Mathew v. United States Drug Enforcement Agency

Decision Date16 March 2012
Docket NumberNo. 10-73480,10-73480
PartiesGEORGE MATHEW, M.D., Petitioner, v. UNITED STATES DRUG ENFORCEMENT AGENCY, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

NOT FOR PUBLICATION

MEMORANDUM*

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 DEAregistration 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 thefifth 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.

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...

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