2018-11433. Jopindar P. Harika, M.D.; Order

On June 8, 2017, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration, issued an Order to Show Cause to Jopindar P. Harika, M.D. (hereinafter, Registrant), of Monroeville, Pennsylvania. The Show Cause Order proposed the revocation of Registrant's DEA Certificate of Registration on two grounds: (1) That he does “not have authority to handle controlled substances in the State of Pennsylvania, the [S]tate in which [he is] registered with the” Agency, and (2) that he has “been convicted of a felony offense related to controlled substances.” Show Cause Order, at 1 (citing 21 U.S.C. 824(a) (2) & (3)).

As to the jurisdictional basis for the proceeding, the Show Cause Order alleged that Registrant is the holder of Certificate of Registration No. FH4408248 pursuant to which he is authorized to dispense controlled substances in schedules II through V, at the registered address of 321 Red Oak Court, Monroeville, Pennsylvania. Id. The Order further alleged that this registration was due to expire on October 31, 2017.^[1] Id.

As for the substantive grounds for the proceeding, the Show Cause Order alleged that on April 8, 2016, the State of Pennsylvania suspended Registrant's “authority to prescribe and administer controlled substances” and that he is “without authority to handle controlled substances in Pennsylvania, the [S]tate in which [he is] registered with the” Agency. Id. The Order further alleged that “[o]n September 10, 2015, [Registrant] pled and [was] found guilty in the Court of Common Pleas of Berks County, Pennsylvania to the Unlawful Administration, Delivery, Gift, or Prescription of a Controlled Substance by a Practitioner in violation of 35 Pa. Cons. Stat. § 780-113(a)(14). Id. at 2. The Order further asserted that “[t]his is a felony offense.” Id.

On June 9, 2017, more than 14 months after the Board's Action, a Diversion Investigator (DI) attempted to serve the Show Cause Order on Registrant by Certified Mail addressed to him at his registered address in Monroeville, Pennsylvania. GX 6, at 1 (Declaration of DI). Also on June 9, the DI mailed a copy of the Show Cause Order address to Registrant at the “Berks County Jail System, 1287 County Welfare Road, Leesport, PA 19533,” which the DI states is his “last known address.” Id. However, on June 19, 2017, both mailings were returned to DEA, with the mailing to his registered address marked as “moved/left no address unable to forward” and the mailing to the Berks County Jail marked with the notation of “person no longer confined here.” GX 5, at 1 (Order, Oct. 17, 2017).

On June 21, 2017, the DI re-mailed the Show Cause Order to Registrant at both addresses by First Class Mail. GX 6, at 1. According to the DI, the mailing to the jail “was returned . . . on June 29, 2017, with the response `person no longer confined here.' No response was obtained from the USPS First Class letter sent to Respondent's registered address.” Id. at 1-2.

Thereafter, on July 10, 2017, the Government submitted a Request for Final Agency Action. Therein, the Government asserted that it was forwarding the matter to my Office “because more than thirty days have passed since the Order to Show Cause was served on [Registrant] and no request for hearing has been received by DEA.” GX 4, at 1 (Req. for Final Agency Action).

On review, I concluded that the Government's Request for Final Agency Action was premature because it did not wait at least 30 days from the effective date of service before submitting its request. GX 5, at 2 (Order, Oct. 17, 2017). Therein, I first held that the Government's initial efforts to serve Registrant by certified mail which, in both instances, were returned to the Government, were clearly inadequate to effect service under Jones v. Flowers, 547 U.S. 220 (2006). Id.

As for the Government's subsequent mailing of the Show Cause Order by regular first class mail to Respondent's registered address, I explained that while this may have been effective, given that the previous mailing was returned with the notation “moved/left no address unable to forward,” the Government must provide some additional evidence to establish a continuing nexus between Registrant and this address. Id. (citing Jones, 547 U.S. at 230 (requiring “the government to consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case”)).

I further noted that even assuming that this mailing was adequate to effect service, “Registrant would have had until July 24, 2017 to file a hearing request or a written statement.” Id. at n.1. Thus, I held that the Government had submitted its Request for Final Agency Action well before the expiration of the 30-day period in which Registrant was entitled to either request a hearing or to submit a written statement while waiving his right to a hearing. Id. at 2 (citing 21 CFR 1301.43(a) & (c)).

I therefore denied the Government's Request for Final Agency Action without prejudice. Id. I further held that the Government could resubmit its Request provided that it properly established that the subsequent mailing to Registrant's registered address was effective and Registrant did not request a hearing within the 30-day period. Id.

Thereafter, on November 6, 2017, the DI went to Registrant's registered address in Monroeville, Pennsylvania. GX 6, at 2. According to the DI, upon her arrival, she “knocked on the door, but there was no answer.” Id. The DI “observed that there was a stack of soaking wet mail sitting under a rock near the front door and . . . an envelope from the `Municipality of Monroeville' taped to the front door.” Id. The DI further stated the “the property was in a general state of disrepair,” with another of the home's entrances being “boarded up, a shattered window, a downspout that had come apart and fallen to the ground, overgrown landscaping, and garbage cans that were knocked over.” Id. The DI thus “determined that the home was vacant.” Id.

The DI also noted that “[t]here is no email address listed for Registrant in DEA's registration database,” and thus, “electronic delivery of [the Show Cause Order] to Registrant is not possible.” Id. The DI thus asserted that she has “exhausted all reasonable efforts to locate Registrant in an attempt to serve him with” the Order. Id.

On January 30, 2018, the Government submitted a Second Request for Final Agency Action (RFAA II). Therein, the Government asserts that its case agent “has made numerous attempts to serve the [Show Cause Order] on Registrant over the course of several months.” RFAA II, at 2. The Government further states that “the case agent has been unable to determine the whereabouts of the Registrant, much less effect service of the Order upon him,” id., as “the home at the registered address is vacant.” Id. n.2.

The Government thus argues that it “has now exhausted all reasonable attempts to serve Registrant with the Order,” and notes that it “is not required to undertake `heroic efforts' to find a registrant.” RFAA II, at 2, & n.3 (quoting Dusenbery v. United States, 534 U.S. 161, 170 (2002)). It further argues that “[b]ecause many months have passed since DEA's mail and in-person attempts to serve Registrant . . . and because Registrant has not requested a hearing within 30 days of any receipt of the Order and has not . . . corresponded . . . with DEA regarding the Order, including the filing of any written statement in lieu of a hearing, he has waived his right to a hearing.” Id. (21 CFR 1301.43).

Because I again find that the Government has failed to provide notice reasonably calculated to apprise Registrant of the proceeding, I deny its Request for Final Agency Action. It is true that Due Process does not require that Registrant receive actual notice of the Show Cause Order. Rather, the Government's obligation is limited to providing “`notice reasonably calculated, under all the circumstances, to apprise [him] of the pendency of the action.'” Jones v. Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). It is also true that the Government is not required to engage in “heroic efforts” to effectuate service. Dusenbery v. United States, 534 U.S. 161, 170 (2002).

On the other hand, the Government is required “to consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case.” Jones, 547 U.S. at 230. Jones further makes clear that while the adequacy of a particular effort at service “is assessed ex ante,” id. at 231, when the Government receives information that its attempt at service was ineffective, it must consider that information and determine whether there were any “additional reasonable steps” that the Government could have taken to notify registrant of the proceeding.^[2] Id. at 234.

Here, I conclude that none of the Government's attempts at service were adequate under Jones. As for its mailings to the Berks County Jail, which the DI maintained was his “last known address,” the Government produced no evidence that he was still likely to be confined there when it attempted to serve the Show Cause Order on him. As for the mailing to his registered address, which apparently was his residence, once the Government received back the certified mailing which bore the notation “moved/left no address unable to forward,” the Government was obligated to take any “additional reasonable steps” to notify Registrant. Id. However, the sole step it took was to visit the property and confirm what the certified mailing already suggested—that Registrant no longer resided there, and indeed, that the property was vacant.

As for the Government's assertion that it has “exhausted all reasonable efforts to locate Registrant,” this may be, but the Government has identified no such efforts it made other than the visit to an address that the Government already knew the Registrant had vacated. And while the Government is correct that it is not required to undertake “heroic efforts” to find a registrant, visiting Registrant's residence after knowing that the Post Office previously had indicated that he had moved cannot be fairly characterized as a “heroic effort[].”

Accordingly, I again hold that the Government has not established that it has provided notice reasonably calculated to apprise Registrant of the proceeding. I therefore deny the Government's Second Request for Final Agency Action.

It is so ordered.

Dated: May 17, 2018.

Robert W. Patterson,

Acting Administrator.

Footnotes

1.  Evidence submitted by the Government establishes that this registration does not expire until October 31, 2018. GX 1.

2.  While the CSA requires that a registrant notify the Agency if he changes his business or professional address, see 21 U.S.C. 827(g), “`a party's ability to take steps to safeguard its own interests does not relieve the [Government] of its constitutional obligation'” to provide adequate notice. Jones, 547 U.S. at 232 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799 (1983)) (int. quot. and citation omitted).