[Federal Register Volume 82, Number 141 (Tuesday, July 25, 2017)]
[Notices]
[Pages 34552-34553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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]
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