Jopindar P. Harika, M.D.; Order, 24492-24493 [2018-11433]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 83, Number 103 (Tuesday, May 29, 2018)]
[Notices]
[Pages 24492-24493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11433]


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