82 FR 34552 - Mohammed S. Aljanaby, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 141 (July 25, 2017)

[Federal Register Volume 82, Number 141 (Tuesday, July 25, 2017)]
[Notices]
[Pages 34552-34553]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-15494]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Mohammed S. Aljanaby, M.D.; Decision and Order

    On February 10, 2017, the Assistant Administrator, Division of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Mohammed S. Aljanaby, M.D. (hereinafter, Registrant),\1\ 
of West Hartford, Connecticut. Show Cause Order, at 1. The Show Cause 
Order proposed the revocation of Registrant's DEA Certificate of 
Registration, on the ground that he does not have authority to handle 
controlled substances in Connecticut, the State in which he is 
registered with DEA. Id.
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    \1\ Notwithstanding that Dr. Aljanaby is now an ex-registrant, 
he is referred to as Registrant throughout this Decision.
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    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Registrant possesses a practitioner's registration for schedules II 
through V, and that his registered address is 74 Park Road, West 
Hartford, Connecticut. Id. The Order further alleged that Registrant's 
registration ``expires by its own terms on June 30, 2017.'' Id.
    As to the substantive ground for the proposed action, the Show 
Cause Order alleged that ``[o]n November 15, 2017, the State of 
Connecticut Medical Examining Board revoked [his] license to practice 
medicine due to [his] (1) inappropriate physical and/or sexual conduct 
with one or more female patients; and (2) false statements on [his] 
Connecticut medical license renewal application.'' Id. (emphasis 
added). The Show Cause Order also alleged that the Board's ``order 
remains in effect.'' Id.\2\ The Order further asserted that 
Registrant's registration was subject to revocation based on his lack 
of state authority. Id. at 2.
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    \2\ The Show Cause Order also notified Registrant of his right 
to request a hearing or to submit a written statement while waiving 
his right to a hearing, the procedure for electing either option, 
and the consequence of failing to elect either option. Show Cause 
Order, at 2. The Order also notified Registrant of his right to 
submit a Corrective Action Plan. Id. at 2-3 (citing 21 U.S.C. 
824(c)(2)(C)).
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    The Government attempted to serve the Order to Show Cause on 
Registrant through a variety of ways. These included: (1) Mailing by 
first class mail addressed to him at his registered address; (2) a 
Diversion Investigator (DI) going to his registered address, where he 
was told that Registrant ``had not worked there for a very long time'' 
and his current location was unknown; (3) the DI going to Registrant's 
purported residence on Laird Drive in Bristol, Connecticut where no one 
answered the door; \3\ (4) mailing the Show Cause Order by Certified 
Mail, Return Receipt Requested, addressed to him at his registered 
address; (5) mailing the Show Cause Order by Certified Mail, Return 
Receipt Requested, to his purported residence address; (6) mailing the 
Show Cause Order by Certified Mail, Return Receipt Requested, to a 
second property in Bristol, Connecticut, which is purportedly owned by 
Registrant; (7) mailing the Show Cause Order by Certified Mail, Return 
Receipt Requested, to an address in New York State where he receives 
his property tax bill from the Town of Bristol; and (8) email sent to 
an address obtained from a public access database maintained by Thomson 
Reuters, which also corresponds to the email address Registrant 
provided to the Connecticut Board. GX 3, at 1-2 (DI Declaration). The 
first mailing was accomplished on February 10, 2017; the other attempts 
at service were made on February 22-23, 2017. Id.; see also GX 4 
(Declaration of Chief Counsel Analyst).
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    \3\ According to the Connecticut Medical Examining Board's 
Order, when the Board attempted to served Registrant at this address 
its mailing was returned and marked: ``Return to sender, No Such 
Street, Unable to Forward.'' GX 3, Appendix C, at 3.
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    With the exception of the mailing to his registered address (where 
he no longer worked), each of the other mailings was returned to the 
Government and marked as undelivered. GX 3, at 2. The Government 
represents, however, that the attempt to email the Show Cause Order did 
not generate an error or undeliverable message.
    Of note, several courts have held that the emailing of process can, 
depending on the facts and circumstances, satisfy due process, 
especially where service by conventional means is impracticable because 
a person secretes himself. See Rio Properties, Inc. v. Rio Int'l 
Interlink, 284 F.3d 1007, 1017-18 (9th Cir. 2002); Snyder, et al. v. 
Alternate Energy Inc., 857 N.Y.S. 2d 442, 447-449 (N.Y. Civ. Ct. 2008); 
In re International Telemedia Associates, Inc., 245 B.R. 713, 721-22 
(Bankr. N.D. Ga. 2000); see also Richard C. Quigley, 79 FR 50945 
(2014); Emilio Luna, 77 FR 4829, 4830 (2012). Given the multiple 
attempts by the Government to serve the Show Cause Order by 
conventional means, including by mailing it to the address where he 
receives his property tax bills, I conclude that the Government's use 
of email satisfies its obligation with respect to service of the Show 
Cause Order. See, e.g., Jones v. Flowers, 547 U.S. 220, 226 (2006) (due 
process does not require actual notice but only ```notice reasonably 
calculated, under all the circumstances, to apprise interested parties 
of the pendency of the action and afford them an opportunity to present 
their objections.' '' Id. (quoting Mullane v. Central Hanover Bank & 
Trust Co., 339 U.S. 306, 314 (1950)).
    On May 8, 2017, the Government submitted a Request for Final Agency 
Action. Therein, it represents that Registrant did not request a 
hearing or submit a written statement while waiving his right to a 
hearing. The Government thus seeks a final order revoking Registrant's 
registration.
    I deny the Government's Request for an Order of Revocation. As 
support for the proposed revocation, the Government submitted a copy of 
the Board's Order revoking Registrant's state license, which states 
that it was actually issued on the ``15th day of November, 2016.'' GX 
3, Appendix C, at 9. However, as noted above, the Show Cause Order 
alleges that the Board revoked his state license ``[o]n November 15, 
2017.'' See GX 2, at 1. I need not decide, however, whether this 
typographical error renders the Show Cause Order defective as this case 
is now moot.\4\
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    \4\ Had Registrant requested a hearing, the Government could 
have corrected its error as to the date of the Board's Order by 
motion. And by offering the Board's Order to support a motion for 
summary disposition, the Government would have refuted any claim of 
prejudice. Cf. United States v. Cina, 699 F.2d 853, 857 (7th Cir. 
1983) (holding in criminal prosecution that trial court's amendment 
of the alleged commencement date of conspiracy charge by two years 
did not ``affect[] a `material element' of the . . . charge, causing 
prejudice to the defendant''). Furthermore, as long as the Board's 
Order was still in effect, the date of its Order would not be 
material.
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    As noted above, the Show Cause Order alleges that Registrant's 
registration was due to expire on June 30, 2017. Id. According to the 
registration records of the Agency of

[[Page 34553]]

which I take official notice,\5\ Registrant's registration did, in 
fact, expire on June 30, 2017. Moreover, Registrant has not filed a 
renewal application, whether timely or not.
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    \5\ See 5 U.S.C. 556(e); 21 CFR 1316.59(e).
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    It is well settled that ``[i]f a registrant has not submitted a 
timely renewal application prior to the expiration date, then the 
registration expires and there is nothing to revoke.'' Ronald J. 
Riegel, 63 FR 67132, 67133 (1998); see also William W. Nucklos, 73 FR 
34330 (2008). Furthermore, because Registrant did not file a renewal 
application, there is no application to act upon. See Nucklos, 73 FR at 
34330. Accordingly, because there is neither a registration, nor an 
application, to act upon, I hold that this case is now moot.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that the Order to Show Cause issued to 
Mohammed S. Aljanaby, M.D., be, and it hereby is, dismissed.

    Dated: July 14, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-15494 Filed 7-24-17; 8:45 am]
 BILLING CODE 4410-09-P