           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jehan Zeb Mir, M.D.,                     :
                         Petitioner      :
                                         :
            v.                           :   No. 2557 C.D. 2015
                                         :   Submitted: July 8, 2016
Bureau of Professional and               :
Occupational Affairs, State Board        :
of Medicine,                             :
                         Respondent      :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: October 31, 2016

            Petitioner Jehan Zeb Mir, M.D. (Mir), pro se, petitions for review of
an order of the Bureau of Professional and Occupational Affairs, State Board of
Medicine (Board). The Board adopted the decision of Hearing Examiner Suzanne
Rauer (Hearing Examiner), who recommended that the Board revoke Mir’s license
to practice medicine and surgery as a matter of reciprocal discipline, based on
similar revocations by the medical licensing authorities in the States of California
and New York. Mir raises many issues on appeal. For the reasons set forth below,
we affirm the Board’s order.
                               I. BACKGROUND
            According to the Hearing Examiner’s unchallenged findings of fact,
which the Board adopted, Mir has been licensed to practice medicine in the
Commonwealth of Pennsylvania since April 29, 1974. He has also held medical
licenses in New York and California. On October 27, 2010, the Medical Board of
California (MBC), on remand, imposed discipline on Mir in the form of a
revocation of his license to practice medicine. The MBC, however, stayed that
revocation in favor of placing Mir on probation, subject to terms and conditions,
for a period of five years.
               On or about November 3, 2011, the Executive Director of the MBC
filed a Petition to Revoke Probation (Revocation Petition), claiming that Mir failed
to meet the terms and conditions of his probation. Thereafter, and citing the filing
of the MBC Revocation Petition (Reproduced Record (R.R.) 8), the Board
commenced the instant administrative action against Mir upon an Order to Show
Cause (OSC) filed on April 16, 2012. The Board sought to impose reciprocal
discipline on Mir in Pennsylvania based on the discipline imposed by the MBC in
California and pursuant to Section 41(4) of the Medical Practice Act (Act), 1 which
provides, in relevant part:
                      The board shall have authority to impose
               disciplinary or corrective measures on a board-regulated
               practitioner for any or all of the following reasons:
                             ...
                             (4) Having a license or other authorization
                      to practice the profession revoked or suspended or
                      having other disciplinary action taken, or an
                      application for a license or other authorization
                      refused, revoked or suspended by a proper
                      licensing authority of another state, territory,
                      possession or country, or a branch of the Federal
                      Government.



      1
          Act of December 20, 1985, P.L. 457, as amended, 63 P.S. § 422.41(4).



                                               2
In a decision dated July 17, 2012, but effective August 16, 2012, the MBC issued a
default decision on the Revocation Petition, setting aside the stay of its prior
discipline and revoking Mir’s license to practice medicine in California
(MBC Revocation Decision). (R.R. 863-78.)
                On December 27, 2012, the New York State Board of Professional
Medical Conduct (NYS Board) revoked Mir’s license to practice medicine in the
State of New York, based on the action and findings of the MBC (NYS Board
Revocation).2       Following the revocation by NYS Board, the Board filed an
Amended Order to Show Cause (AOSC) on January 15, 2013, noting the MBC
Revocation Decision and adding the NYS Board Revocation as an additional basis
to impose reciprocal discipline on Mir in Pennsylvania. (R.R. 454-561.)




      2
          New York’s reciprocal discipline statute provides, in relevant part:
                        Each of the following is professional misconduct, and any
                licensee found guilty of such misconduct under the procedures
                prescribed in section two hundred thirty of the public health law
                shall be subject to penalties as prescribed in section two hundred
                thirty-a of the public health law except that the charges may be
                dismissed in the interest of justice:
                       ...
                       9. . . .
                        (b) Having been found guilty of improper professional
                practice or professional misconduct by a duly authorized
                professional disciplinary agency of another state where the conduct
                upon which the finding was based would, if committed in New
                York state, constitute professional misconduct under the laws of
                New York state . . . .
N.Y. Educ. Law § 6530(9)(b) (McKinney 2016).



                                                 3
            The Board first noticed the OSC for a hearing on July 20, 2012, in
Harrisburg, Pennsylvania.    Mir, however, requested a continuance, which the
Board granted.      The Board next noticed the OSC for a hearing on
October 23, 2012, in Harrisburg. Mir again requested a continuance. Mir first
requested the continuance in a cover letter dated September 19, 2012, enclosing his
Motion to Set Aside and Vacate Order to Show Cause (Motion to Vacate).
(R.R. 385.) The only reason Mir gave in that letter for the requested continuance
was to allow the Board time to consider his Motion to Vacate.                  On
October 8, 2012, Mir filed with the Board a reply in support of his motion. In the
cover letter accompanying the reply, Mir again sought a continuance of the
hearing. As an additional ground for a continuance, Mir noted that he recently
commenced a lawsuit against the MBC in federal court, challenging the revocation
of his California license. (R.R. 406.) By Order dated October 24, 2012, the Board
again granted Mir a continuance. In doing so, however, the Board noted:
            [Mir’s] challenge to the [MBC’s] action [in federal court]
            is not, however, a basis for further continuances in this
            matter, in that [Mir] has adequate administrative
            remedies in the event his appeal is successful.
(R.R. 443.) The Board rescheduled the hearing on the OSC for January 14, 2013.
Again, Mir sought a continuance, this time with the concurrence of the prosecuting
attorney. (R.R. 448.) On January 3, 2013, the Board granted the continuance.
(R.R. 448.) In summary, Mir sought and received three continuances from the
Board with respect to a hearing and adjudication of the OSC.
            As noted above, following the third continuance, the Board filed the
AOSC. On January 24, 2013, the Board noticed the rescheduled hearing for
April 15, 2013, in Harrisburg. (R.R. 563.) Mir filed his response to the AOSC on
or about February 11, 2013.      On or about April 1, 2013, Mir requested a

                                        4
continuance, citing pending litigation against the MBC and other related matters.
(R.R. 583-84.) Again, the Board granted the request for a continuance, citing
Mir’s federal lawsuit against the MBC and Mir’s California residency as part of its
consideration. (R.R. 586.) The Board rescheduled the hearing for July 15, 2013,
and, again, Mir requested a continuance, citing pending federal litigation against
the MBC. (R.R. 588-91.) This time, however, the prosecuting attorney filed a
reply in opposition to the continuance request. (R.R. 593-613.) Therein, the
prosecuting attorney informed the Board that the United States District Court for
the Southern District of California (District Court) issued an opinion and order on
May 8, 2013, dismissing Mir’s lawsuit against the MBC (and others).             The
prosecuting attorney attached a copy of the District Court’s opinion and order to
the filing.
              In an order dated Friday, July 12, 2013, the Board denied Mir’s
request for a continuance, citing the dismissal of the federal lawsuit and the
absence of any good cause shown by Mir for the continuance. (R.R. 615.) The
Board convened the hearing on Monday, July 15, 2013. Mir was not in attendance.
At the beginning of the hearing, the Hearing Examiner noted for the record that she
attempted to transmit the order denying the continuance to Mir on Friday by fax.
When that effort failed, she transmitted the order by email, using the email address
on file for Mir. The Hearing Examiner noted that she received an email response
from Mir, in which Mir again cited to various pending federal lawsuits in
California and New York involving his license suspensions in those states. The
prosecuting attorney responded by noting that none of the federal lawsuits have led
to an order restoring Mir’s license to practice in either jurisdiction. He also
informed the court that two of the federal lawsuits—one in California and one in


                                         5
New York—were dismissed. The prosecuting attorney did, however, agree with
the portion of Mir’s email, in which Mir noted that he does not currently practice
in Pennsylvania and, instead, resides in California. On this basis, the prosecuting
attorney agreed on the record to another continuance:
               However, I would ask for this hearing to be reconvened
               in a short period of time, because he’s been revoked in
               two states. He has an active license to practice Medicine
               here in Pennsylvania, and the Commonwealth is
               concerned that he’s going to move to Pennsylvania and
               practice medicine. So, for that reason, if another
               continuance is granted – if a fifth continuance is granted,
               I would ask for a short turnaround for this hearing to be
               reconvened within the next six to eight weeks if possible.
(R.R. 626.)3 After discussing further with the prosecuting attorney the effect any
pending federal litigation should have on the proceedings, the Hearing Examiner
indicated that she would grant Mir another continuance of six to eight weeks and
would advise Mir that this would be the last continuance in the case. (R.R. 628.)
Thereafter, the Hearing Examiner issued an order, vacating her prior order denying
the continuance and granting Mir’s continuance request. The order provided:
“NO       FURTHER         CONTINUANCES            WILL      BE     GRANTED        TO
RESPONDENT.” (R.R. 618 (emphasis in original).) The Board rescheduled the
hearing for September 5, 2013.
               On or about August 8, 2013, Mir filed a motion, seeking the
disqualification of the Hearing Examiner and removal of the hearing from the
Board’s calendar. On August 23, 2013, Mir wrote to the Board, again requesting a
continuance.       This time, he noted that a hearing was scheduled for

      3
        According to the MBC’s Revocation Decision, on or about November 22, 2011, Mir
informed the MBC by letter that he intended to move to Pennsylvania. (R.R. 864.)



                                           6
September 9, 2013, in one of his federal lawsuits against the MBC, creating a
conflict with the scheduled September 5th hearing in Pennsylvania. (R.R. 711.) By
separate orders dated August 26, 2013, the Hearing Examiner denied Mir’s motion
for disqualification and request to remove the hearing from the Board’s calendar,
but granted Mir’s later letter motion for a continuance of the September 5, 2013
hearing.      Again,   the     Hearing     Examiner   noted:   “NO    FURTHER
CONTINUANCES WILL BE GRANTED TO RESPONDENT.” (R.R. 793
(emphasis in original).) The Board rescheduled the hearing for November 15,
2013.
              By letter dated November 1, 2013, Mir sought a 90-day continuance,
citing again pending federal litigation against the MBC. (R.R. 797-98.) Again,
and despite warning Mir otherwise, the Hearing Examiner granted Mir the
requested continuance.       (R.R. 800.)    The Board rescheduled the hearing for
February 18, 2014, in Harrisburg. Again, Mir sought a continuance. In addition to
pointing to his pending federal litigation against the MBC, Mir added that he was
scheduled to appear for jury duty starting February 18, 2014. (R.R. 804-07.) The
Hearing Examiner granted the continuance, and the Board rescheduled the hearing
for May 12, 2014, in Harrisburg.
              By letter dated April 24, 2014, Mir again sought a continuance from
the Board on account of a scheduling conflict with pending federal litigation in
California against the MBC. On May 1, 2014, the Hearing Examiner denied the
request for continuance, noting: “NO FURTHER CONTINUANCES WILL BE
GRANTED TO RESPONDENT IN THIS MATTER.” (R.R. 793 (emphasis in
original).)




                                            7
              On May 2, 2014, Mir wrote to the Board, again requesting a
continuance, but this time indicating that he was (again) attached for jury duty
starting May 5, 2014. (R.R. 844-45.) By letter dated May 9, 2014, Mir again
wrote to the Board, seeking a continuance based on his pending federal litigation in
California. Mir also indicated that on May 8, 2014 (two business days before the
rescheduled hearing), he retained an expert witness to testify on his behalf before
the Board and that the expert required time to review the record and prepare for the
hearing. Mir requested:
              I respectfully request that Prothonotary call me ahead of
              time for any future dates for hearings in order to assure
              availability of the witnesses and to prevent any conflict
              with any of my future court dates. That such a date
              should not be before 120 days, in order to allow time for
              witnesses to prepare.
(R.R. 848.)       The Board did not formally act on these last two requests for
continuances. Instead, on May 12, 2014, the Board convened the rescheduled
hearing. The Hearing Examiner noted the absence of Mir. She acknowledged the
Board’s receipt of his two requests for continuances on May 2 and May 9, 2014.
Nonetheless, the Hearing Examiner pointed to her May 1, 2014 order denying
Mir’s request for a continuance, particularly the portion of the order indicating that
no further continuances would be provided. The Hearing Examiner proceeded
with the hearing.
              In support of the AOSC, the prosecuting attorney offered the
following exhibits for admission into the record:
                     Ex. C-1: Certified copy of the July 2012 default decision of the
                      MBC, revoking Mir’s license to practice in California;




                                           8
                     Ex. C-2: Certified copy of the December 2012 determination
                      and order issued by the NYS Board, revoking Mir’s license to
                      practice in New York.
The Hearing Examiner admitted both exhibits, and the prosecuting attorney rested.
The Hearing Examiner’s adjudication and order, revoking Mir’s license to practice
medicine in the Commonwealth as a matter of reciprocal discipline, followed. Mir
requested reconsideration, which the Board denied. Mir challenged the Hearing
Examiner’s decision with the Board.                Ultimately, the Board rejected Mir’s
arguments and adopted the Hearing Examiner’s adjudication and order.
                                     II. DISCUSSION
              In his petition for review from the Board’s final adjudication and
order,4 Mir raises the following issues, which we renumber and rephrase for
clarity: (1) the Hearing Examiner’s refusal to grant Mir a continuance of the
May 12, 2014 rescheduled hearing violated his procedural due process rights under
the Fourteenth Amendment to the United States Constitution, because, he claims,
he established good cause for the grant of an additional continuance; (2) the
Board’s revocation of his license was improper under collateral estoppel principles
or under the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution; (3) the MBC’s revocation of Mir’s license to practice medicine in
California is insufficient as a matter of law to support revocation of his
Pennsylvania license; (4) there are mitigating factors that weigh against revocation


       4
         Our review is limited to considering whether the Board erred as a matter of law or
violated Mir’s constitutional rights, and whether all necessary factual findings are supported by
substantial evidence. 2 Pa. C.S. § 704.



                                               9
in this case; (5) Section 41(4) of the Act is unconstitutional; and (6) the Hearing
Examiner abused her discretion in refusing to recuse herself.
                   A. Denial of Request(s) for Continuance of
                      May 12, 2014 Rescheduled Hearing
             Mir argues that the Hearing Examiner abused her discretion and/or
violated his due process right under the Fourteenth Amendment to the United
States Constitution when she denied his requests on May 2 and May 9, 2014, for a
continuance of the May 12, 2014 rescheduled hearing. Mir argues that he provided
“good cause” for the continuance and that, under the circumstances, the Hearing
Examiner should not have entered a “default judgement” against him. He claims
to have meritorious defenses to the AOSC.         Mir complains that the Hearing
Examiner should have granted his last continuance requests based on the pending
federal litigation in California because she had previously granted him several
continuances on the same grounds. Mir cites Khan v. State Board of Auctioneer
Examiners, 842 A.2d 936 (Pa. 2004), in support. Mir also complains that the
Hearing Examiner failed to consider his request(s) based on his jury duty summons
and his need for extra time to prepare his expert witness.
             In response, the Board notes that the Hearing Examiner granted eight
continuances to Mir. Mir, therefore, received nine 9 separate hearing notices and
9 opportunities to be heard on the OSC and AOSC over a two-year period. The
Board notes that in several of the continuances, the Board deferred to Mir’s other
commitments in California. It was under no obligation to do so a ninth time, and
Mir does not explain why he could not have asked to reschedule his California
commitments in deference to the Board hearing. Moreover, the Board notes that
Mir could have asked to participate in hearing by telephone; he did not. He also
could have retained an attorney to appear on his behalf; he did not. Under the

                                         10
circumstances, the Board contends that Mir was afforded all of the process he was
due and that the Hearing Examiner did not abuse her discretion in denying his
ninth request for a continuance. The Board also pushes back on Mir’s claim that
the Board entered a judgment against him by “default.”
              We have observed that, in administrative proceedings generally,
“[t]he power to grant or refuse a continuance is an inherent power of an
administrative agency which is subject to review only upon a showing of abuse of
discretion.” Capital Blue Cross v. Pennsylvania Ins. Dep’t, 937 A.2d 552, 585
(Pa. Cmwlth. 2007), appeal denied sub nom. Skarloff v. Ario, 937 A.2d 552
(Pa. 2009).   An abuse of discretion occurs in the context of a request for a
continuance when, in reaching such a decision, “the law is overridden or
misapplied or judgment exercised is manifestly unreasonable or is the result of
partiality, prejudice, bias or ill will.” Henderson v. Unemployment Comp. Bd. of
Review, 77 A.3d 699, 713 (Pa. Cmwlth. 2013).
              Having extensively reviewed the procedural history in this matter,
recounted above, we conclude that the Hearing Examiner did not abuse her
discretion when she denied Mir’s ninth (and tenth) request(s) for a continuance.
The Hearing Examiner granted several continuances in this matter in an effort to
accommodate Mir’s California residency and conflicts with other legal proceedings
in California federal courts. She was under no obligation to do so in perpetuity.
As the Board notes, Mir could have elected to have an attorney represent him at the
May 12, 2014 hearing, or he could have requested to participate by telephone.
Throughout the proceedings, the Hearing Examiner exhibited great patience and
tolerance for Mir’s repeated requests; Mir, however, gave no indication that the
proceeding before the Board was of sufficient character and significance for him to


                                        11
make an effort to appear and defend against the AOSC. Given the history of Mir’s
requests and the Hearing Examiner’s explicit warning(s) regarding any future
request for a continuance, we conclude that the Hearing Examiner did not abuse
her discretion in denying Mir’s request(s) to continue the May 12, 2014
rescheduled hearing.5
               The Pennsylvania Supreme Court’s decision in Khan does not alter
our conclusion. In Khan, the Supreme Court reviewed a decision by this Court, in
which we held that the State Board of Auctioneer Examiners (SBAE) could not, as
a matter of due process, impose reciprocal discipline based on a Virginia Consent
Order, which included neither an admission of wrongdoing nor a finding of
wrongdoing.      Khan, 842 A.2d at 942.            The SBAE had imposed reciprocal
discipline on two auctioneers following a consolidated hearing, at which neither of
the auctioneers appeared personally. At the hearing, however, the auctioneers’
lawyers challenged the lawfulness of any reciprocal discipline given the nature and
circumstances of the disciplinary actions taken against the auctioneers in the other
states.
               On appeal to the Supreme Court, the auctioneers attempted to
challenge or minimize the impact of the disciplinary actions taken against them in
the other states. They argued that the Board should have considered the merits of
the alleged violations in the other states as mitigating factors when imposing
reciprocal discipline.     The Supreme Court, however, rejected their argument,


          5
          Between July 20, 2012, the first scheduled hearing on the OSC, and the May 14, 2014
rescheduled hearing, Mir had ample opportunity to identify and prepare an expert witness to
testify on his behalf before the Board. His decision to wait until days before the rescheduled
hearing in May 2014 to do so does not constitute “good cause” for another continuance.



                                             12
holding: “The [b]oard, in a reciprocal disciplinary action, may not consider the
merits of the discipline imposed by the foreign jurisdiction, which is the
appropriate forum in which to litigate them.” Id. at 943 (emphasis added). To the
extent a licensee wishes to avoid reciprocal discipline, the Supreme Court held that
the licensee must establish any of the following: (1) that no disciplinary action
was taken in another jurisdiction; (2) that the licensee has appealed the foreign
disciplinary action and that appeal is pending; (3) that the foreign disciplinary
proceeding was ultra vires or lacked the fundamentals of due process; or (4) that
the misconduct that formed the basis of the foreign disciplinary action justifies
different treatment in the Commonwealth. Id.
             Mir contends that in Khan, the Supreme Court held that a licensing
board may not hold a hearing in a reciprocal discipline case if the foreign
disciplinary action is “on appeal, involved due process violations or was ultra
vires.” (Mir Br. at 51.) This misstates, or overstates, the Supreme Court’s decision
in Khan. The court’s holding in Khan speaks only to what issues a licensee may
raise in a reciprocal discipline case in Pennsylvania with respect to the foreign
disciplinary action. It does not preclude a Pennsylvania licensing body from
conducting a reciprocal disciplinary hearing where the licensee does, in fact, raise
those issues. To the contrary, in Khan, the SBAE held a hearing and considered
the auctioneers’ challenges to the imposition of reciprocal discipline. In the matter
now before this Court, the Hearing Examiner, therefore, did not violate the
Supreme Court’s decision in Khan when she refused to grant his request(s) for a
continuance of the May 12, 2014 rescheduled hearing, because Khan does not
preclude a Hearing Examiner from proceeding under these circumstances.




                                         13
              Like the auctioneers in Khan, Mir too could have appeared before the
Hearing Examiner on May 12, 2014—personally or through counsel—to argue that
the Board should not impose reciprocal discipline based on any one or more of the
four defenses recognized by the Supreme Court in Khan. He did not. Moreover,
we note that Mir’s collateral attacks on the MBC Revocation Decision in federal
courts are not the same as a pending appeal. In neither his brief on appeal nor his
requests for a continuance of the May 12, 2014 rescheduled hearing does Mir
contend that an appeal from the MBC Revocation Decision is pending before a
California state appellate court.
             Mir also asserts that the denial of his continuance request(s) violated
his procedural due process rights under the Fourteenth Amendment to the United
States Constitution.     Due process requires that a litigant receive adequate
notice and an opportunity to be heard.       Goetz v. Dep’t of Envtl. Resources,
613 A.2d 65, 67 (Pa. Cmwlth. 1992), appeal denied, 625 A.2d 1196 (Pa. 1993).
We agree with the Board that Mir received due process. As noted above, the
Hearing Examiner provided Mir with multiple continuances in an effort to
accommodate Mir’s other commitments in California. He received notice after
notice, opportunity to be heard after opportunity to be heard, and continuance after
continuance. He had ample notice of the May 12, 2014 rescheduled hearing, at
which he would have had yet another opportunity to be heard with respect to any
defenses to the AOSC. Mir received all of the process that he was due under the
Fourteenth Amendment.
             Finally, Mir’s characterization of the Board’s final adjudication as a
“default judgment” is incorrect.    In civil litigation in Pennsylvania, generally
speaking, a default judgment is a device by which a plaintiff may obtain a


                                        14
judgment in its favor simply based on the fact that the defendant has not filed a
response to the plaintiff’s claim. See Pa. R.C.P. No. 1037. Even if such relief
were available before the Board, the Board did not resolve this matter against Mir
by default—i.e., simply because he did not appear to defend against the charges in
the AOSC. Although Mir did not attend the hearing, the prosecuting attorney
presented his evidence in support of the AOSC and argued in favor of reciprocal
discipline. The Hearing Examiner and Board issued written decisions, including
findings of facts and conclusions of law, based on the law and the evidence
presented at the hearing. This was a merits decision, not a judgment by default.
                   B. Collateral Estoppel and Double Jeopardy
             In 2007, after the MBC first revoked Mir’s medical license in
California, a prosecuting attorney commenced reciprocal disciplinary proceedings
before the Board against Mir with respect to his Pennsylvania license. When a
California appellate court, on Mir’s appeal from the MBC’s decision, subsequently
reversed and remanded the MBC’s decision, the prosecuting attorney withdrew the
reciprocal discipline charges against Mir before the Board.         Mir claims that
because the MBC’s 2007 revocation and 2012 revocation are based on the same
alleged misconduct by Mir, the withdrawal of the 2007 reciprocal discipline
charges against Mir in Pennsylvania precludes the filing of the OSC and AOSC on
collateral estoppel grounds or based on double jeopardy. Like the Board, we reject
Mir’s arguments.
             Collateral estoppel would only apply to preclude the Board from
re-litigating an issue or fact litigated in a prior proceeding that was necessary to a
judgment on the merits in that prior proceeding. J.S. v. Bethlehem Area Sch. Dist.,
794 A.2d 936, 939 (Pa. Cmwlth. 2002), appeal denied sub nom. J.S. ex rel. H.S. v.
Bethlehem Area Sch. Dist., 818 A.2d 506 (Pa. 2003). In this case, although a
                                         15
prosecuting attorney had filed an earlier order to show cause based upon a prior
revocation decision of the MBC, that order to show cause was withdrawn prior to
any hearing or disposition on the merits. Consequently, collateral estoppel does
not apply.
             The Double Jeopardy Clause also does not apply. Contrary to Mir’s
assertions, the revocation at issue here does not constitute a criminal sanction to
which the prohibition of duplicative penal punishments would apply. Tandon v.
State Bd. of Med., 705 A.2d 1338, 1343 (Pa. Cmwlth. 1997), appeal
denied, 727 A.2d 134 (Pa. 1998). Moreover, this Court has held that disciplinary
action that a professional board takes to protect the public serves as a deterrent
rather than punitive purpose and, therefore, does not violate the constitutional
prohibition against double jeopardy. Blair v. Bureau of Prof’l and Occupational
Affairs, State Bd. of Nursing, 72 A.3d 742, 750 (Pa. Cmwlth. 2013).
                          C. Sufficiency of Evidence
             Mir makes several challenges to the Board’s decision, which we will
address collectively as challenges to the sufficiency of evidence to support the
Board’s imposition of reciprocal discipline in this case.       He raises several
challenges to the merits of the MBC’s Revocation Decision, including the
sufficiency of the evidence to support the MBC’s decision. He contends that the
MBC acted unlawfully and did not follow proper procedures. Under Khan, we will
not consider any of Mir’s challenges to the merits of the MBC’s decision.
Moreover, as noted above, Mir did not appear before the Hearing Examiner in this
matter and present evidence or argument to support his claims that the MBC acted
unlawfully or violated his due process rights. Assuming, arguendo, that such
evidence is unnecessary, neither Mir’s brief nor reply brief provide a clear and


                                        16
cogent legal analysis in support of the claims. We, therefore, reject them for
failure to develop the record and/or for failure to adequately brief them on appeal.
See In re Condemnation of Land For the S.E. Cent. Bus. Dist. Redevelopment
Area #1, 946 A.2d 1154, 1156 (Pa. Cmwlth.), appeal denied, 968 A.2d 233
(Pa. 2008), cert. denied, 556 U.S. 1208 (2009).
             The prosecuting attorney, on the other hand, met his burden before the
Board. It is undisputed that both the State of New York and the State of California
have revoked Mir’s licenses to practice medicine.       Section 41(4) of the Act
authorizes the Board to act solely on the fact that Mir was disciplined by a medical
board in another jurisdiction. See Tandon, 705 A.2d at 1345. There is, therefore,
substantial record evidence to support the Board’s imposition of reciprocal
discipline in this matter against Mir.
             Mir also contends that the misconduct that formed the basis of the
MBC Revocation Decision is too remote in time to support the imposition of
reciprocal discipline in Pennsylvania. Mir cites this Court’s decision in DeMarco
v. State Board of Medicine, 408 A.2d 572 (Pa. Cmwlth. 1979), in support. The
Board responds that the prosecuting attorney filed the OSC and AOSC, seeking
imposition of reciprocal discipline, within a reasonable period of time after the
MBC and NYS Board took disciplinary action against Mir.
             In DeMarco, the sole question before the Court was whether the
Board could revoke a physician’s medical license in Pennsylvania based on
disciplinary action taken against the physician in a foreign jurisdiction before the
physician began practicing in Pennsylvania, without hearing any evidence about
the quality of the physician’s practice in Pennsylvania. DeMarco, 408 A.2d at 574.




                                         17
This Court held that it could, under the then-applicable reciprocal discipline
statute:
                    We can only view the Pennsylvania statute as
            providing in effect that, whenever a physician licensed in
            Pennsylvania has also obtained a medical license
            elsewhere, he is under a burden to remain in good
            standing in that other jurisdiction, and his failure to do
            so, at least for reasons which would warrant revocation in
            Pennsylvania, can justify withdrawal of his Pennsylvania
            license to practice
Id. The Court found no basis in the statute to draw a geographical or chronological
distinction with respect to the Board’s power to impose reciprocal discipline. In a
passage relied on by Mir, however, the Court noted:
            [A]s to the chronological point, unprofessional conduct
            or loss of professional status before commencing practice
            in Pennsylvania is clearly relevant to continued
            qualification here, except where such conduct or loss has
            been extremely remote in time, which was not the case
            here. Moreover, the conduct in question took place
            during the period that petitioner held a Pennsylvania
            license.
Id. at 575 (emphasis added).
            Recapping Mir’s discipline in California, we note that as part of his
case before the Board, the prosecuting attorney offered into evidence a certified
copy of the MBC Revocation Decision. According to that decision, the MBC first
initiated disciplinary proceedings against Mir in July 2003, when Mir was accused
of unprofessional conduct in June 2000 with respect to the diagnosis and treatment
of a single patient, Grace F. The MBC first resolved those charges against Mir in
2006, with a decision revoking Mir’s license to practice medicine. Mir appealed
that decision to the California Superior Court, which, in 2008, vacated the MBC’s
decision and remanded the matter to the MBC for reconsideration. Upon remand,


                                        18
the MBC issued its October 2010 decision, in which it imposed discipline on Mir
in the form of a revocation of his license to practice medicine, but stayed that
revocation in favor of placing Mir on a period of probation, subject to terms and
conditions, for a period of five years. When Mir failed to fulfill the terms and
conditions of his probation, upon petition filed by the MBC Executive Director in
November 2011, the MBC revoked Mir’s license to practice medicine in California
effective August 16, 2012.
             There are several reasons why DeMarco is not helpful to Mir in this
matter. Because the Court did not rule in the physician’s favor on the remoteness
question in DeMarco, the Court’s reference to “extremely remote in time” conduct
could be characterized as mere dicta. Even if it were not dicta, however, the Court
in DeMarco also noted the significant fact that the alleged misconduct by the
physician in that case occurred during the period of time that the physician was
licensed to practice in Pennsylvania, even if he had not yet done so.          Here,
similarly, the professional misconduct in California that led to Mir’s loss of his
license to practice medicine in California (and New York) occurred while Mir was
also licensed in Pennsylvania. Moreover, the MBC, acting on a complaint filed
against Mir, initiated discipline proceedings against Mir 3 years and 1 month after
the date of the alleged professional negligence. This is not an inordinate delay.
             Both the MBC and the Board in this matter initiated and attempted to
move their respective matters along in a timely fashion. Although the MBC did
not revoke Mir’s license to practice in California until August 16, 2012, the MBC
Revocation Decision had more to do with Mir’s failure to comply with the terms of
his probation than it did with the underlying act of professional negligence in 2000.
Within months after the MBC Executive Director filed papers with the MBC,


                                         19
seeking to revoke Mir’s license, the prosecuting attorney filed the OSC, seeking to
impose reciprocal discipline with respect to Mir’s Pennsylvania license. Again,
based on these facts, we do not see an inordinate delay by the Board that would
justify relief in Mir’s favor. See Tandon, 705 A.2d at 1345-46 (concluding that
action by Board to suspend physician license within one year of suspension by
other state board was not remote in time).
                                 D. Mitigating Factors
              Mir argues that mitigating circumstances support a less harsh sanction
by the Board. Specifically, Mir again notes that the single act of professional
misconduct on which the MBC based its revocation decision occurred in 2000.
He also notes that since then, he has been recertified by the American Board of
Thoracic Surgery and that he has earned hundreds of hours of continuing medical
education credit.     Mir also claims that after the MBC initially filed charges
in 2003, he practiced in California for 7 years without any other complaints. He
also notes that he maintained his license in Pennsylvania in good standing from
1974 to 2014.6
              As noted above, Mir did not appear before the Board to present
evidence supporting these allegations and argue in favor of a penalty short of
revocation.    Accordingly, he has waived any ability to challenge the Board’s
decision based on these alleged, but unproven, mitigating circumstances.




       6
          Although Mir points to this alleged unblemished record in Pennsylvania, he does not
indicate how much time during that 40-year span he actually practiced medicine in Pennsylvania.



                                              20
                   E. Constitutionality of Section 41(4) of the Act
               Mir challenges the constitutionality of Section 41(4) of the Act, both
on its face and as applied to him in this matter.7 We reject both challenges.
               This Court has consistently held that reciprocal discipline statutes,
including Section 41(4) of the Act and its predecessor, are neither unreasonable nor
arbitrary and fall within the scope of the state’s police power.                    See Tandon,
705 A.2d at 1345; Johnston v. State Bd. of Med. Educ. and Licensure,
410 A.2d 103, 105 (Pa. Cmwlth. 1980); see also Khan, 842 A.2d at 950 (“The
statutory authorization to take disciplinary action against Pennsylvania license
holders on the basis of reciprocal discipline has been repeatedly upheld by the
Commonwealth Court.”). Mir does not present a compelling case for bypassing
this precedent and holding that Section 41(4) of the Act is unconstitutional on its
face.
               In addition, we note that Mir’s constitutional challenges, both facial
and as applied, are based on the singular argument that the statute does not afford


        7
           An as-applied constitutional challenge to a statute differs from a facial constitutional
attack in that the latter asserts that a statute is unconstitutional based solely on the text of the
challenged provision, whereas the former type of constitutional challenge makes no claim that a
statute is unconstitutional as written, but that, when applied to an individual under circumstances
particular to the challenger, the provision deprives the person of a constitutional right.
Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super. 2011). Our Supreme Court has
described a facial challenge as one where a challenged statute is not valid under any
circumstances. DePaul v. Commonwealth, 969 A.2d 553, 601 (Pa. 2009). In Peake v.
Commonwealth, 132 A.3d 506 (Pa. Cmwlth. 2015), however, we referred to our Supreme
Court’s decision in Clifton v. Allegheny County, 969 A.2d 1197 (Pa. 2009), where that court
applied the “plainly legitimate sweep” standard. Under that standard, a challenger claiming
facial invalidity must demonstrate that a substantial number of potential applications have an
unconstitutional impact. Peake, 132 A.3d at 517 (citing Clifton, 969 A.2d at 1223 n.36).



                                                21
Mir the opportunity to challenge the fairness of the proceedings in the foreign
jurisdiction, which we reject. The Board clearly lacks the statutory authority to
impose reciprocal discipline without first affording notice and an opportunity to be
heard. See Section 9(a) of the Act8 (“All actions of the board shall be taken subject
to the right of notice, hearing, and adjudication, and a right of appeal therefrom.”).
As set forth above, Mir received multiple notices and had multiple opportunities to
be heard before the Board. While this proceeding was before the Hearing Office,
Mir was also clearly aware of the Pennsylvania Supreme Court’s decision in Khan
and his opportunity to appear before the Board and either (a) challenge the MBC’s
proceedings as ultra vires or lacking the fundamentals of due process; or (b) argue
that the misconduct that formed the basis of the MBC’s disciplinary action justifies
different treatment in the Commonwealth. He failed to appear and present either
case. Accordingly, his claim on appeal that that statute somehow denied him that
opportunity rings hollow.
                                        F.    Recusal
               Mir argues that the Hearing Examiner abused her discretion by failing
to consent to his request for her to recuse herself. There is absolutely no support
for Mir’s claim that the Hearing Examiner acted with bias or prejudice against him.
His claim to the contrary stems largely from the fact that the Hearing Examiner
denied Mir’s last entreaties for a continuance of the hearing. As we noted above,
there was no abuse of discretion in this regard. Accordingly, we conclude that the
Hearing Examiner did not abuse her discretion in denying Mir’s request for
recusal.

      8
          Act of December 20, 1985, P.L. 457, as amended, 63 P.S. § 422.9(a).



                                              22
                               III. CONCLUSION
            It is a strange matter, indeed, where the record on appeal is both
extensive and limited. This is such a case. Despite assembling and filing with this
Court a four-volume reproduced record, spanning nearly 1,500 pages, the Board’s
decision to impose reciprocal discipline in this case is based on two important but
undisputed facts: (1) the Board presented undisputed evidence that the medical
boards in both California and New York revoked Mir’s privileges to practice
medicine in those states; and (2) Mir did not appear before the rescheduled hearing
to present evidence or argument against the imposition of reciprocal discipline in
Pennsylvania.    Once Mir exhausted his appeals from the MBC Revocation
Decision, the Board was under no obligation to postpone indefinitely its review
and decision in this case to allow Mir to sue the MBC and its members in various
federal courts. The Board’s decision to impose reciprocal discipline in this matter
is supported by the record and comports with the Act. Mir has not identified any
abuse of discretion that would warrant reversal. Accordingly, and for the reasons
set forth above, we affirm the Board’s order.




                                P. KEVIN BROBSON, Judge




                                        23
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jehan Zeb Mir, M.D.,                   :
                        Petitioner     :
                                       :
            v.                         :   No. 2557 C.D. 2015
                                       :
Bureau of Professional and             :
Occupational Affairs, State Board      :
of Medicine,                           :
                         Respondent    :



                                     ORDER


            AND NOW, this 31st day of October, 2016, the order of the Bureau of
Professional and Occupational Affairs, State Board of Medicine, is AFFIRMED.




                              P. KEVIN BROBSON, Judge
