presented are no longer live or contested.”  NA at 6; see P. Reply at 2, 5, 16.  Second, Petitioner asserts the ALJ Decision “fails to address the merits of my 72 pages representation in addition to 44 Exhibits” and is “cursory and baseless.”  NA at 3, 4.  Third, Petitioner contends that “the ALJ’s decision to ignore the mootness and dismissal of this case, while simultaneously mislabeling my briefing as a collateral attack, constitutes a profound error of law.”  NA at 5; see P. Reply at 13-16.  Fourth, Petitioner complains that the ALJ showed unlawful bias “[b]y uncritically adopting” the I.G.’s position and disregarding Petitioner’s arguments, and thus “effectively assumed the role of an advocate for the [I.G.], rather than maintaining the impartiality required by law.”  NA at 4.  Petitioner also seeks to present new evidence and arguments to the Board.  NA at 39, 42, 45, 47-58, 59-60, 63.  For reasons explained below, we reject each argument, decline to remand this case for the ALJ to consider Petitioner’s new evidence, and affirm the ALJ Decision.

I.         The ALJ properly exercised jurisdiction.

Petitioner’s jurisdictional argument is incorrect as a matter of law.  Petitioner claims the record shows “the criminal charges were dismissed” and his “medical license suspension is about to be resolved,” so “[t]he IG lacked jurisdiction to impose the sanctions, and the ALJ lacked jurisdiction to issue a decision affirming” them.  NA at 8, 64.  Under section 1128(a) of the Act, the Secretary of the United States Department of Health and Human Services has authority, which the Secretary delegated to the I.G., to exclude an individual under specified circumstances.  48 Fed. Reg. 21,662, 21,662 (May 13, 1983); 53 Fed. Reg. 12,993, 12,993 (Apr. 20, 1988); see also 57 Fed. Reg. 3,298 (Jan. 29, 1992) (I.G. implementing regulations).  The ALJ lawfully asserted jurisdiction to adjudicate this appeal from an I.G. exclusion.  ALJ Decision at 3 (citing 42 U.S.C. § 1320a-7(f)(1); 42

Page 8

C.F.R. §§ 1001.2007, 1005.2).  Petitioner’s misapprehension of the record facts (discussed further below) has no jurisdictional effect.

II.        The ALJ Decision is supported by substantial evidence and free of legal error.

We reject Petitioner’s claims that the ALJ Decision lacked “a thorough examination of the merits” and that the ALJ erred “by not offering legal counterarguments for [Petitioner’s] facts supported with evidence and laws.”  NA at 64; see P. Reply at 2, 12.

We uphold the ALJ’s factual findings because substantial evidence supports them.  “Substantial evidence” means “more than a mere scintilla of evidence,” and evidence that is sufficient for a reasonable mind to accept as adequate to support a conclusion.  Ellen L. Morand, DAB No. 2436, at 3 (2012).  The ALJ Decision meets that standard.  The ALJ detailed the complex procedural history of Petitioner’s federal judicial and state administrative proceedings and made 30 specific findings of fact with supporting citations to numerous exhibits filed by both parties.  ALJ Decision at 1-8 (citing I.G. Exs. 1-3, 6-12, and P. Exs. 2, 18-22, 25-27, 42-44).

The ALJ correctly applied relevant law to the record evidence.  Petitioner shows no legal error in the ALJ’s conclusion that all elements for a mandatory exclusion under section 1128(a)(4) of the Act were met.  See ALJ Decision at 8-10.  Specifically, the ALJ supportably found that Petitioner was a health care practitioner, id. at 10, who was convicted of a felony offense, id. at 9, which occurred after August 21, 1996, id. at 10, relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, id.  The ALJ correctly reasoned that Petitioner was “convicted” for purposes of exclusion under section 1128(a)(4) of the Act because a “jury found Petitioner guilty of 14 counts in the Superseding Indictment, and the District Court issued a judgment of conviction.”  Id. at 9 (citing Act § 1128(i)(1)- (2)).

Petitioner also shows no error in the ALJ’s conclusion, based on substantial evidence, that a seven-year exclusion (two years longer than the mandatory five-year minimum) “is fully supported by the record and serves the remedial purpose of protecting Medicare program beneficiaries.”  ALJ Decision at 14.  The ALJ appropriately applied the aggravating factor at 42 C.F.R. § 1001.102(b)(5), that “[t]he sentence imposed by the court included incarceration,” because Petitioner’s sentence included 41 months of incarceration.  Id. at 10; I.G. Ex. 8, at 3; I.G. Ex. 10, at 50, 52.  The ALJ also supportably concluded that the State Medical Board’s suspension of Petitioner’s medical license established the separate aggravating factor at section 1001.102(b)(9).  ALJ Decision at 11.  We agree with the ALJ that the incarceration factor alone “is sufficient to justify the seven-year exclusion,” as “Petitioner’s incarceration for 41 months is particularly aggravating.”  ALJ Decision at 11, 13.  “[A] substantial period of incarceration would, on its own, justify the I.G. in increasing an exclusion significantly in excess of the five-year mandatory minimum,” and even a nine-month incarceration period qualifies as

Page 9

“relatively substantial.”  Juan de Leon, Jr., DAB No. 2533, at 6 (2013); see Richard E. Bohner, DAB No. 2638, at 18 (2015) (confirming even eight months of incarceration is a relatively substantial period), aff’d, No. 15-4088, 2016 WL 8716339 (E.D. Pa. Dec. 2, 2016).  Nor has Petitioner shown any error in the ALJ’s conclusion that “Petitioner did not assert or prove that any of the mitigating factors listed in the regulations are present in this case.”  ALJ Decision at 12.

We must affirm the ALJ Decision if it is supported by substantial evidence and free of legal error, and we hold that it is.  See 42 C.F.R. § 1005.21(h).  “The purpose of section 1128 is to protect federal health care programs and the programs’ beneficiaries and recipients from untrustworthy” health care suppliers.  See Susan Malady, R.N., DAB No. 1816, at 9 (2002).  A supplier who “has been convicted of a crime described in section 1128(a) is presumed by Congress to be untrustworthy and a threat to federal health care programs and their beneficiaries and recipients.”  See id.  Petitioner was convicted of unlawfully distributing controlled substances (including a dangerous and addictive Schedule II drug, Norco/Vicodin) to his patient T.S., not for a legitimate medical purpose but in return for sexual favors, which is an act that shows untrustworthiness posing a threat to Medicare beneficiaries.  See I.G. Ex. 3, at 2-3, 6-7 (relevant counts of Superseding Indictment); I.G. Ex. 8, at 1 (listing counts on which Petitioner was found guilty); DEA, Drug Scheduling (July 10, 2018), (last visited Apr. 15, 2025), https://www.dea.gov/drug-information/drug-scheduling (“Schedule II drugs, substances, or chemicals are defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence.  These drugs are also considered dangerous.”).  We see no error in the ALJ’s determination that Petitioner’s seven-year exclusion “is fully supported by the record and serves the remedial purpose of protecting Medicare program beneficiaries.”  ALJ Decision at 14; see id. at 12 (citing Malady at 4).  The ALJ Decision is not cursory or baseless, as Petitioner claims, but instead is thorough and well supported, including in its handling of Petitioner’s collateral attacks upon his conviction, which we discuss further below.

III.      Petitioner’s arguments are impermissible collateral attacks on his criminal conviction.

Petitioner argues that the “fundamental flaw” of the ALJ Decision is its “failure to acknowledge and address the threshold issue of mootness and dismissal.”  NA at 6.  Petitioner asserts that by regulation “an exclusion action may only be based on a valid conviction” and here “the underlying conviction has been dismissed, rendering the basis for exclusion moot.”  NA at 64.  Petitioner asserts that the criminal case “is, in reality, moot and dismissed on 2/7/2020,” the date of his District Court sentencing hearing when “the original indictment [was] completely dismissed.”  Id. at 5, 8; see also id. at 20-28 (developing same argument).  Petitioner argues that “dismissal of the original indictment, which encompassed the 14 counts of guilt later reiterated in the superseding indictment, effectively rendered the superseding indictment’s corresponding 14 counts null and

Page 10

void.”  NA at 24; see also id. at 25 (“In this context, the dismissal of the original indictment operates as a functional equivalent to a dismissal with prejudice of the superseding indictment’s corresponding counts . . . .”).  Petitioner also claims mootness based on:  other District Court rulings, NA at 8-16, 28-30, 37-43; Third Circuit rulings, id. at 17-18, 30-37; judicial case processing “under a wrong Social Security Number,” id. at 18, and Petitioner’s allegedly “clear background” report, id. at 41.  Petitioner claims “[t]he ALJ erroneously characterized [his] representation as a collateral attack.”  Id. at 64; see P. Reply at 15 (arguing that “it is crystal clear that the issues of mootness and . . . dismissal cannot be deemed ‘collateral attacks’ under any interpretation”).

“In Federal courts, Article III mootness arises from the ‘case and controversy’ requirement of Article III of the U.S. Constitution,” and “[a]s such, the doctrine is not directly applicable to administrative proceedings as a bar to adjudicating the merits of a case.”  Yakima Valley Sch., DAB No. 2422, at 7 (2011).  While “an administrative adjudicatory body may, in appropriate circumstances, dismiss as moot a case that can no longer be meaningfully adjudicated,” that is not the situation here.  See id.  The Board can meaningfully adjudicate this case by granting or denying Petitioner’s requests to “overturn the [ALJ] Decision” and “dismiss” the exclusion.  See NA at 1.

Petitioner’s arguments that the underlying criminal conviction is dismissed and moot due to rulings by the District Court are incorrect.  A jury found Petitioner guilty on 14 counts of the Superseding Indictment; the District Court convicted and sentenced Petitioner on those 14 counts and dismissed certain other counts, including all counts in the original Indictment.  I.G. Ex. 7; I.G. Ex. 8, at 1; P. Ex. 2, at 3-5, 20-21.  Dismissal of all counts of the original Indictment had no effect on the validity of Petitioner’s conviction because, as Petitioner acknowledges, the Superseding Indictment functionally replaced the original one.  See NA at 22 (acknowledging that the “trial proceeded with the superseding indictment since [it] now became procedurally [the] replacement to the original indictment”).  Nor did any other ruling by the District Court moot or nullify Petitioner’s conviction, either expressly or implicitly; instead, the Court clearly and repeatedly denied Petitioner’s motions for acquittal.  I.G. Ex. 9, at 1, 4; I.G. Ex. 10, at 8, 43; P. Ex. 2, at 19, 21.  The Court rejected Petitioner’s arguments as “irrelevant given the law and the jury’s finding” and, to a large extent, “completely inconsistent with the trial record in this case.”  I.G. Ex. 10, at 43.  The ALJ did not err in determining that “Petitioner misunderstands the actions of the District Court,” which “did not dismiss the criminal charges against him as moot but rather held a jury trial” that resulted in a guilty verdict and Petitioner’s conviction on 14 counts of the Superseding Indictment.  ALJ Decision at 5-6, 15.  The ALJ also reasonably rejected Petitioner’s “misread[ing]” of the October 23, 2024 District Court order dismissing “the Probation Officer’s petition for an arrest warrant for Petitioner,” which had “no effect on whether Petitioner was convicted of offenses that require exclusion.”  Id. at 18-19. 

Page 11

We also see no error in the ALJ’s rejection of Petitioner’s arguments concerning his post-conviction federal litigation and state administrative proceedings.  We agree that “clear documentation show[s] that Petitioner lost his § 2255 action” and his contrary interpretation “is not correct.”  Id. at 18.  The ALJ also reasonably assigned no significance to a May 6, 2024 order by an ALJ with the Pennsylvania Department of Human Services Bureau of Hearings and Appeals (State Appeals Bureau), which “stated nothing about the merits of Petitioner’s criminal conviction.”⁵  Id. at 18-19; see P. Ex. 16 (State Appeals Bureau Order).

Nor did the ALJ err by rejecting Petitioner’s arguments concerning his Social Security number.  Despite Petitioner’s claim that “the conviction and sentencing the IG counsel represented is conviction for someone else,” the ALJ rationally found “that Petitioner was in fact the individual who was charged and convicted of the offenses in the Superseding Indictment.”  Informal Br. of P. at 50; ALJ Decision at 18.  In denying Petitioner’s motion for acquittal, the District Court similarly did not “believe that any miscarriage of justice has occurred” or, “based upon [the court’s] own review of the evidence, that an innocent person has been convicted.”  P. Ex. 2, at 19.  When the District Court gave Petitioner a further chance at sentencing to clear up the claimed Social Security number discrepancy (and thus any allegation of mistaken identity), Petitioner declined.  ALJ Decision at 16-18; I.G. Ex. 10, at 12.  Even assuming such a discrepancy existed, Petitioner shows no error in the ALJ’s conclusion that “[a] typographical error in Petitioner’s SSN on the court’s paperwork does not prove that Petitioner was never convicted of a crime.”  ALJ Decision at 18.  Petitioner quotes an alleged holding from United States v. Martinez, 253 F.3d 251, 254 (6th Cir. 2001), that “a defendant’s identity is an essential element of the indictment,” but Martinez contains no such statement.  See P. Reply at 9.  Petitioner cites a regulation – “42 CFR § 1001.1005” – for the proposition that “accurate identification is essential to ensuring the integrity of the proceedings,” but that regulation does not exist.  Id. at 8-9.

There also is no factual or legal error in the ALJ’s conclusion that “results of a background check made by a private company do not prove that Petitioner was not convicted of a crime.”  ALJ Decision at 15.  Such background checks, like other consumer reports, are not infallible.  See 15 U.S.C. § 1681a(d) (defining “Consumer report”); id. § 1681e(b) (“Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”) (emphasis added); id. § 1681i (providing procedure in case of disputed accuracy of information).

Page 12

Most importantly, the ALJ correctly recognized that all of Petitioner’s arguments constitute impermissible collateral attacks under 42 C.F.R. § 1001.2007(d).  That regulation’s purpose “is to prevent excluded individuals from relitigating the validity of their convictions.”  Joanne Fletcher Cash, DAB No. 1725, at 6 (2000); accord Yolanda Hamilton, M.D., DAB No. 3061, at 9 (2022).  Petitioner received clear and timely notice that the ALJ had “no authority to decide whether the criminal case against [Petitioner] was properly conducted or whether the evidence in that case should have resulted in conviction.”  Am. Order Following Prehearing Conference & Setting Schedule for Prehearing Submissions at 3 (citing 42 C.F.R. § 1001.2007(d)); see also ALJ Decision at 2.  The ALJ’s conclusion that Petitioner has asserted impermissible collateral attacks on his conviction is consistent with abundant Board precedent.  See, e.g., Janice Cassandra Wrenn, DAB No. 3118, at 15 (2023); Yohannes Tinsae, DAB No. 3084, at 2 (2023); Anthony Joseph Moschetto, D.O., DAB No. 3030, at 12 (2021); Valentine Okonkwo, DAB No. 2832, at 4 (2017); Marvin L. Gibbs, Jr., M.D., DAB No. 2279, at 9 (2009).

Although Petitioner insists his “challenges to the IG’s exclusion decision are not collateral attacks” and he is “not seeking to relitigate the nonexistent conviction, but rather [is] challenging the very jurisdiction of the tribunal to adjudicate this matter,” characterizing collateral attacks as jurisdictional does not change their nature.  See NA at 5, P. Reply at 16.  Collaterally attacking a conviction is impermissible “either on substantive or procedural grounds.”  42 C.F.R. § 1001.2007(d) (emphasis added).  Arguments that a “criminal conviction was invalid or void and, consequently, the ALJ did not have jurisdiction to review and affirm Petitioner’s exclusion” do “amount to collateral attacks on the conviction that formed the basis of Petitioner’s exclusion, which the ALJ and the Board are expressly barred from considering.”  Rosa Velia Serrano, DAB Ruling No. 2019-2, at 4 (Apr. 25, 2019) (citing section 1001.2007(d)).  Petitioners who “seek reversal of their exclusions based on what they perceive as deficiencies in the convictions” are making impermissible collateral attacks – period.  Michael D. Miran, Esta Miran, & Michael D. Miran, Ph.D. Psych. P.C., DAB No. 2469, at 4 (2012).

Moreover, Petitioner’s collateral attacks are substantive, not merely jurisdictional or procedural, because they are inseparable from his claims of innocence.  See NA at 12 (“With this incontrovertible proof of the case’s mootness, I’m confidently asserting my innocence. . . .”), 35 (asserting “the unshakeable knowledge that I am, in fact, innocent”), 58 (claiming “wrongful conviction”).  Such “arguments that the jury wrongly convicted” a petitioner and that “the evidence does not support the convictions” are “clear examples of collateral attacks on the convictions that the regulation forbids.”  Wrenn at 9.

The ALJ and the Board do not determine Petitioner’s criminal innocence or guilt; we determine only whether the ALJ’s upholding of Petitioner’s seven-year exclusion by the I.G. was factually supported and free of legal error, and we hold that it was.

Page 13

IV.       Petitioner’s claims of bias by the ALJ are baseless.

We also reject Petitioner’s argument that the ALJ Decision “is tainted by unlawful and biased considerations, which undermined the integrity of the proceedings.”  NA at 64.  “[I]t is not evidence of bias that the ALJ’s view of the record was not in accordance with a petitioner’s views.”  Zahid Imran, M.D., DAB No. 2680, at 14 (2016); see also Adel A. Kallini, MD, DAB No. 3021, at 17 (2020) (“The Board has long held that charges of bias or prejudice on the part of an ALJ require more than disagreement with the ALJ’s legal reasoning or factual findings.”); Sonoma Prosthetic Eyes, DAB No. 2622, at 6 n.7 (2015) (rejecting claim of bias made “with no foundation”), aff’d sub nom. Hindley v. Dep’t of Health & Hum. Servs., No. 15-cv-01973, 2017 WL 1398257 (N.D. Cal. Apr. 19, 2017).  To be objectionable, alleged bias must stem from an extrajudicial source (outside the record), and we reject a petitioner’s charge of ALJ bias where, as here, the ALJ decision relies on “information the ALJ learned from the record” rather than any extrajudicial source.  See Imran at 14-15.  “An ALJ’s actions additionally do not demonstrate bias where, like the ALJ’s refusal here to consider Petitioner’s assertions about his criminal case, they are compelled by regulation and do not entail any exercise of discretion by the ALJ.”  Clemenceau Theophilus Acquaye, DAB No. 2745, at 8 (2016).

V.        The Board cannot consider arguments not raised before the ALJ, and Petitioner’s newly submitted evidence does not warrant remand to the ALJ. 

To the extent Petitioner’s lengthy briefing raises any other arguments, the Board rejects them as either further collateral attacks on his conviction, unpreserved for appellate review, or both.  The Board “will not consider . . . any issue in the briefs that could have been raised before the ALJ but was not.”  42 C.F.R. § 1005.21(e).  See, e.g., Sonny Austin Ramdeo, DAB No. 3152, at 1 (2024) (rejecting “statutory and equitable arguments” not raised before the ALJ and therefore “not properly before the Board”); Salman Ali, DPT & Roohi Ali, DPT, DAB No. 3048, at 13 (2021) (rejecting “new argument that was not raised before the ALJ”), aff’d, 2022 WL 3130227 (E.D. Mich. Aug. 4, 2022).

We also will not admit into evidence numerous documents that Petitioner submits for the first time before the Board or remand this case to the ALJ for consideration of those documents.  The Board generally decides I.G. exclusion appeals based solely on the record developed before the ALJ.  Gracia L. Mayard, M.D., DAB No. 2767, at 6 (2017).  “If any party demonstrates to the satisfaction of the [Board] that additional evidence” is relevant and material and there were reasonable grounds for not presenting it before the ALJ, the Board may remand the case to the ALJ to consider that additional evidence.  42 C.F.R. § 1005.21(f).  “If a petitioner fails to make that required showing when proffering new exhibits on appeal, the Board may appropriately deem that evidence inadmissible and decline to remand the case.”  Waleed Khan, DAB No. 3083, at 14 (2023).  Petitioner has not made the showing required for remand for reasons explained below.

Page 14

We first address an email with a handwritten date of “1/7/2025,” an undated letter, and an undated image, all relating to Petitioner’s passport.  NA, Attach. C.  Petitioner claims “[t]he State Department’s recent issuance of the petitioner’s American passport, following a thorough background check and verification process, confirms that the petitioner has no criminal history.”  NA at 42; see also id. at 45, 48, 60, 63 (reiterating argument).  However, these documents show only that Petitioner was issued a passport, not whether Petitioner has a criminal conviction.⁶  Also, it is unclear whether Petitioner even disclosed his conviction in his passport application.  See NA at 39, 42 (stating Petitioner obtained the passport “based on no criminal history declaration,” and “based on my truly answer and signing under penalty of perjury that I don’t have any criminal history”).  If Petitioner “willfully and knowingly ma[de] any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another,” that is a felony.⁷  See 18 U.S.C. § 1542.  An illegally obtained passport would be immaterial on that basis alone.  Regardless, the passport documents are irrelevant because Petitioner offers them to collaterally attack the criminal conviction underlying his exclusion.

We next consider a February 21, 2025 State Appeals Bureau order that schedules a May 7, 2025 telephone hearing in Petitioner’s Medicaid preclusion appeal.  P. Reply, Attach. A.  That document is irrelevant and immaterial because, regardless of the status of those state administrative proceedings, it is federal and not state law that controls in this case.  See Henry L. Gupton, DAB No. 2058, at 8 (2007) (“In these proceedings, however, the federal definition of ‘conviction’ must apply to the question of whether a statutory basis of exclusion exists.”), aff’d, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).  The administrative order also is irrelevant and immaterial because the I.G. did not rely upon the state Medicaid preclusion decision as a basis for Petitioner’s exclusion or as an aggravating factor.

Petitioner’s next piece of proposed new evidence, a December 30, 2022 letter from the I.G. to the Bureau of Program Integrity, Pennsylvania Department of Public Welfare, is inadmissible on different grounds.  See Attach. B to P. Reply.  We need not assess this letter’s materiality or relevance because Petitioner has not demonstrated “that there were

Page 15

reasonable grounds for the failure to adduce such evidence” before the ALJ.  See 42 C.F.R. § 1005.21(f).  The letter predates Petitioner’s August 20, 2024 request for an ALJ hearing by over 19 months and the ALJ Decision by over 24 months.  Petitioner has not shown that it was impossible or even difficult to obtain this evidence and present it to the ALJ during those months; therefore, there is no basis to remand the case now.  See Letatia Norris, DAB No. 3135, at 8 (2024) (refusing to consider newly submitted evidence that “existed during the ALJ proceedings”); William Frank Elder-Quintana, DAB No. 3082, at 12 (2023) (holding petitioner had not demonstrated reasonable grounds for not presenting evidence to ALJ when Petitioner did “not, for example, claim that the evidence was unavailable, or could not have been obtained with reasonable effort, when the ALJ case was pending”).

Petitioner’s proposed new evidence concerning the state medical licensure proceedings is immaterial and irrelevant.  See P. New Evid. Mot., Attach. A (February 19, 2025 letter and Final Order of State Medical Board denying petition for reinstatement); id., Attach. B (Petitioner’s March 4, 2025 review request to Commonwealth Court of Pennsylvania); id., Attach. C (March 10, 2025 Notice to Petitioner and transmittal envelope from Commonwealth Court of Pennsylvania); id., Attachs. D, F (March 14 and 17, 2025 email correspondence between Petitioner and Pennsylvania Governor’s Office of General Counsel); id., Attach. E (March 17, 2025 letter and Order Vacating Final Order and Delegating Case to hearing examiner).  These documents would prove at most that Petitioner’s efforts to regain his medical license are ongoing.  That is an irrelevant consideration because, as the ALJ recognized, the I.G. based Petitioner’s exclusion on his criminal conviction, not his medical license suspension.  ALJ Decision at 11.  The status of Petitioner’s license suspension also is irrelevant to the exclusion’s length because, as the ALJ explained, “[e]ven if the Board of Medicine were to void the original suspension,” the other aggravating factor, “Petitioner’s incarceration, is sufficient to justify the seven-year exclusion.”  Id.  Moreover, regardless of whether Petitioner’s medical license ever is reinstated, the aggravating factor in 42 C.F.R. § 1001.102(b)(9) still would apply because Petitioner still would have been the subject of an adverse state agency action based on the same circumstances (that is, his felony conviction) that led to his exclusion.

Finally, Petitioner presents a March 14, 2025 Third Circuit Order denying four motions he filed on June 28 and July 18, 2024, together with Third Circuit docket pages.  P. New Evid. Mot., Attach. G.  These documents are immaterial and irrelevant because they document the federal appellate court’s denial of Petitioner’s motions for compelled disclosure of sealed or confidential material and for clarification and enforcement of prior rulings against him.  Even if a collateral attack on Petitioner’s conviction were permissible (it is not), none of these rulings affects or alters that conviction in any way.

Page 16

For the foregoing reasons, we retain the documents identified above in the administrative record but they are not admitted as evidence and they do not warrant a remand.  Petitioner’s Motion for Leave to File New Evidence/Information is denied.

Conclusion

We affirm the ALJ Decision.  Petitioner is excluded from participation in all federal health care programs for a minimum period of seven years, effective 20 days from the date of the I.G.’s December 30, 2022 notice.

Endnotes

¹  This section draws from the record to provide context but does not replace or modify the ALJ’s findings.

²  Counts 53 and 54 charged Petitioner with violating 18 U.S.C. §§ 2 and 1347 from 2014 to 2017 by unlawfully prescribing Schedule II and IV narcotics “knowing that many of these prescriptions would result in claims” to two health plans.  I.G. Ex. 3, at 8-11.  Count 55 charged Petitioner with violating 18 U.S.C. § 1512(b)(2)(B) in December 2017 by trying to persuade B.S. to delete “cell phone text messages of a sexual relationship in an effort to thwart” the investigation and official proceedings.  Id. at 12.  Count 56 charged Petitioner with violating 18 U.S.C. § 1001(a)(2) in December 2017 by falsely representing, in a matter within executive branch jurisdiction, that “he did not have a sexual relationship with any of his patients other than” T.S. despite knowing that “he had a sexual relationship with” B.S. also.  Id. at 13.

³  “Two federal statutes, 28 U.S.C. §§ 2241 & 2255, confer federal jurisdiction over habeas petitions filed by federal inmates.”  Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012), cert. denied, 568 U.S. 1077 (2012).  “Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution.”  Okereke v. United States, 307 F.3d 117, 120 (3d Cir.), cert. denied, 537 U.S. 1038 (2002).

⁴  Petitioner requested leave, which the Board granted, to file a brief exceeding the standard length limit of 40 double-spaced pages.  Jan. 28, 2025 Acknowledgment of Appeal & Order Granting Mot. to Exceed Page Limit; see Guidelines – Appellate Review of Decisions of Administrative Law Judges in Cases to Which Procedures in 42 C.F.R. Part 1005 Apply (Guidelines), available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/procedures/index.html?language=en.  Citations to the NA are to the 83-page PDF containing Petitioner’s appeal notice, brief, and attachments, not to internal pagination in any of those documents.

⁵  The May 6, 2024 order related to Petitioner’s administrative appeal from a decision by the Pennsylvania Department of Human Services precluding him from participation in the Medicaid program.  See ALJ Decision at 19; P. Ex. 15, at 1; P. Ex. 17, at 1.  The order stayed Petitioner’s appeal before the State Appeals Bureau for 180 days to permit resolution of his then-pending proceedings before the Third Circuit.  P. Ex. 16.

⁶  Petitioner identifies no statute that renders his particular felony conviction disqualifying for a passport.  Petitioner cites to 22 U.S.C. § 2705, NA at 42, but that statute is irrelevant.  It states in part that a valid United States passport issued for “the maximum period authorized by law” shall “have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction.”  Id. § 2705(1).  The statute makes no mention of criminal convictions.

⁷  “We note that Petitioner’s sentence included a three-year period of supervised release with mandatory conditions and terms including that Petitioner, while on supervised release, “must not commit another federal, state, or local crime.”  I.G. Ex. 8, at 4 (emphasis added); see also id. at 6 (“While [Petitioner] is on supervised release pursuant to this Judgment, he shall not commit another federal state or local crime. . . .”) (emphasis added).  Petitioner states that “1/7/2025 . . . was the date of the State[] Department issuing my American Passport Approval” and that his supervised release “officially terminated on 3/9/2025.”  NA at 63; P. New Evid. Mot. at 8; see also P. Ex. 37, at 1 (stating “Expiration Date” of supervised release as “March 9, 2025); P. Ex. 40, at 1 (same).