83 FR 24492 - Jopindar P. Harika, M.D.; Order
DEPARTMENT OF JUSTICE
Drug Enforcement Administration Federal Register Volume 83, Issue 103 (May 29, 2018)
Drug Enforcement Administration
Federal Register Volume 83, Issue 103 (May 29, 2018)
| Page Range | 24492-24493 | |
| FR Document | 2018-11433 |
[Federal Register Volume 83, Number 103 (Tuesday, May 29, 2018)] [Notices] [Pages 24492-24493] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-11433] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Drug Enforcement Administration 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. --------------------------------------------------------------------------- \1\ Evidence submitted by the Government establishes that this registration does not expire until October 31, 2018. GX 1. --------------------------------------------------------------------------- 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. Sec. 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 [[Page 24493]] 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. [FR Doc. 2018-11433 Filed 5-25-18; 8:45 am] BILLING CODE 4410-09-P
![24492 Federal Register / Vol. 83, No. 103 / Tuesday, May 29, 2018 / Notices
emailed to preliminaryconferences@ personnel will sign appropriate Administration, Delivery, Gift, or
usitc.gov (DO NOT FILE ON EDIS) on or nondisclosure agreements. Prescription of a Controlled Substance
before June 8, 2018. Parties in support Authority: These investigations are being by a Practitioner in violation of 35 Pa.
of the imposition of countervailing and conducted under authority of title VII of the Cons. Stat. § 780–113(a)(14). Id. at 2.
antidumping duties in these Tariff Act of 1930; this notice is published The Order further asserted that ‘‘[t]his is
investigations and parties in opposition pursuant to section 207.12 of the a felony offense.’’ Id.
to the imposition of such duties will Commission’s rules. On June 9, 2017, more than 14 months
each be collectively allocated one hour By order of the Commission. after the Board’s Action, a Diversion
within which to make an oral Issued: May 23, 2018. Investigator (DI) attempted to serve the
presentation at the conference. A Show Cause Order on Registrant by
Lisa Barton,
nonparty who has testimony that may Certified Mail addressed to him at his
Secretary to the Commission.
aid the Commission’s deliberations may registered address in Monroeville,
[FR Doc. 2018–11392 Filed 5–25–18; 8:45 am] Pennsylvania. GX 6, at 1 (Declaration of
request permission to present a short
statement at the conference. BILLING CODE 7020–02–P DI). Also on June 9, the DI mailed a
Written submissions.—As provided in copy of the Show Cause Order address
sections 201.8 and 207.15 of the to Registrant at the ‘‘Berks County Jail
Commission’s rules, any person may DEPARTMENT OF JUSTICE System, 1287 County Welfare Road,
submit to the Commission on or before Leesport, PA 19533,’’ which the DI
June 15, 2018, a written brief containing Drug Enforcement Administration states is his ‘‘last known address.’’ Id.
information and arguments pertinent to However, on June 19, 2017, both
the subject matter of the investigations. Jopindar P. Harika, M.D.; Order mailings were returned to DEA, with the
Parties may file written testimony in On June 8, 2017, the Assistant mailing to his registered address marked
connection with their presentation at Administrator, Diversion Control as ‘‘moved/left no address unable to
the conference. All written submissions Division, Drug Enforcement forward’’ and the mailing to the Berks
must conform with the provisions of Administration, issued an Order to County Jail marked with the notation of
section 201.8 of the Commission’s rules; Show Cause to Jopindar P. Harika, M.D. ‘‘person no longer confined here.’’ GX 5,
any submissions that contain BPI must (hereinafter, Registrant), of Monroeville, at 1 (Order, Oct. 17, 2017).
also conform with the requirements of Pennsylvania. The Show Cause Order On June 21, 2017, the DI re-mailed the
sections 201.6, 207.3, and 207.7 of the proposed the revocation of Registrant’s Show Cause Order to Registrant at both
Commission’s rules. The Commission’s DEA Certificate of Registration on two addresses by First Class Mail. GX 6, at
Handbook on E-Filing, available on the grounds: (1) That he does ‘‘not have 1. According to the DI, the mailing to
Commission’s website at https:// authority to handle controlled the jail ‘‘was returned . . . on June 29,
edis.usitc.gov, elaborates upon the substances in the State of Pennsylvania, 2017, with the response ‘person no
Commission’s rules with respect to the [S]tate in which [he is] registered longer confined here.’ No response was
electronic filing. with the’’ Agency, and (2) that he has obtained from the USPS First Class
In accordance with sections 201.16(c) ‘‘been convicted of a felony offense letter sent to Respondent’s registered
and 207.3 of the rules, each document related to controlled substances.’’ Show address.’’ Id. at 1–2.
filed by a party to the investigations Cause Order, at 1 (citing 21 U.S.C. Thereafter, on July 10, 2017, the
must be served on all other parties to 824(a) (2) & (3)). Government submitted a Request for
the investigations (as identified by As to the jurisdictional basis for the Final Agency Action. Therein, the
either the public or BPI service list), and proceeding, the Show Cause Order Government asserted that it was
a certificate of service must be timely alleged that Registrant is the holder of forwarding the matter to my Office
filed. The Secretary will not accept a Certificate of Registration No. ‘‘because more than thirty days have
document for filing without a certificate FH4408248 pursuant to which he is passed since the Order to Show Cause
of service. authorized to dispense controlled was served on [Registrant] and no
Certification.—Pursuant to section substances in schedules II through V, at request for hearing has been received by
207.3 of the Commission’s rules, any the registered address of 321 Red Oak DEA.’’ GX 4, at 1 (Req. for Final Agency
person submitting information to the Court, Monroeville, Pennsylvania. Id. Action).
Commission in connection with these The Order further alleged that this On review, I concluded that the
investigations must certify that the registration was due to expire on Government’s Request for Final Agency
information is accurate and complete to October 31, 2017.1 Id. Action was premature because it did not
the best of the submitter’s knowledge. In As for the substantive grounds for the wait at least 30 days from the effective
making the certification, the submitter proceeding, the Show Cause Order date of service before submitting its
will acknowledge that any information alleged that on April 8, 2016, the State request. GX 5, at 2 (Order, Oct. 17,
that it submits to the Commission of Pennsylvania suspended Registrant’s 2017). Therein, I first held that the
during these investigations may be ‘‘authority to prescribe and administer Government’s initial efforts to serve
disclosed to and used: (i) By the controlled substances’’ and that he is Registrant by certified mail which, in
Commission, its employees and Offices, ‘‘without authority to handle controlled both instances, were returned to the
and contract personnel (a) for substances in Pennsylvania, the [S]tate Government, were clearly inadequate to
developing or maintaining the records in which [he is] registered with the’’ effect service under Jones v. Flowers,
of these or related investigations or Agency. Id. The Order further alleged 547 U.S. 220 (2006). Id.
reviews, or (b) in internal investigations, As for the Government’s subsequent
that ‘‘[o]n September 10, 2015,
daltland on DSKBBV9HB2PROD with NOTICES
audits, reviews, and evaluations relating mailing of the Show Cause Order by
[Registrant] pled and [was] found guilty
to the programs, personnel, and regular first class mail to Respondent’s
in the Court of Common Pleas of Berks
operations of the Commission including registered address, I explained that
County, Pennsylvania to the Unlawful
under 5 U.S.C. Appendix 3; or (ii) by while this may have been effective,
U.S. government employees and 1 Evidence submitted by the Government given that the previous mailing was
contract personnel, solely for establishes that this registration does not expire returned with the notation ‘‘moved/left
cybersecurity purposes. All contract until October 31, 2018. GX 1. no address unable to forward,’’ the
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![Federal Register / Vol. 83, No. 103 / Tuesday, May 29, 2018 / Notices 24493
Government must provide some over the course of several months.’’ Here, I conclude that none of the
additional evidence to establish a RFAA II, at 2. The Government further Government’s attempts at service were
continuing nexus between Registrant states that ‘‘the case agent has been adequate under Jones. As for its
and this address. Id. (citing Jones, 547 unable to determine the whereabouts of mailings to the Berks County Jail, which
U.S. at 230 (requiring ‘‘the government the Registrant, much less effect service the DI maintained was his ‘‘last known
to consider unique information about an of the Order upon him,’’ id., as ‘‘the address,’’ the Government produced no
intended recipient regardless of whether home at the registered address is evidence that he was still likely to be
a statutory scheme is reasonably vacant.’’ Id. n.2. confined there when it attempted to
calculated to provide notice in the The Government thus argues that it serve the Show Cause Order on him. As
ordinary case’’)). ‘‘has now exhausted all reasonable for the mailing to his registered address,
I further noted that even assuming attempts to serve Registrant with the
that this mailing was adequate to effect which apparently was his residence,
Order,’’ and notes that it ‘‘is not
service, ‘‘Registrant would have had once the Government received back the
required to undertake ‘heroic efforts’ to
until July 24, 2017 to file a hearing certified mailing which bore the
find a registrant.’’ RFAA II, at 2, & n.3
request or a written statement.’’ Id. at (quoting Dusenbery v. United States, notation ‘‘moved/left no address unable
n.1. Thus, I held that the Government 534 U.S. 161, 170 (2002)). It further to forward,’’ the Government was
had submitted its Request for Final argues that ‘‘[b]ecause many months obligated to take any ‘‘additional
Agency Action well before the have passed since DEA’s mail and in- reasonable steps’’ to notify Registrant.
expiration of the 30-day period in which person attempts to serve Registrant . . . Id. However, the sole step it took was to
Registrant was entitled to either request and because Registrant has not visit the property and confirm what the
a hearing or to submit a written requested a hearing within 30 days of certified mailing already suggested—
statement while waiving his right to a any receipt of the Order and has not that Registrant no longer resided there,
hearing. Id. at 2 (citing 21 CFR . . . corresponded . . . with DEA and indeed, that the property was
1301.43(a) & (c)). regarding the Order, including the filing vacant.
I therefore denied the Government’s of any written statement in lieu of a
Request for Final Agency Action As for the Government’s assertion that
hearing, he has waived his right to a it has ‘‘exhausted all reasonable efforts
without prejudice. Id. I further held that hearing.’’ Id. (21 CFR 1301.43).
the Government could resubmit its to locate Registrant,’’ this may be, but
Because I again find that the the Government has identified no such
Request provided that it properly Government has failed to provide notice
established that the subsequent mailing efforts it made other than the visit to an
reasonably calculated to apprise
to Registrant’s registered address was address that the Government already
Registrant of the proceeding, I deny its
effective and Registrant did not request knew the Registrant had vacated. And
Request for Final Agency Action. It is
a hearing within the 30-day period. Id. true that Due Process does not require while the Government is correct that it
Thereafter, on November 6, 2017, the is not required to undertake ‘‘heroic
that Registrant receive actual notice of
DI went to Registrant’s registered efforts’’ to find a registrant, visiting
the Show Cause Order. Rather, the
address in Monroeville, Pennsylvania. Registrant’s residence after knowing that
Government’s obligation is limited to
GX 6, at 2. According to the DI, upon the Post Office previously had indicated
providing ‘‘‘notice reasonably
her arrival, she ‘‘knocked on the door, that he had moved cannot be fairly
calculated, under all the circumstances,
but there was no answer.’’ Id. The DI characterized as a ‘‘heroic effort[].’’
to apprise [him] of the pendency of the
‘‘observed that there was a stack of
action.’’’ Jones v. Flowers, 547 U.S. 220, Accordingly, I again hold that the
soaking wet mail sitting under a rock
226 (2006) (quoting Mullane v. Central Government has not established that it
near the front door and . . . an envelope
from the ‘Municipality of Monroeville’ Hanover Bank & Trust Co., 339 U.S. has provided notice reasonably
taped to the front door.’’ Id. The DI 306, 314 (1950)). It is also true that the calculated to apprise Registrant of the
further stated the ‘‘the property was in Government is not required to engage in proceeding. I therefore deny the
a general state of disrepair,’’ with ‘‘heroic efforts’’ to effectuate service. Government’s Second Request for Final
another of the home’s entrances being Dusenbery v. United States, 534 U.S. Agency Action.
‘‘boarded up, a shattered window, a 161, 170 (2002).
On the other hand, the Government is It is so ordered.
downspout that had come apart and
required ‘‘to consider unique Dated: May 17, 2018.
fallen to the ground, overgrown
information about an intended recipient Robert W. Patterson,
landscaping, and garbage cans that were
regardless of whether a statutory scheme
knocked over.’’ Id. The DI thus Acting Administrator.
is reasonably calculated to provide
‘‘determined that the home was vacant.’’ [FR Doc. 2018–11433 Filed 5–25–18; 8:45 am]
notice in the ordinary case.’’ Jones, 547
Id. BILLING CODE 4410–09–P
The DI also noted that ‘‘[t]here is no U.S. at 230. Jones further makes clear
email address listed for Registrant in that while the adequacy of a particular
DEA’s registration database,’’ and thus, effort at service ‘‘is assessed ex ante,’’
‘‘electronic delivery of [the Show Cause id. at 231, when the Government
Order] to Registrant is not possible.’’ Id. receives information that its attempt at
The DI thus asserted that she has service was ineffective, it must consider
‘‘exhausted all reasonable efforts to that information and determine whether
locate Registrant in an attempt to serve there were any ‘‘additional reasonable
daltland on DSKBBV9HB2PROD with NOTICES
him with’’ the Order. Id. steps’’ that the Government could have
On January 30, 2018, the Government taken to notify registrant of the
submitted a Second Request for Final proceeding.2 Id. at 234.
interests does not relieve the [Government] of its
Agency Action (RFAA II). Therein, the 2 While constitutional obligation’’’ to provide adequate
the CSA requires that a registrant notify
Government asserts that its case agent the Agency if he changes his business or notice. Jones, 547 U.S. at 232 (quoting Mennonite
‘‘has made numerous attempts to serve professional address, see 21 U.S.C. 827(g), ‘‘‘a Bd. of Missions v. Adams, 462 U.S. 791, 799 (1983))
the [Show Cause Order] on Registrant party’s ability to take steps to safeguard its own (int. quot. and citation omitted).
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Document Created: 2018-05-26 00:48:07
Document Modified: 2018-05-26 00:48:07
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