# Rizvi v. The Commonwealth of Pennsylvania

> District Court, E.D. Pennsylvania · August 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10401579

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HIL RIZVI, M.D., CIVIL ACTION
Plaintiff,

v.

PETER KOVACH, et al., NO. 20-3269
Defendants.

MEMORANDUM OPINION

Plaintiff Hil Rizvi, M.D., acting pro se, sues current and former employees of the United
States Department of Justice Drug Enforcement Administration (“DEA”): Robert W. Walker,
Timothy J. Shea, William McDermott, and Andria Harris (collectively, “the Federal
Defendants”).1 The Federal Defendants jointly move to dismiss Plaintiff’s claims for lack of
subject matter jurisdiction and for failure to state a claim. For the following reasons, their
motion will be granted.
This action arises out of the revocation for five years of Plaintiff’s license to practice
medicine in Pennsylvania by the Commonwealth of Pennsylvania State Board of Medicine.
Plaintiff appealed to the Commonwealth Court of Pennsylvania, which affirmed. He then filed
an application for allowance of appeal with the Pennsylvania Supreme Court, which was denied.
Shortly thereafter, Plaintiff commenced this suit, seeking monetary damages as well as
declaratory and injunctive relief in connection with the revocation of his Pennsylvania medical
license. At the time, Plaintiff was the holder of a DEA certificate of registration in Pennsylvania,

1 Plaintiff has served the Federal Defendants only in their official capacities, via service upon the United States
Attorney’s Office, the United States Attorney General, and the DEA. See Fed. R. Civ. P. 4(i)(2). He has not
individually served these Defendants in accordance with Federal Rule of Civil Procedure 4(i)(3). Plaintiff’s claims
are thus construed as being lodged against the Federal Defendants in their official capacities only.
allowing him to distribute and prescribe controlled substances. Several weeks later, the DEA
issued Plaintiff an Order to Show Cause (“OSC”) proposing the revocation of his Pennsylvania
DEA registration. The OSC stated that because Plaintiff’s Pennsylvania medical license had
been revoked, he was without authority to dispense controlled substances in the Commonwealth.

See Hil Rizvi, M.D., Decision and Order, 85 Fed. Reg. 73,804 (Nov. 19, 2020). The OSC set
forth Plaintiff’s options for responding. Id. Plaintiff submitted an email response, which was
considered by the DEA. Id. at 73,805. On November 9, 2020, the DEA issued a final decision
and order revoking Plaintiff’s DEA registration, which decision was published in the federal
register on November 19, 2020. Id. at 73,804-73, 806.
Plaintiff then amended his Complaint to add multiple defendants associated with state
medical boards in Pennsylvania, New Hampshire, Ohio, and Maine (collectively, the “State
Defendants”), as well as the Federal Defendants. The Complaint: (1) alleges a claim for
deprivation of rights under 42 U.S.C. § 1983; and, (2) seeks referral of Defendants to an
unidentified United States Attorney for prosecution pursuant to the Racketeer Influenced and

Corrupt Organizations Act (“RICO”) as well as the Administrative Procedures Act (“APA”).
Reduced to its essentials, the Complaint demands “restoration of [Plaintiff’s] license to
practice medicine,” which Plaintiff alleges was “wrongfully suspended by the Commonwealth of
Pennsylvania due to the action of Defendants.” The State Defendants were dismissed because
Plaintiff failed to allege a due process violation with respect to the revocation of his
Pennsylvania medical license. See Rizvi v. Kovach, 2021 WL 949464, at *4 (E.D. Pa. Mar. 12,
2021). Liberally construed, the crux of Plaintiff’s allegations against the Federal Defendants is
that his Pennsylvania DEA registration was wrongfully revoked.
The Federal Defendants first argue that to the extent Plaintiff asks for review of the
substance of the DEA’s order revoking his DEA registration, this Court lacks subject matter
jurisdiction because any such review would be barred by the Controlled Substances Act
(“CSA”). When subject matter jurisdiction is challenged under Federal Rule of Civil Procedure
12(b)(1), the plaintiff bears the burden of establishing that such jurisdiction exists. Lincoln

Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). “A case is properly
dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks
the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000).
By way of background, the CSA requires any person who dispenses controlled
substances to first obtain a certificate of registration from the Attorney General or his or her
delegate. See 21 U.S.C. §§ 822(a), 823(f). A separate certificate of registration is “required at
each principal place of business or professional practice where the applicant manufactures,
distributes, or dispenses controlled substances.” 21 U.S.C. § 822(e); see also 21 C.F.R.
§ 1301.12(a). The Attorney General has delegated the authority to issue, deny, revoke, or

suspend registrations to the Administrator of the DEA. See 28 C.F.R. § 0.100(b). The DEA may
suspend or revoke a certificate of registration upon a finding that the registrant “has had his State
license or registration suspended, revoked, or denied by competent State authority and is no
longer authorized by State law to engage in the manufacturing, distribution, or dispensing of
controlled substances.” 21 U.S.C. § 824(a)(3).
Here, Plaintiff’s DEA registration was revoked via an order and final decision issued
pursuant to this provision of the CSA. The CSA provides “any person aggrieved by a final
decision” under the Act “may obtain review of the decision in the United States Court of Appeals
for the District of Columbia or for the circuit in which his principal place of business is located
upon petition filed with the court and delivered to the Attorney General within thirty days after
notice of the decision.” 21 U.S.C. § 877. This provision does not provide federal district courts
authority to review the revocation of a DEA registration. Thus, to the extent Plaintiff seeks
review of the DEA order, this is not the proper forum.

To the extent Plaintiff claims that Defendants’ conduct deprived him of his rights under
42 U.S.C. § 1983, the Federal Defendants argue that he fails to state a claim for which relief
might be granted.2 Under the rubric of Rule 12(b)(6) a complaint must be dismissed unless it
“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). All factual allegations are accepted as true, the Complaint is construed in
the light most favorable to the plaintiff, and a determination is made whether, under any
reasonable reading of the Complaint, the Plaintiff may be entitled to relief. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)).
Section 1983 does not apply to federal actors. Polsky v. United States, 844 F.3d 170, 173

(3d Cir. 2016) (“It is well-established that liability under § 1983 will not attach for actions taken
under color of federal law.” (quoting Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir.
2001))). Thus, any claim against the Federal Defendants premised on Section 1983 claim must
fail.
Even if Plaintiff’s due process claim were to be construed as arising under the Fifth
Amendment and as challenging the process provided to Plaintiff with respect to the revocation
of his Pennsylvania DEA registration, it is not viable. See U.S. Const. amend. V. To state a

2 As to Plaintiff’s claims requesting that Defendants be referred for prosecution, “a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973); see also Godfrey v. Pennsylvania, 525 F. App’x 78, 80 n.1 (3d Cir. 2013) (“[T]here is no federal right to
require the government to initiate criminal proceedings.”). Thus, these claims too will be denied.
Fifth Amendment due process claim, Plaintiff must show that he was deprived of a cognizable
property interest, see Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999), and that the
process afforded him in connection with the deprivation was constitutionally deficient, see
Simmerman v. Corino, 27 F.3d 58, 64 (3d Cir. 1994).3 Even assuming Plaintiff has a
constitutionally-protected property interest in his DEA registration,4 his allegations do not

plausibly suggest that the process associated with its revocation was constitutionally deficient.
He alleges that he: (1) was served with the OSC; (2) was “exclud[ed]” from a hearing; and, (3)
that “[a] timely Appeal process . . . is denied and since ignored.” The DEA’s decision itself,
however, indicates that Plaintiff was provided notice of the action via service of the OSC, which
was hand delivered to Plaintiff; that Plaintiff responded to the OSC via email and phone but did
not request a hearing, thereby waiving his right to a hearing pursuant to 21 C.F.R. § 1301.43(d);
and that the DEA considered Plaintiff’s responses in reaching its decision. See Hil Rizvi, M.D.,
85 Fed. Reg. at 73,805. Moreover, as noted above, Plaintiff had the opportunity to file a petition
for review of the revocation in the appropriate court of appeals. See 21 U.S.C. § 877. “The

essential requirements of due process . . . are notice and an opportunity to respond,” see
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985), and Plaintiff was offered both
in connection with the revocation of his DEA certificate. Accordingly, even liberally construed,

3 The Fifth Amendment “include[s] a substantive component, which forbids the government to infringe [on] certain
‘fundamental’ liberty interests.” Reno v. Flores, 507 U.S. 292, 301-02 (1993). Because Plaintiff’s Complaint
cannot plausibly be read as asserting a substantive due process claim, this Court would construe Plaintiff’s
Complaint as alleging a procedural due process claim.
4 The Federal Defendants argue that “Plaintiff has not cited any statutory or other authority showing that he has a
property right to a DEA Certificate of Registration to distribute or prescribe controlled substances.” The Court
notes, however, that in at least one decision, the DEA itself has recognized that a property interest inheres in a DEA
certificate of registration. See Barry M. Schultz, M.D., Decision and Order, 76 Fed. Reg. 78,695, 78,696 (Dec. 19,
2011) (“The Respondent has a constitutionally protected property interest in his DEA registration.”). Without the
benefit of careful briefing on this issue, the Court assumes without deciding that a property interest inheres in a DEA
certificate of registration to distribute or prescribe controlled substances.
his Complaint fails to state a claim for which relief may be granted.5
An appropriate order follows.
August 16th, 2021 BY THE COURT:

/s/Wendy Beetlestone, J.
_______________________________
WENDY BEETLESTONE, J.

5 Plaintiff has not requested leave to amend his Complaint. Nevertheless, the Court finds that such amendment
would be futile. See Tate v. Morris Cty. Prosecutors Office, 284 F. App’x 877, 879 (3d Cir. 2008) (a district court
must grant leave to amend “even if the plaintiff does not request it, unless amendment would be futile or leave to
amend is not warranted for some other reason”). Plaintiff has already submitted numerous amended complaints,
none of which contains allegations sufficient to support his claims.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10401579. Public record. Not legal advice.