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NOT FOR PUBLICATION APR 09 2013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).

2
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

3
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.