Jeri Hassman v. Office of the Deputy Administrator

FILED
NOT FOR PUBLICATION APR 09 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JERI BARBARA HASSMAN, M.D., No. 10-70684
Petitioner, Agency No. 06-62
v.
MEMORANDUM *
OFFICE OF THE DEPUTY
ADMINISTRATOR, DRUG
ENFORCEMENT ADMINISTRATION,
Respondent.
On Petition for Review of an Order of the
Drug Enforcement Administration
Argued and Submitted February 15, 2013
San Francisco, California
Before: FARRIS and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.**
Dr. Jeri Hassman petitions for review of the Drug Enforcement
Administration’s decision to deny her application for registration as a practitioner
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Timothy M. Burgess, District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
authorized to dispense controlled substances after it determined that her
registration would not be in the public interest. We have jurisdiction under 21
U.S.C. § 877 and uphold the DEA’s decision.
Since the parties are familiar with the facts, we do not recount them here.
Our task is to determine whether the final decision of the DEA is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). We have reviewed the record, and conclude that the DEA
examined the record as a whole, considered all important aspects of the issues
raised, did not misconstrue the evidence or reach decisions that run counter to it,
and relied on the five factors Congress intended it to consider in reaching its
decision. See 21 U.S.C. § 823(f); The Lands Council v. McNair, 537 F.3d 981, 987
(9th Cir. 2008) (en banc), overruled on other grounds by American Trucking
Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009). Contrary to
Hassman’s claims, the DEA need not “write an exegesis on every contention” and
the record amply demonstrates that the DEA “has heard and thought and not
merely reacted.” See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)
(quoting Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004)) (internal
quotation marks removed).
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The DEA determined that the government had made a prima facie case
against Hassman’s registration because of her experience and failure to comply
with relevant law, as evidenced by her (1) failure to properly monitor patients, (2)
provision of unwarranted early refills, and (3) deliberate falsification of records.
See 21 U.S.C. § 823(f); 21 C.F.R. § 1306.04(a). This determination was not “so
implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” See The Lands Council, 537 F.3d at 987. Therefore, the DEA
properly shifted the burden to Hassman to show that she had accepted
responsibility for her actions and taken corrective measures to prevent such
misconduct in the future. See, e.g., Medicine Shoppe-Jonesborough, 73 Fed. Reg.
364, 387 (Drug Enforcement Admin. Jan. 2, 2008).
The DEA’s determination that Hassman had not accepted responsibility nor
taken corrective measures was not arbitrary and capricious. See 21 U.S.C. §
706(2)(A). None of her proffered statements amount to an admission of
wrongdoing; they are nothing more than further denials and claims that she was the
unwitting victim of cunning patients. While Hassman offered some evidence of
corrective measures, the DEA was entitled to give greater weight to the evidence
indicating that Hassman has not learned from or improved upon her past
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misconduct. See Idaho v. Interstate Commerce Comm’n, 939 F.2d 784, 789 (9th
Cir. 1991).
The DEA was not required to consider the shortage of pain doctors in
determining whether Hassman’s registration would be in the public interest. See
Gregory Owens, D.D.S., 74 Fed. Reg. 36,751, 36,756-57 (Drug Enforcement
Admin. July 24, 2009). Nor do the circumstances of the case and the passage of
time make the decision arbitrary and capricious. The decision is not inconsistent
with precedent. We reject Hassman’s contentions that the DEA acted arbitrarily
and capriciously and affirm the decision to reject Hassman’s application. See 21
U.S.C. § 706(2)(A).
AFFIRMED.
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