[00:00:06] Speaker 04:
We'll hear argument next in Rabadi against Drug Enforcement Administration.

[00:00:32] Speaker 03:
Good morning, Your Honors.

[00:00:33] Speaker 03:
My name is Joshua Louther, and I represent the petitioner, Dr. Ferris Jerryish Rabadi.

[00:00:37] Speaker 03:
May it please the court.

[00:00:39] Speaker 03:
I'd like to reserve three minutes for rebuttal, if the court will allow.

[00:00:42] Speaker 03:
Keep an eye on the clock.

[00:00:44] Speaker 03:
Dr. Rabadi respectfully submits that the DEA tribunal that made finding as a fact and a recommendation to the DEA administrator is unconstitutional as created.

[00:00:54] Speaker 03:
Specifically, Dr. Rabadi takes the position that violates the Take Care Clause of the U.S.

[00:00:58] Speaker 03:
Constitution.

[00:01:00] Speaker 03:
Of course, the president is the head of the executive branch.

[00:01:03] Speaker 03:
And obviously, according to that clause, he must take care to make sure, take care that the laws are faithfully executed.

[00:01:10] Speaker 03:
He can't do that unless he has actual authority over those to whom he delegates certain tasks in furtherance of accomplishing that.

[00:01:19] Speaker 03:
Specifically, the administrative law judges can be removed only for cause by the MSPB.

[00:01:26] Speaker 03:
In turn, MSPB members

[00:01:28] Speaker 03:
can only be removed for certain enumerated reasons, negligence, inefficiency, malfeasance.

[00:01:35] Speaker 03:
The Fifth Circuit recognized in Jarkosy versus SEC that this, quote, double layer protection, end quote, that ALJs enjoy is a violation of that take care clause.

[00:01:48] Speaker 03:
Of course, is the courts aware, based on the supplemental briefing that you requested, Supreme Court granted cert on that issue, and then we went to SEC versus Jarkosy.

[00:01:58] Speaker 03:
Of course, the Fifth Circuit clearly found that there was a violation of the Take Care Clause.

[00:02:05] Speaker 02:
So how do you distinguish from the Decker-Cole case, which is the Ninth Circuit case, from that Fifth Circuit case?

[00:02:15] Speaker 03:
Your Honor, in Decker-Cole, that relates to a Department of Labor issue.

[00:02:20] Speaker 03:
The difference in Department of Labor and DEA is the secretary under the statute, the secretary of labor may appoint an administrative law judge or any qualified individual under the DEA structure.

[00:02:37] Speaker 03:
The DEA administrator must appoint an administrative law judge who by statute is essentially can only be removed for cause.

[00:02:47] Speaker 03:
And I understand Decker-Cole obviously is a precedent in the Ninth Circuit, but because it is a Department of Labor case which does not require an ALJ, that would be the distinction.

[00:02:58] Speaker 04:
Decker-Cole also emphasized the review of the ALJ decision by politically accountable agency officials, and we have that here, don't we?

[00:03:09] Speaker 03:
Not necessarily, because of course the DEA administrator is

[00:03:15] Speaker 03:
appointed or serves at will, but yet you still have this double layer of protection between the administrative law judge

[00:03:25] Speaker 03:
and that administrator that the Fifth Circuit recognizes.

[00:03:29] Speaker 04:
I agree with that, but I guess the point of my question was the administrator may not be able to fire the ALJ, but the administrator can say, I don't agree with the ALJ's decision in any given case, and can review it de novo, can't he?

[00:03:46] Speaker 03:
True, but the administrator is not exactly in the same position to consider that on the merits as the ALJ, just simply meaning the ALJ obviously is the finder of fact, and the ALJ makes the recommendation to the administrator.

[00:04:02] Speaker 03:
The administrator, like in this particular case, in Dr. Robadi's case, the administrator adopted that opinion

[00:04:08] Speaker 03:
almost without change.

[00:04:10] Speaker 03:
There was no material, there were no material changes.

[00:04:13] Speaker 03:
So the bottom line is, even if you say, okay, we have an ALJ, which the Fifth Circuit recognized is a constitutional problem, right?

[00:04:23] Speaker 03:
But hey, in this case, I didn't mean to say hey, but in this particular case, you have the president

[00:04:29] Speaker 03:
who can who does exercise clearly control over the D. A. Administrator.

[00:04:34] Speaker 03:
Again, it doesn't solve that constitutional problem because the administrator is not in a position essentially to

[00:04:41] Speaker 03:
ignore if she chose everything that the ALJ recommended.

[00:04:47] Speaker 04:
Why not?

[00:04:48] Speaker 04:
The concern I take it with going back to Free Enterprise Fund is that the president's authority to oversee the executive branch will be impaired if he's stuck with these ALJs who he doesn't like, wishes he could get rid of, and they're doing things he doesn't like.

[00:05:03] Speaker 04:
But if that's the concern, why can't the president just say to the DEA administrator, you know what?

[00:05:13] Speaker 04:
These ALJs are bad.

[00:05:15] Speaker 04:
I don't like them.

[00:05:16] Speaker 04:
Since I can't fire them, please just ignore what they do and exercise your de novo review authority to do whatever it is that I want you to do.

[00:05:27] Speaker 04:
You can say that, right?

[00:05:29] Speaker 03:
That is a possibility, certainly, but it wouldn't allow for the system to proceed.

[00:05:36] Speaker 03:
Just like the President has to delegate authority to the Secretary of Labor and the DEA Administrator,

[00:05:42] Speaker 03:
the DEA administrator has to have someone when, you know, diversion investigators move to suspend or revoke a COR, somebody has to hear these cases and the evidence and the facts.

[00:05:53] Speaker 03:
And the, for lack of a less generic way to say it, is the system simply wouldn't work if the DEA administrator is simply accepting wholesale or denying wholesale what these ALJs recommend.

[00:06:09] Speaker 02:
You have to show prejudice, assuming you're right about the first part.

[00:06:14] Speaker 02:
What's the prejudice to the doctor here?

[00:06:16] Speaker 03:
Your honor, if you're right, your honor, I if I'm correct, I believe that we wouldn't have to show prejudice here again for lack of a better analogy.

[00:06:27] Speaker 03:
If the structure

[00:06:29] Speaker 03:
of the tribunal is unconstitutional, it would be akin to structural error in a criminal case, for example.

[00:06:37] Speaker 03:
So this is not where the ALJ excluded an expert witness, and we complain about that.

[00:06:44] Speaker 03:
And, you know, hey, if the expert witness is not going to say anything different than what the DEA's expert says, it's harmless.

[00:06:50] Speaker 03:
I mean, I understand that harmless error applies in these cases.

[00:06:53] Speaker 03:
But on this particular issue, I believe Dr. Roddy submits that we wouldn't have to actually show prejudice.

[00:06:59] Speaker 04:
And what about the Supreme Court's decision in Collins?

[00:07:02] Speaker 04:
Because that seems to suggest that when the problem is a limitation on removal authority, you need to be able to show that there's some reason to think the president might have removed this person.

[00:07:14] Speaker 04:
And I don't think you have that, do you?

[00:07:17] Speaker 03:
As that case relates to this, I'm not sure that we're

[00:07:22] Speaker 03:
considering the holding in the Fifth Circuit that we're asking the court to adopt.

[00:07:27] Speaker 03:
I don't think that is necessary.

[00:07:29] Speaker 03:
It wasn't explicit in that case, and I don't believe that it's necessary to make this finding.

[00:07:38] Speaker 04:
You're down to, you wanted to reserve three minutes?

[00:07:40] Speaker 04:
I do, thank you.

[00:07:41] Speaker 04:
You have three minutes.

[00:07:43] Speaker 04:
All right, we'll hear from the administrator.

[00:08:02] Speaker 00:
Good morning.

[00:08:03] Speaker 00:
May it please the court?

[00:08:04] Speaker 00:
Anita Gay on behalf of the respondents.

[00:08:10] Speaker 00:
With respect to

[00:08:11] Speaker 00:
Dr. Rabadi's jarkacy claim.

[00:08:13] Speaker 00:
First of all, it was not raised below.

[00:08:15] Speaker 00:
It was never raised before the administrator.

[00:08:17] Speaker 00:
It was never raised before the administrative law judge.

[00:08:20] Speaker 00:
It was not raised until it reached this court, so it has been forfeited.

[00:08:24] Speaker 00:
Secondly, there is no merit to that claim.

[00:08:28] Speaker 00:
As Your Honor Judge Miller was pointing out, the removal protection for the DEA ALJs is

[00:08:36] Speaker 00:
is much more similar to what was presented to this court in Decker Cole, and Decker Cole is controlling here.

[00:08:42] Speaker 00:
In Decker Cole, you had ALJs who were inferior officers, who were not policymakers, who were

[00:08:49] Speaker 00:
had the protection of section 7521, which his court found constitutional in Decker Cole.

[00:08:55] Speaker 00:
But you also had a secretary of labor who was removable at will by the president.

[00:09:00] Speaker 00:
And here you have a very similar pattern, a situation of

[00:09:06] Speaker 00:
Administrative law judges who are not policy makers, who are subject to the direction and control of the DEA administrator, they do not promulgate rules, they do not make regulations, they do not set policy.

[00:09:18] Speaker 00:
That is all what the DEA administrator does.

[00:09:21] Speaker 00:
And she also, they serve according to the rules and the policies that she promulgates.

[00:09:28] Speaker 00:
Now they would, they are removable at will through the Merit System Protection Board under 7521, but they do not have a dual level of

[00:09:37] Speaker 00:
protection, which is what has been found unconstitutional in the Jarkissi case in the Fifth Circuit.

[00:09:45] Speaker 00:
But the Jarkissi, it's actually SEC versus Jarkissi, the U.S.

[00:09:48] Speaker 00:
Supreme Court case, does not affect this matter.

[00:09:53] Speaker 00:
I know in the supplemental brief that Dr. Robadi, again, for the very first time,

[00:09:57] Speaker 00:
alleged that he had a right to a jury trial in this matter based on the the theory and dark as he that there was a common law fraud claim and so therefore he should have been entitled to a jury trial we had here is an administrative proceeding with administrative sanctions no civil penalties no fines no imprisonment

[00:10:16] Speaker 00:
So, the Seventh Amendment claim, which, again, was just raised in their supplemental brief, and we did not have the opportunity to review that or brief that thoroughly before this Court.

[00:10:27] Speaker 00:
But, Judge Miller, you were correct that the DEA situation here is similar to that of Decker-Cole.

[00:10:35] Speaker 00:
Also, Judge Malloy, in your question, you were correct that the cases from the Supreme Court, from this circuit, and from other circuits have also found that one must establish prejudice in order to have relief.

[00:10:49] Speaker 00:
And what he would be seeking, apparently, is a new hearing before a different administrative law judge or before a different tribunal.

[00:10:58] Speaker 00:
He doesn't exactly spell out what it is that he's seeking other than to vacate the DEA's decision in this case.

[00:11:05] Speaker 00:
And also...

[00:11:09] Speaker 00:
I don't know if you want to talk about the actual prescribing practices of Dr. Jarkasee and how they failed to satisfy any of the requirements of the Controlled Substances Act.

[00:11:19] Speaker 00:
As a closed regulatory system, it is critical to have the closed regulatory system to prevent abuse and diversion of controlled substances.

[00:11:27] Speaker 00:
And that's why he was obligated to comply with state, local, and federal regulations and statutes.

[00:11:35] Speaker 00:
He failed to satisfy the California standard of care

[00:11:39] Speaker 00:
And it was interesting in the prior argument, Judge Malloy, when you were talking about, well, isn't it important?

[00:11:44] Speaker 00:
I think your statement was something about, isn't it important that the physician take a physical history from the patient?

[00:11:51] Speaker 00:
And that's one of the things that Dr. Robodi did not do in treating his patients.

[00:11:57] Speaker 00:
He would not take a history.

[00:11:59] Speaker 00:
At least four times in the transcript when he testified, he stated that he did not maintain records because he had a photographic memory.

[00:12:09] Speaker 00:
Being able to maintain records in your head does not satisfy your obligations under California or federal law with respect to controlled substances.

[00:12:17] Speaker 00:
It's important for future practitioners to know what treatment you had.

[00:12:20] Speaker 00:
It's important for you to be able to maintain the records of why you are treating the patient this way.

[00:12:27] Speaker 00:
He didn't do, there were a number of things that he should have done when giving out these serious controlled substances, many scheduled to opioids, dangerous combinations of drugs, high dosage amounts of drugs, he didn't have urine drug tests, he would not screen his patients, excuse me again, to make sure that

[00:12:50] Speaker 00:
the drugs they were prescribed that they were taking, that they weren't taking illicit substances, or that the urine drug test would show that they were not taking the drugs they were prescribed.

[00:12:59] Speaker 00:
And when he checked the CURE system, which is the California Prescription Drug Monitoring Program, and discovered that at least two of his patients were receiving identical drugs, a suboxone, which is used to treat people with opioid dependence disorder,

[00:13:16] Speaker 00:
He continued to prescribe that and other controlled substances to those patients.

[00:13:20] Speaker 00:
So the administrator properly found in weighing the factors under 21-823 of his experience in dispensing controlled substance, his compliance with state and federal law, that he had failed to satisfy

[00:13:37] Speaker 00:
the administrator's requirement that he show that he could be entrusted with a registration going forward and revocation was appropriate.

[00:13:44] Speaker 04:
Can I ask you to go back to the point you made at the very beginning about exhaustion?

[00:13:50] Speaker 04:
If he had raised his argument that the ALJs are unconstitutionally appointed, would either the ALJ or the administrator have been able to provide any relief based on that argument?

[00:14:03] Speaker 00:
Well, let me clarify.

[00:14:04] Speaker 00:
What your honor just said is if he had challenging appointment, which was done.

[00:14:10] Speaker 04:
Not the appointment, the restriction on removal.

[00:14:14] Speaker 00:
Because when the appointment issue was raised, the litigants did obtain relief.

[00:14:20] Speaker 00:
And as the court is aware of Lucia after Lucia, they did obtain relief.

[00:14:25] Speaker 00:
All of the ALJs were then properly appointed.

[00:14:28] Speaker 00:
If Dr. Robadi had challenged the removal part of the ALJ in this situation, no, because again, they

[00:14:36] Speaker 00:
they do not have two levels of removal protection, which is what would make it unconstitutional under the take care clause.

[00:14:43] Speaker 04:
Well, OK, so that's an argument that, I mean, your argument is that his claim fails on the merits here.

[00:14:49] Speaker 04:
And I guess you're saying if he had raised it there, it would have failed on the merits there.

[00:14:52] Speaker 04:
But my question is, would the ALJ, even if we assume for a moment, suppose that the argument is meritorious, could the ALJ have done anything about it?

[00:15:04] Speaker 04:
Does the ALJ have authority to declare the statute unconstitutional?

[00:15:08] Speaker 00:
Well, the ALJ conducts pre-hearing procedures akin to what you would have in a regular court where they follow the rules of evidence, they'll call witnesses, they have motions to eliminate, motions to suppress, they can raise other legal claims.

[00:15:25] Speaker 00:
I had a recent case where some patients moved to intervene to participate in the hearing.

[00:15:30] Speaker 00:
So the ALJ will deal with all of those issues that come up and then

[00:15:35] Speaker 00:
will make a recommendation to the administrator, and the administrator would rule on that.

[00:15:40] Speaker 04:
Also- And that could include declaring the statute unconstitutional?

[00:15:44] Speaker 00:
Yes.

[00:15:45] Speaker 00:
And then also, I'm not certain because it hasn't been raised in the DEA, but it would seem like under the axon line of cases that they may also be able

[00:15:55] Speaker 00:
to obtain relief in district court if the administrator, if the ALJ or the administrator ruled against that.

[00:16:03] Speaker 00:
But again, they did not raise it here.

[00:16:07] Speaker 04:
Right.

[00:16:08] Speaker 04:
So we have a number of cases, and the Supreme Court does too, that say that you don't necessarily have to exhaust constitutional challenges before the agency.

[00:16:20] Speaker 04:
So why is this not like those cases?

[00:16:25] Speaker 00:
Because that would be like the cases that the court would be familiar with in in criminal cases where you're not allowed to go through the proceeding.

[00:16:33] Speaker 00:
Some of the cases refer to this as a gotcha remover a gotcha.

[00:16:39] Speaker 00:
attempt, which is they go through the proceeding, and then if they obtain an unfavorable result, then they say, oh, by the way, this was unconstitutional, or you were not properly subjected.

[00:16:53] Speaker 01:
But we've distinguished between procedural due process constitutional challenges

[00:16:58] Speaker 01:
and challenges such as this, which are based on the structure.

[00:17:01] Speaker 01:
So mostly in immigration cases, we say you don't have to exhaust a constitutional challenge that's not based in denial of due process in the proceeding.

[00:17:12] Speaker 01:
So again, do you believe that the administrator had the authority to unilaterally declare the statute or this mechanism unconstitutional?

[00:17:25] Speaker 01:
What's your authority for that?

[00:17:27] Speaker 00:
I don't have authority for the administrator's ability.

[00:17:30] Speaker 01:
And that's been our logic, is that the agency can't declare a statute or the procedure unconstitutional in and of itself.

[00:17:38] Speaker 00:
But the agency could at least give a decision on that, which could then be reviewed by an Article III court to say either your motion to dismiss for having an unconstitutionally appointed unconstitutionally

[00:17:55] Speaker 00:
ALJ, who is not subject to removal under the take care clause.

[00:18:00] Speaker 00:
And then that could go to an Article III court for a ruling on the constitutionality.

[00:18:06] Speaker 00:
But to not raise the issue at all, to go through the proceeding and then afterwards, after the ALJ's recommendation, after the administrator's adoption of that, after the final order, to then come in and say, by the way, this was

[00:18:23] Speaker 00:
this is unconstitutional, and the ALJ had no authority to hear this, seems to be not a constitutional or not a fair process.

[00:18:37] Speaker 00:
I mean, he was given due process.

[00:18:39] Speaker 00:
He had a hearing.

[00:18:40] Speaker 00:
He had the ability to call witnesses, filed motions, testified, cross-examined everybody.

[00:18:48] Speaker 00:
I respectfully request you to deny the petition.

[00:18:50] Speaker 00:
Thank you.

[00:18:51] Speaker 04:
Thank you, Ms.

[00:18:51] Speaker 04:
Gaye.

[00:18:58] Speaker 03:
Without belaboring the point, as in Wang v. Reno, that's a Ninth Circuit case.

[00:19:04] Speaker 03:
It clearly states that the Bureau of Immigration Appeals has no authority to hear constitutional claims, and therefore there's no exhaustion requirement.

[00:19:11] Speaker 03:
I simply bring that up, even though the court already noted it, that there is no difference in the structure or the procedure, essentially, of the DEA tribunal nor an immigration court.

[00:19:24] Speaker 03:
Last time I was here, I was told I had 10 minutes, but I didn't have to use it all.

[00:19:28] Speaker 03:
So absent questions, that's all.

[00:19:31] Speaker 04:
Thank you very much.

[00:19:32] Speaker 04:
Thank you.

[00:19:32] Speaker 04:
Thank both counsel for their arguments.

[00:19:34] Speaker 03:
The case is submitted.