court today objecting to the arbitrary and capricious revocation of her certificate of registration by the drug enforcement agency this case boils down to  point your honor i believe that this court should concern itself with the fact that dr fry had her registration stripped from her because she complied with the california state law eleven three six two point five that the health and safety code otherwise known as the compassionate use act and she was complying with conant the mccaffrey she was she had a federally recognized right to be able to recommend marijuana and conclusion that it was untimely it's right that technically what we're reviewing it's my understanding that we are reviewing the decision of the d e a s to revoke her regular certificate of registration now  santana timely him somehow got lost in the mail or something like that right that's correct and the agency deny that in its denial told her that if she had a declaration or affidavit proof of that and david nick's declaration regarding the request for the hearing and why we had already requested a hearing the da knew that dr fry wanted a hearing the question was not whether or not she wanted a hearing the administrator knew she wanted a hearing the d e a new she objected to being deprived of her right to prescribe medicines because of her compliance with the health and safety code eleven three six two point five and now i think there are two issues before the court did the record in front of the d e a s in the straighter support the administrators conclusions we believe that it was clear error that the administrator was was using as a basis for every conclusion the d e a s of vendetta against valid california law permitting the use of medicinal marijuana and permitting doctors to recommend the use of marijuana which is all dr fry ever did and as a matter of fact the record in front of the administrator w overwhelming that when people came to dr fry's office she and her lawyer husband were educate them about the state law rights that they were enjoying as well as the complications due to the fact that federal law still regards marijuana to be akin to heroin or crack cocaine methamphetamine please listen to the question ok to look at that but what's in front of us now was the decision of the d a to refuse to reopen the earlier closed proceeding why should we do that your hon did we wouldn't examine the substance of the reasons for the initial revocation it in our briefly side of the case called humphrey which indicates that the entire record of a was before the the d n a administrator and should have been taken into account by the d a administrator in our it's our contention regarding the time t nix declaration as well as the fact that her appeal to this court was premised upon the fact that she wanted to hearing those two facts should have persuaded the d n a administrator to reopen the to the to the effect that she wanted a hearing i think the panel fully understand your position on the substantive issue you have anything to do our review the decision to fail to reopen your was actually acting in the public interest because she was acting in conformity with federal law on this and state law act on the substance you have anything to to help the panel reach a decision listen to the question palin reach a decision on whether the d e a should be instructed to go ahead and reopen the proceedings not the substance but whether they should reopen the proceedings other than the fact that good morning your honors me please the court many mr james todd counsel for the government this court should affirm the jeopardy administrators denial of dr fry's second motion to reopen the ministry of record for two reasons first and foremost dr fry failed to present any arguments about new evidence in front of the da and cannot now raise them for the first time in front of this court and second dr frye failed to present any actual new evidence before the d n a and cannot now is asked this court to consider extra record evidence the bulk of dr fries second request to reopen and a large part of the brief before this panel are devoted to the idea of newly raised evidence dr fry will demonstrate a hearing if a hearing is granted them and dr high can demonstrate should a hearing be granted dr frye will demonstrate if granted a hearing dr frye can demonstrate and the substance of that argument before the da and in large part of the brief before this court concerns whether or not the d e a s actions violated the permanent injunction entered in coney versus mccaffery which i believe this court might be familiar with but i'd be happy to view the details however the earlier panel of this court has already rejected dr fry's attempts to reopen the record based on newly raised evidence for reasons of both starry decisis and issue preclusion dr fry cannot now reopen the ministry of record based on newly raised evidence she introduced in her second motion to reopen even sort of record with respect to starry decisis this court is bound by the earlier panel's ruling on this point with respect to issue preclusion the issues raised in dr crys second request to reopen or almost identical to those raised in her first briefed to the earlier panel the issue was actually litigated in front of the earlier panel use the word almost there not quite the same thing there are a letter to gratian attached to the second request second the decorations attached to the second motion reopen about which no arguments for made were those made by dr frye herself and her husband that they asked their counsel to secure a hearing they did not in fact state in those declarations that a hearing request was filed with the ministry or second they did not attach the declaration of attorney mr neck who stated that he filed a written request for a written hearing the d a regulations are very clear on what is required to to request a hearing a tape when do you excuse that those requests once the da every excuse those requests based on an effective assistance of counsel i don't believe that in this kind of civil administrative proceeding the issue of ineffective assistance of counsel has come before that and they've had to consider that matter to you know i'm not aware of any situation where they have excused it i do think that the da has a right so in this court to send him back and asked provide affidavit this court i think was very precise in what evidence and what argument dr fry should have brought before the t e a and in its denial of dr fry's second petition to reopen again the d bent over backwards to say we are very aware of what the ninth circuit set out as what might be sufficient and we're very aware of where as it falls short and in fact made credibility determinations that the evidence that dr fry chose to put forward did not in any way suggest that a request for a hearing was filed i think my question was someone different i mean in other administrative context and i gather then i understand you would have no reason to this but in other administrative contexts the agency develops rules and in fact of assistance of counsel as an excuse for late filing and they have standards that they enforce you don't know whether or not the da has such standards and if they've applied them to grant her the registration without you know pause of course there wouldn't be hearing in that situation but if there was any recommendation from the office of diversion control that her question slightly differently than in other contexts and i understand you would have no reason to know this when we're faced with a situation what we review is the decision of the agency not reopen and if someone tenders and say my my attorney was ineffective i asked can you help us at all with how the da handles these other than what you said well because what i what i'm seeing you seem to be saying argument is there is no excuse unlike other administrate of agencies to da will not could have considered along with any evidence used to support those arguments there is no indication that that happened here there is merely a single mention in dr price second request to reopen i understand she engaged an attorney that honor and in fact invited dr for me to file a renewed request with an affidavit attached demonstrating the circumstances is that correct that's correct your honor and when the second request was filed there was no such declaration or effort there yes that's correct your honor and no argument that is what the our prior panel reviewed with what in fact the prior panel reviewed was a request to reopen that had no decorations attached to it of any sort but by the time the decision came before the panel the declaration had been filed as part of the the appellee appellant excerpts of records had that declaration been sufficient as a basis to reopen the record that panel could have in fact we mandated the decision at that time and it suggested that the agency reopen the record instead that panel affirms the agency's decision not to reopen for a new license and then they'll say this is denied because you have been found who had been unlawfully distributing marijuana and your license was revoked for that reason and da had to reexamine answer earlier ruling well i think that it is true that if the office of diversion control work to recommend denial of a new application in dr fireworks or request you hearing there wouldn't fact be evidence your hearing  on it's evidence of the might be confined to whether or not it was arbitrary for the da to rely on its earlier final decision a decision here so i don't think there's any suggestion that would rely in the earlier final decision your honor i think at that time they would put on witnesses to support their findings of fact and that dr fry would put on her witnesses and subject the d a s witnesses to cross examination i guess for speculating on what to do so i think i think that's i think i'm right your honor but i do think that then if in light of everything that transpired at a hearing the da were to still issue a final decision and dr frye work to timely file an appeal to this court again and then we would be reviewing the underlying merits of that