Mathew v. United States Drug Enforcement Agency ( 2012 )

FILED
NOT FOR PUBLICATION MAR 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE MATHEW, M.D., No. 10-73480
Petitioner,
v.
MEMORANDUM*
UNITED STATES DRUG
ENFORCEMENT AGENCY,
Respondent.
On Petition for Review of an Order of the
Drug Enforcement Agency
Argued and Submitted March 6, 2012
Seattle, Washington
Before: FERNANDEZ and PAEZ, Circuit Judges, and GWIN, District Judge.**
George Mathew, M.D., appeals the Drug Enforcement Agency Deputy
Administrator’s final decision denying his application for renewal of his DEA
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James S. Gwin, District Judge for the U.S. District
Court for Northern District of Ohio, sitting by designation.
registration certificate. We have jurisdiction under 21 U.S.C. § 877 and we deny
the petition for review.
The narrow parameters of our review are set by the Administrative
Procedure Act, 5 U.S.C. §§ 551 et seq., and this court may not substitute its
judgment for the agency’s. Fry v. D.E.A., 353 F.3d 1041, 1043 (9th Cir. 2003).
The agency’s factual findings are reviewed under the substantial evidence
standard, Donchev v. Mukasey, 553 F.3d 1206, 1212-13 (9th Cir. 2009), and its
decisions may be set aside only if arbitrary, capricious, an abuse of discretion, or
not in accordance with the law. Fry, 353 F.3d at 1043 (citing 5 U.S.C. §
706(2)(A)).
An application for registration may be denied if the Administrator
“determines that the issuance of such registration would be inconsistent with the
public interest.” 21 U.S.C. § 823(f). Inconsistency with the public interest is
determined by considering five statutory factors. Id. The Administrator may
accord each factor the weight that he or she deems appropriate in determining the
public interest. See, e.g., Paul Stepak, M.D., Revocation of Registration, 51 Fed.
Reg. 17556 (May 13, 1986).
The parties’ sole material dispute concerns the fifth factor, whether renewal
of Mathew’s registration may threaten public health and safety. In considering the
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fifth factor, the Deputy Administrator relied on the following evidence: (1)
Mathew’s name, registration number, and a substantially correct version of his
address were found on mailing labels discovered during “trash runs” conducted at
pharmacies associated with Heynowmeds, an internet-based conspiracy to dispense
controlled substances, (2) Mathew was listed as the prescribing physician on a
spreadsheet seized when DEA agents executed a search warrant of Heynowmeds
pharmacies, (3) Mathew was listed as the prescribing physician for a DEA
undercover purchase of hydrocodone, and (4) a DEA wiretap revealed 136
prescriptions for controlled substances for which Mathew was listed as the
authorizing physician. In addition, Mathew admitted to being a prescribing
physician for Abel Rodriguez, who owned a Heynowmeds pharmacy, though he
denied prescribing controlled substances for that pharmacy. Mathew did not
provide the DEA with his bank account records to verify the compensation he
received from Rodriguez, though he promised to do so. Finally, Mathew admitted
that he had previously prescribed a significant number of controlled substances
through the online pharmacy eDrugstore, without establishing bona fide doctor-
patient relationships. The Deputy Administrator drew a reasonable inference from
this evidence that Mathew participated in the Heynowmeds conspiracy, and that his
involvement constituted a second offense.
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The Deputy Administrator also reasonably drew an adverse inference from
Mathew’s failure to accept responsibility for his involvement. Longstanding
agency precedent demonstrates that the DEA considers acceptance of
responsibility to be an important factor when assessing whether a physician’s
registration is consistent with the public interest, regardless of the severity of the
violations alleged. See, e.g., Vincent J. Scolaro, D.O., Grant of Restricted
Registration, 67 Fed. Reg. 42,060 (June 20, 2002) (granting registration as
consistent with the public interest despite recent substance abuse and felony
convictions based in part on physician’s acceptance of responsibility); see also
Morall v. Drug Enforcement Admin., 412 F.3d 165, 182 (5th Cir. 2005) (collecting
agency cases).
By contrast, Mathew offered little evidence to support his contention that he
was the victim of identity theft. Other than the polygraph examination which the
Deputy Administrator rightfully disregarded, he offered the testimony of a forensic
information technology specialist who, at best, presented a plausible theory of how
Mathew’s identity might have been obtained and misused. Though Mathew denied
involvement in the conspiracy during an interview with DEA agents, he did not
testify on his own behalf. On balance, therefore, substantial evidence supported
the Deputy Administrator’s determination that renewal of Mathew’s registration
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was contrary to the public interest. See Gebhart v. S.E.C., 595 F.3d 1034, 1043
(9th Cir. 2010).
We reach this conclusion assuming, without deciding, that the Deputy
Administrator impermissibly shifted the burden of proof to Mathew, impermissibly
drew an adverse inference from Mathew’s failure to testify, and erred in failing to
draw an inference that government witnesses, if called to testify, would not have
implicated Mathew in the conspiracy. Any such error was harmless in light of the
substantial evidence upon which the Deputy Administrator relied in denying
Mathew’s renewal application.
Mathew’s petition for review is DENIED.
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