Adnan Ismail d/b/a Heights Convenience, DAB No. 3230 (2026)

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Adnan Ismail d/b/a Heights Convenience (Respondent) appeals an Administrative Law Judge’s (ALJ) Initial Decision and Default Judgment (Initial Decision) and subsequent Order Denying Respondent’s Motion to Reopen Initial Decision and Default Judgment (Denial Order).  Adnan Ismail d/b/a Heights Convenience, DAB TB9987 (2025) (Initial Decision); Case No. T‑25‑2828, Doc. #13a (Feb. 5, 2026) (Denial Order).  For the reasons explained below, we affirm the Initial Decision and the Denial Order.

Legal Background

To protect public health, the Federal Food, Drug, and Cosmetic Act (Act) restricts the sale, distribution, and use of tobacco products.  See 21 U.S.C. §§ 301, 331, 387a, 387f.  The Act provides, among other things, that “[i]t shall be unlawful for any retailer to sell a tobacco product to any person younger than 21 years of age.”  Id. § 387f(d)(5).  Under the applicable regulations, retailers are prohibited from “sell[ing] covered tobacco products to any person younger than 21 years of age” and must “verify by means of photographic identification . . . that no person purchasing the product is younger than 21 years of age.”  21 C.F.R. § 1140.14(b)(1), (2).

The Act authorizes a civil money penalty (penalty) against “any person who violates a requirement of [the Act] which relates to tobacco products.”  21 U.S.C. § 333(f)(9)(A).  Applicable regulations establish a schedule of maximum penalties based on the number of violations committed and the period over which they occurred.  21 C.F.R. § 17.2 (citing 45 C.F.R. § 102.3 (table)).  To impose a penalty, the Center for Tobacco Products (CTP) must file an administrative complaint and serve a copy of the complaint on the respondent.  21 C.F.R. § 17.5.  The respondent may request a hearing before an ALJ by filing an answer to the complaint within 30 days of service.  Id. § 17.9(a).  The respondent may request an extension of time and the ALJ may, for good cause shown, grant the respondent “up to 30 additional days” to answer the complaint.  Id. § 17.9(c).

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The regulations authorize a default judgment if the respondent does not timely answer the complaint.  Id. § 17.11.  If the respondent does not answer the complaint, then the ALJ “shall assume the facts alleged in the complaint to be true, and, if such facts establish liability under the relevant statute [the ALJ] shall issue an initial decision” imposing a penalty.  Id. § 17.11(a). 

Within 30 days after issuance of a default judgment, the respondent may move “to reopen on the grounds that extraordinary circumstances prevented the respondent from filing an answer.”  Id. § 17.11(c).  If the respondent demonstrates “extraordinary circumstances excusing the failure to file an answer in a timely manner,” the ALJ may withdraw the initial decision and “grant the respondent an opportunity to answer the complaint.”  Id. § 17.11(d).  If the ALJ determines that the respondent’s failure to timely file an answer is not excused, then the ALJ shall affirm the initial decision.  Id. § 17.11(e).

A respondent “may appeal an [ALJ’s] initial decision, including a decision not to withdraw a default judgment,” to the Board.  21 C.F.R. § 17.47(a).  The Board may decline to review the case, affirm or reverse the initial decision, “or increase, reduce, reverse, or remand any civil money penalty determined by” the ALJ.  Id. § 17.47(j).

Case Background

On August 14, 2025, CTP served an administrative complaint on Respondent, alleging that Respondent violated the Act and regulations multiple times when it sold regulated tobacco products to underage purchasers and failed to verify that the purchasers were 21 years of age or older.  CRD Dkt. 1 (Compl.) ¶¶ 1, 13, 15; CRD Dkt. 1b (proof of service).1  CTP sought a civil money penalty of $7,115 for these infractions.  Compl. ¶¶ 1, 19.  The complaint and accompanying cover letter instructed Respondent to answer the complaint within 30 days to avoid a default.  Compl. ¶ 17; CRD Dkt. 1a (cover letter). 

Respondent’s answer to the complaint was initially due on September 15, 2025.  See 21 C.F.R. § 17.9(a).  On September 2, 2025, Respondent registered for the Departmental Appeals Board Electronic Filing System (DAB E-file) and requested an unspecified extension of time to file its answer.  CRD Dkt. 3 (“At this time I would like to request an extension, to be given more time to Answer the Allegation.”).  Although the ALJ granted Respondent a 30-day extension of time to answer the complaint, due to an administrative oversight, the order granting Respondent’s request was not uploaded to DAB E-file until October 9, 2025.  CRD Dkt. 4, 5.  On that same day, CRD also sent a courtesy copy of the order granting the extension to the parties by email.  CRD Dkt. 5.  Both the order and email advised the parties that “Respondent’s answer must be filed no later than October 15, 2025.”  CRD Dkt. 4, 5.

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Respondent failed to file an answer or any responsive pleading by the October 15, 2025 deadline.  On November 13, 2025, the ALJ issued the Initial Decision, entering a default judgment against Respondent, finding Respondent liable for the violations alleged in the complaint, and imposing a penalty of $7,115.  Initial Decision at 1, 3.

Respondent subsequently retained counsel and, on December 2, 2025, counsel filed a notice of appearance.  CRD Dkt. 7.  On December 4, 2025, Respondent, by counsel, filed a motion to reopen, arguing that “extraordinary circumstances” prevented Respondent from timely filing an answer.  CRD Dkt. 9.  Specifically, Respondent asserted that it “did not receive timely or proper notice” of the order granting the extension until October 9, making compliance with the October 15 deadline “effectively impossible.”  Id. at 2-3 (arguing that Respondent was “deprived of the full extension originally granted” to prepare an answer and “deprived . . . of adequate time to retain counsel”). 

CTP opposed the motion, noting that since Respondent did not receive the ALJ’s order granting the extension until October 9, “Respondent had no reason to believe that the original due date of September 15, 2025 did not still apply, and it should have filed its answer on that date.”  CRD Dkt. 12, at 5.  CTP also pointed out that Respondent was served with the complaint on August 14 and had sixty days from the time it was served to retain counsel and timely file an answer by the extended October 15 deadline.  Id. 

The ALJ denied Respondent’s motion to reopen and affirmed the Initial Decision, finding that Respondent did not establish that “extraordinary circumstances” prevented it from timely filing an answer.  Denial Order at 3-5.  While the ALJ acknowledged that an “administrative error” caused a delay in informing Respondent of the extended deadline, the ALJ found no support for the assertion “that the administrative error prevented Respondent from timely filing an answer and seeking counsel.”  Id.

Respondent timely filed a notice of appeal and brief (R. Br.) with the Board.  Respondent argues that the ALJ erred by denying its motion to reopen, and asks the Board to reverse the Denial Order, vacate the Initial Decision, and remand the matter to the ALJ for further proceedings.  R. Br. at 2-5.  CTP filed a brief in opposition, arguing that the Initial Decision and Denial Order should be affirmed. 

Standard of Review

“The standard of review on a disputed issue of fact is whether the initial decision is supported by substantial evidence on the whole record.”  21 C.F.R. § 17.47(k).  “The standard of review on a disputed issue of law is whether the initial decision is erroneous.”  Id.  The Board reviews an ALJ’s ruling on a motion to reopen for abuse of discretion.  Shesh Narayan LLC, DAB No. 3137, at 6-7 (2024).

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Analysis

Before the Board, Respondent argues that (i) “the ALJ committed legal error by holding that an admitted agency failure to timely upload and serve an order granting an extension of time cannot constitute ‘extraordinary circumstances’”; (ii) “the ALJ abused discretion by shifting the consequences of the agency’s procedural error onto Respondent and characterizing Respondent’s reasonable reliance on the mandated electronic filing system as negligence”; and (iii) “the ALJ’s reasoning renders the extension mechanism under 21 C.F.R. Part 17 illusory, undermines due process, and contravenes the mandatory reopening language of § 17.11(d).”  R. Br. at 2 (emphasis omitted).  We reject each of Respondent’s arguments because they are without merit.

1. I. The ALJ’s denial of Respondent’s motion to reopen was not an abuse of discretion or legally erroneous.

When a default judgment is entered under 21 C.F.R. Part 17, the respondent may file a motion to reopen on grounds that “extraordinary circumstances prevented the respondent from filing an answer.”  21 C.F.R. § 17.11(c).  If “the respondent can demonstrate extraordinary circumstances excusing the failure to file an answer in a timely manner,” the ALJ may withdraw the default judgment and allow the respondent to file an answer.  Id. § 17.11(d).  “An ALJ’s decision whether to withdraw a default judgment and allow late filing of an answer is discretionary.”  Vape MD LLC, DAB No. 3204, at 4 (2025).  Thus, the Board reviews an ALJ’s denial of a motion to reopen for abuse of discretion.  Id.  “In reviewing an ALJ’s exercise of discretion, the Board’s role ‘is not to substitute our judgment for that of the ALJ.’”  Id. (quoting Retail LLC, DAB No. 2660, at 14 (2015)).  Rather, the Board considers only whether the ALJ “‘has articulated a reasonable basis for the decision under review, not whether it was the only reasonable decision.’”  Id. (quoting Retail at 10).

Here, the ALJ articulated a reasonable basis for finding that Respondent did not show that “extraordinary circumstances” prevented it from filing an answer to the complaint.  Denial Order at 3-5.  The ALJ recognized that “[e]xtraordinary circumstances is a high bar,” noting that “[c]ircumstances attributable to ordinary negligence or lack of diligence are insufficient” to set aside a default judgment.  Id. at 3 (citing Shesh Narayan at 8).  That assessment is consistent with Board precedent, which holds that “at minimum, the ‘extraordinary circumstances’ test requires proof of circumstances outside of Respondent’s ability to control and an absence of negligence.”  Shesh Narayan at 8.  Moreover, a mere showing of inconvenience or difficulty in meeting a deadline is ordinarily not enough to warrant reopening.  See, e.g., Vape MD at 5 (“[T]he ALJ reasonably ruled that Respondent’s counsel failed to demonstrate that his illness – even if it may have presented increased difficulties – was such an extraordinary circumstance that it actually prevented a timely answer to CTP’s Complaint.” (brackets, ellipses, and internal quotation marks omitted)).

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As the ALJ found, the delay in issuing the order granting Respondent a 30-day extension to answer the complaint did not prevent Respondent from retaining counsel or timely filing an answer.  Denial Order at 3-5 (“There is nothing in the record, other than Respondent’s counsel’s assertions, to support the argument that the administrative error prevented Respondent from timely filing an answer and seeking counsel.”).  Respondent does not dispute being served with the complaint on August 14, 2025.  Both the complaint and accompanying cover letter notified Respondent of the need to file an answer within 30 days (by September 15) to avoid a default judgment.  Respondent understood the need to file an answer and, on September 2, registered for DAB E-File and requested an extension of time.  When Respondent did not receive a ruling from the ALJ on its extension request before the September 15 deadline, Respondent had the opportunity to either:  (1) file an answer by September 15; or (2) follow up with CRD about the status of its outstanding extension request.  Respondent did neither of those things.  As the ALJ noted, “not receiving a response to its request for an extension of time to answer before its original answer deadline of September 15, 2025 should have prompted Respondent to be more vigilant.”  Id. at 4.

Even after receipt of the extension order on October 9, 2025, Respondent took no steps to retain counsel or file an answer by the October 15 deadline.  The affidavit Respondent submitted states only that its owner was “unable to prepare or file a timely Answer” within six days (between October 9 and October 15) because of the “short notice and lack of counsel.”  CRD Dkt. 9, at 7 (emphasis omitted).  Even if that were true, Respondent’s assertion ignores the fact that by October 9, Respondent already had eight weeks (since service of the complaint on August 14) to retain counsel and prepare an answer.  In all, Respondent had more than sixty days to retain counsel and timely file an answer by October 15, 2025.  Denial Order at 4 (“Respondent has not shown that it made any attempt to retain counsel after being served on August 14, 2025 and prior to the initial answer deadline (September 15, 2025) or extended answer deadline (October 15, 2025), nor has it identified any extraordinary factors that prevented it from retaining counsel after being served . . . .”).

Indeed, Respondent did not retain counsel or take any steps to avoid a default until after the ALJ issued the Initial Decision and default judgment on November 13, 2025.  R. Br. at 3 (“Upon learning of the default, Respondent promptly retained counsel and timely filed a Motion to Reopen . . . .”).  Respondent’s decision to retain counsel after entry of the default judgment only demonstrates that “Respondent could have sought assistance earlier in these proceedings but neglected to do so.”  Denial Order at 4. 

We reject Respondent’s argument that CRD’s “admitted failure to timely upload and serve” the extension order “constitutes extraordinary circumstances as a matter of law.”  R. Br. at 3.  Respondent provided no legal authority for this assertion, and we are aware of none.  Respondent notes that nothing in 21 C.F.R. § 17.11 “excludes agency error—whether characterized as oversight or negligence—from qualifying as extraordinary.”  Id.  

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While that may be true, the ALJ did not hold that an agency’s administrative error can never constitute extraordinary circumstances.  Rather, as explained above, the ALJ found that the record evidence failed to support Respondent’s assertion that the administrative error in this case prevented Respondent from timely filing an answer or retaining counsel.  Denial Order at 5.  We find no legal or factual error in the ALJ’s determination that “Respondent’s failure to answer the Complaint and timely seek counsel was the result of its own negligence, which is insufficient to reopen a default judgment.”  Id.  

We further reject Respondent’s assertion that the ALJ’s reasoning nullified the extension procedure under Part 17 and improperly shifted the consequences of agency error onto Respondent.  R. Br. at 3-4.  Respondent did not “lose the benefit” of a 30-day extension under 21 C.F.R. § 17.9(c) (permitting ALJs to grant extensions for up to 30 days for good cause shown).  R. Br. at 4.  The ALJ, in fact, granted Respondent a 30-day extension to file its answer.  Despite the extension, Respondent never filed an answer and did not retain counsel until after the ALJ entered a default judgment.  Respondent was certainly entitled to rely on DAB E-File for service of case-related documents, but when it did not receive a ruling on its extension request before September 15, it was incumbent on Respondent to then file an answer or follow up with CRD regarding its outstanding request.  The mere request for an extension of time does not pause the regulatory deadline for answering a complaint or somehow extend the filing deadline for a period longer than 30 days (if such a request is not immediately granted or denied by the ALJ).  Respondent was not deprived of due process (R. Br. at 4) having been properly served with the complaint and given more than sixty days to timely file an answer.  See EI Medical, Inc., DAB No. 3117, at 26 (2023) (rejecting procedural due process argument where appellant was given ample notice of the government’s case and the opportunity to challenge it).

Finally, the ALJ did not apply the “wrong legal test” under section 17.11(d) in noting actions Respondent could have taken (R. Br. at 4) but found that Respondent failed to show that “extraordinary circumstances” prevented it from timely filing an answer.  Denial Order at 4-5.  We agree with Respondent that the original September 15, 2025 deadline to answer the complaint was “superseded” once the ALJ granted Respondent a 30-day extension under 21 C.F.R. § 17.9(c).  R. Br. at 4; see also CRD Dkt. 4, 5.  The problem, however, is that Respondent did not timely answer the complaint on or before the extended deadline of October 15, 2025. 

1. II. The ALJ did not err in assuming that the facts alleged in the complaint are true and establish Respondent’s liability.

After deciding that Respondent’s failure to timely file an answer was not excused, the ALJ appropriately affirmed the Initial Decision.  Denial Order at 5 (citing 21 C.F.R. § 17.11(e)).  Respondent does not challenge any aspect of the Initial Decision and presents no argument that the ALJ’s findings or conclusions in the Initial Decision are erroneous.  Because Respondent did not file an answer, the ALJ was required to “assume 

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the facts alleged in the complaint to be true” and, “if such facts establish liability,” issue a default judgment and impose a civil money penalty.  See 21 C.F.R. § 17.11(a).  Respondent does not contend that the ALJ committed any error by assuming the facts alleged in the complaint to be true and finding that those facts establish Respondent’s liability and warrant the imposition of a $7,115 penalty.  Accordingly, we conclude that the ALJ lawfully issued the Initial Decision imposing a $7,115 penalty. 

Conclusion

We affirm the Initial Decision and the Denial Order.