[Federal Register Volume 77, Number 16 (Wednesday, January 25, 2012)]
[Notices]
[Pages 3797-3798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1491]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Joseph Deluca, D.O.; Dismissal of Proceeding
On July 16, 2010, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Joseph Deluca, D.O. (Registrant), of Coral Springs,
Florida. The Show Cause Order proposed the revocation of Registrant's
DEA Certificate of Registration as a practitioner and the denial of any
pending applications to renew or modify his registration, on the ground
that ``[a]s a result of action by the Florida Department of Health,
Board of Osteopathic Medicine, [he is] without authority to handle
controlled substances in the State of Florida, the [S]tate in which [he
is] registered with DEA.'' Show Cause Order at 1.
On July 27, 2010, the Government attempted to serve the Order to
Show Cause on Registrant by certified mail, return receipt requested,
which was addressed to him at his registered location. However, on
August 9, 2010, the mailing was returned to DEA and stamped with the
notations: ``MOVED, LEFT NO ADDRESS'' and ``RETURNED TO SENDER.'' GX 4.
On December 30, 2010, the Government submitted the investigative
record and a Request for Final Agency Action to this Office. Therein,
the Government stated that: ``[t]he Order to Show Cause was delivered
via certified mail to the registered location of the Registrant, but
was returned unclaimed. The Government has no information on a
forwarding address for the Registrant or of his whereabouts.'' Request
for Final Agency Action, at 1.
In its Request, the Government noted that on November 12, 2008, the
Florida Department of Health, Board of Osteopathic Medicine (Board),
issued an administrative complaint to Registrant. Id. The Government
further noted that on March 23, 2010, the Board issued a final order (a
copy of which was submitted in the Investigative Record) suspending
Registrant's medical license for a period of two years. Id. at 1-2.
In its discussion of the procedural history of the Board
proceeding, the Board's Final Order stated that ``[o]n October 12,
2009, the Petitioner [Florida Department of Health] received a request
from the Respondent for a Hearing Not Involving Disputes Issues of
Material Fact or Informal Hearing.'' GX 6, at 1. The Board's Final
Order then noted that the ``Petitioner has filed a Motion for Final
Order by Hearing Not Involving Disputes Issues of Material Facts,'' and
that ``Respondent filed a response to the Motion for Final Order.'' Id.
The Final Order also included a Certificate of Service, which noted
that a copy of the order had been mailed to Respondent at an address in
Pembroke Pines, Florida. Id. at 8.
Discussion
It is well settled ``that due process requires the government to
provide `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.' '' Jones v. Flowers,
547 U.S. 220, 223 (2006) (quoting Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)). Moreover, `` `when notice is a
person's due * * * [t]he means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to accomplish
it.' '' Jones, 547 U.S. at 229 (quoting Mullane, 339 U.S. at 315).
In Jones, the Court further noted that its cases ``require[] 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.'' Id. at 230. The Court cited with
approval its decision in Robinson v. Hanrahan, 409 U.S. 38 (1972),
where it ``held that notice of forfeiture proceedings sent to a vehicle
owner's home address was inadequate when the State knew that the
property owner was in prison.'' Jones, 547 U.S. at 230.\1\ See also
Robinson, 409 U.S. at 40 (``[T]he State knew that appellant was not at
the address to which the notice was mailed * * * since he was at that
very time confined in * * * jail. Under these circumstances, it cannot
be said that the State made any effort to provide notice which was
`reasonably calculated' to apprise appellant of the pendency of the * *
* proceedings.''); Covey v. Town of Somers, 351 U.S. 141 (1956)
(holding that notice by mailing, publication, and posting was
inadequate when officials knew that recipient was incompetent).
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\1\ The CSA states that ``[b]efore taking action pursuant to [21
U.S.C. 824(a)] * * * the Attorney General shall serve upon the * * *
registrant an order to show cause why registration should not be * *
* revoked[] or suspended.'' 21 U.S.C. 824(c). In contrast to the
schemes challenged in Jones and Robinson, which provided for service
to the property owner's address as listed in state records, neither
the CSA nor Agency regulations state that service shall be made at
any particular address such as the registered location. In any
event, while in most cases, service to a registrant's registered
location provides adequate notice, the Supreme Court's clear
instruction is that the Government cannot ignore ``unique
information about an intended recipient'' when its seeks to serve
that person with notice of a proceeding that it is initiating.
Jones, 547 U.S. at 230.
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The Jones Court further explained that ``under Robinson and Covey,
the government's knowledge that notice pursuant to the normal procedure
was ineffective triggered an obligation on the government's part to
take additional steps to effect notice.'' 547 U.S. at 230. The Court
also noted that ``a party's ability to take steps to safeguard its own
interests [such as by updating his address] does not relieve the State
of its constitutional obligation.'' Id. at 232 (quoting Brief for
United States as Amicus Curiae 16 n.5 (quoting Mennonite Bd. of
Missions v. Adams, 462 U.S. 791, 799 (1983))). However, the Government
is not required to undertake ``heroic efforts'' to find a registrant.
Dusenbery v. United States, 534 U.S. 161, 170 (2002).
Here, it is clear that `` `[t]he means employed' '' by the
Government were not `` `such as one desirous of actually informing the
[registrant] might reasonably adopt to accomplish it.' '' Jones, 547
U.S. at 229 (quoting Mullane, 339 U.S. at 315). While in its Request
for Final Agency Action, the Government asserts that it ``has no
information on a forwarding address for the Registrant or of his
whereabouts,'' the very state board order it relies upon as the basis
[[Page 3798]]
for this proceeding indicates that the Registrant filed pleadings in
that matter and provided an address at which the State served him with
its final order. Yet the Government made no attempt to serve the Order
to Show Cause on him at that address.
Because the Government clearly has information available to it
regarding the whereabouts of Registrant and yet made no attempt to
serve him at that address, I conclude that it has not complied with its
obligation under the Due Process Clause ``to provide `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.' '' Jones, 547 U.S. at 223 (quoting Mullane, 339 U.S.
at 314). Accordingly, the Government's request for a final order
revoking Registrant's registration is denied and the Order to Show
Cause is dismissed without prejudice.
It is so ordered.
Dated: December 23, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-1491 Filed 1-24-12; 8:45 am]
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