Ruben v. Drug Enforcement Administration

FILED
NOT FOR PUBLICATION
OCT 29 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID A. RUBEN, M.D., No. 13-72577
Petitioner, DEA No. USDOJ/DEA No. 11-39
v.
MEMORANDUM*
DRUG ENFORCEMENT
ADMINISTRATION,
Respondent.
On Petition for Review of an Order of the
Drug Enforcement Administration
Submitted October 22, 2015**
San Francisco, California
Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges.
Petitioner David Ruben seeks review of the decision by the Administrator of
the Drug Enforcement Administration to suspend Ruben’s Certificate of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Registration for one year and to impose conditions on his registration for two
years. We have jurisdiction under 21 U.S.C. § 877, and we deny Ruben’s petition.
We may set aside the Administrator’s decision only if it was “arbitrary,
capricious, an abuse of discretion or not in accordance with the law.” Fry v. Drug
Enf’t Agency, 353 F.3d 1041, 1043 (9th Cir. 2003) (citing 5 U.S.C. § 706(2)(a)). A
decision is not arbitrary and capricious if it is “based on a consideration of relevant
factors and there is no clear error of judgment.” Id. The Administrator’s factual
findings are conclusive if supported by substantial evidence. See 21 U.S.C. § 877.
Here, the Administrator considered the statutory factors to determine
whether registration was inconsistent with the public interest. See 21 U.S.C. §
824(a)(4) (authorizing suspensions where registration is inconsistent with the
public interest); 21 U.S.C. § 823(f) (identifying statutory factors); Medicine
Shoppe—Jonesborough, 73 Fed. Reg. 364, 380 (Jan. 2, 2008). The Administrator
also considered factors identified in agency precedent, including Ruben’s
acceptance of responsibility for his past misconduct and evidence of reform, see
Medicine Shoppe, 73 Fed. Reg. at 387, the egregiousness of Ruben’s actions, see
Paul H. Volkman, 73 Fed. Reg. 30,630, 30,644 (May 28, 2008), and the need for
deterrence, Joseph Gaudio, M.D., 74 Fed. Reg. 10,083, 10,094 (Mar. 9, 2009).
2
After reviewing these factors, the Administrator found the egregiousness of
Ruben’s actions and the need for deterrence warranted suspending Ruben’s
registration. The Administrator assigned less weight to Ruben’s evidence of
reform not because the Administrator challenged the credibility of Ruben’s
testimony but because of evidence that Ruben improperly dispensed high doses of
opioids to a patient while Ruben was on probation by the State of Arizona.
The Administrator’s decision was not a clear error of judgment in light of
the Administrator’s findings that Ruben committed acts inconsistent with the
public interest between 2006 and 2009, that Ruben “acted outside of the usual
course of professional practice and lacked a legitimate medical purpose” for many
prescriptions, and that in some instances his prescriptions “completely betrayed
any semblance of legitimate medical treatment.”
These findings are supported by substantial evidence in the Arizona Medical
Board’s 2009 Consent Agreement and 2010 Order. The Agreement and Order
show that Ruben often prescribed drugs without conducting proper examinations,
without documenting a rationale for the prescriptions, without monitoring patients’
medication use, without obtaining prior medical records, and without questioning
patients’ claims of damaged or stolen prescriptions. Ruben also provided early
refills or escalated doses without supporting documentation and, on some
3
occasions, continued to prescribe drugs to patients who tested positive for narcotics
he had not prescribed.
Finally, Ruben’s prior state suspension does not render the Administrator’s
decision to suspend his federal registration arbitrary and capricious. The
Administrator was aware of Ruben’s prior suspension but correctly recognized that
the agency’s obligation to protect the public interest derives from the federal
government, a sovereign separate from the State of Arizona with different
jurisdiction and goals.
DENIED.
4