Dr. Mаrion Fry petitions for review of the Drug Enforcement Administration’s (DEA) final order and the denial of her request for reconsideration of that final order and to reopen the proceedings. We dismiss the request for review of the final order because we lack jurisdiction, and affirm the DEA’s denial of Dr. Fry’s motion to reopen the proceedings.
I. BACKGROUND
In March 2002, the DEA served Dr. Fry with an Order to Show Cause why it should not revoke her certificate of rеgistration to dispense controlled substances, because her continued registration would be inconsistent with the public interest.
See
Controlled Substances Act, 21 U.S.C. §§ 801
et seq.
(CSA). The DEA did not receive a hearing request from Dr. Fry in response to this March 2002 order, and on December 13, 2002, the agency entered a final order revoking Dr. Fry’s DEA certificate of registration.
1
The final order was
The DEA argues that the petition fоr review is untimely under the thirty-day time limit contained in 21 U.S.C. § 877 and this court does not have jurisdiction to consider Dr. Fry’s challenge to the final order. The DEA asserts that we do have limited jurisdiction under section 877 to review the DEA’s denial of Dr. Fry’s January 10, 2003, request to reopen the proceedings, but only to the extent that the request was unlawfully denied.
Dr. Fry argues that she asked her then-attorney to respond to the March 2002 order by requesting a hearing, and was under thе impression that after her attorney made that request, the DEA would set a hearing before revoking her certificate. Dr. Fry did not know that a hearing had not been requested until she received notice of the final order in December. Dr. Fry contends that the proceedings should be reopened because she has thus far been deprived of the opportunity to be heard.
II. DISCUSSION
The narrow parameters of our review аre set by the Administrative Procedure Act, 5 U.S.C. §§ 551
et seq.
(APA), and this court may not substitute its judgment for the agency’s.
Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Bureau of Land Mgmt.,
Federal Rule of Appellate Procedure 15(a) provides that “[r]eview of an agency order is commenced by filing, within the time prescribеd by law, a petition for review.” In 21 U.S.C. § 877, the CSA sets forth the prescribed time limits for review of final orders issued by the DEA. Section 877 provides,
All final determinations, findings, and conclusions of the Attorney General under this subchapter shall be final and conclusive decisions of the matters involved, except that any person aggrieved by a final decision ... may obtain review of the decision in the United States Court of Appeals for the District of Columbiа or for the circuit in which his principal place of business is located upon petition filed with the court and delivered to the Attorney General within thirty days after notice of the decision.
The issue of whether the thirty-day filing deadline is a jurisdictional requirement is one of first impression in the Ninth Circuit. Because we have held that similar time requirements for filings are jurisdictional,
e.g., Felt v. Dir., Office of Workers’ Comp. Programs,
As the thirty-day time limit contained in 21 U.S.C. § 877 is jurisdictional, we cannot consider the merits оf Dr. Fry’s case. Dr. Fry filed her petition for review on January 22, 2003, thirty-two days after notice of the final order was published in the Federal Register. Publication in the Federal Register is the affirmative act that bеgins the running of the thirty-day time limit. 21 C.F.R. § 1316.67. Dr. Fry was clearly informed of these dates and filing deadlines in the cover letter attached to the December 13, 2002, final оrder. Therefore, we do not have jurisdiction to consider the merits of the agency’s final order.
The government asserts that we do, however, have limited jurisdiction to review whether the DEA’s refusal to reopen the proceedings was lawful. We review an agency’s decision not to reopen administrative proceedings for an abuse of discretion.
Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs,
“When the [agency] reopens a proceeding for any reason and, after reconsideration, issues a new and final order ... that order — even if it merely reaffirms the rights and obligations set forth in the original оrder — is reviewable on its merits.” Id. But, if the agency refuses to reopen, we may only review “the lawfulness of the refusal.” Id. The Court in Locomotive Engineers pointed out that, in order to get the record reopened, a petitioner may not simply argue that the agency made a material error in the original agency decision; instead, she must bring forth new evidence or changed circumstances. Id.
Dr. Fry cannot allege any “new” evidence here. She only alleges evidence she could have introduced at a hearing had she timely rеquested one. This type of evidence is not “new” evidence.
See Friends of Sierra R.R., Inc. v. Interstate Commerce Comm’n,
The only possible basis for arguing the availability of “new” evidence is found in an affidavit from Dr. Fry’s first attorney in which he asserts he timely requested a hearing by mailing such a request to the DEA. However, the government points out that this affidavit was executed on January 24, 2003, two days after Dr. Fry’s petition for review was filed, and well after the January 10 “motion” to reopen the record. The agency cannot have unlawfully refused to reopen the record based upon information it was not given. Under these circumstances, 2 the DEA did not abuse its discretion.
III. CONCLUSION
We have no jurisdiction to review Dr. Fry’s petition for review of the merits of the final order because she did not file her petition within the jurisdictional thirty-day time limit contained in 21 U.S.C. § 877. Furthermore, the DEA did not abuse its
AFFIRMED.
Notes
. The DEA certificate of registration allows Dr. Fry to dispense prescriptions for controlled substances as allowed by law. Marijuana is currently classified by the federal government as a schedule I controlled substance, 21 U.S.C. § 812(c), whiсh can only be dispensed in federally approved research projects. See 21 U.S.C. § 823(f). However, the State of California has enacted a law which permits physicians to recommend medicinal marijuana in appropriate medical circumstances. Cal. Health & Safety Code § 11362.5.
. We are not unsympathetic to Dr. Fry’s plight; we are simply unwilling to create an appellate remedy where there is none. As we noted at oral argument, however, Dr. Fry can likely file another motion for reconsideration, but this time support the motion with the attorney’s affidavit.