                                                                              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                            NOT FOR PUBLICATION                               MAR 16 2012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.


                                         3
      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


                                           4
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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