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Xiulu Ruan and John Patrick Couch v. United States

Paid petition · United States Court of Appeals for the Eleventh Circuit, No. 17-12653 · judgment January 5, 2023

Certiorari denied · November 6, 2023
Pre-decision estimate: 16% cert probability (95% interval 11%–23%)

Before the decision, about 4× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition).

Question presented

In Ruan v. United States, 142 S. Ct. 2370 (2022) (App., infra, 19a-54a), this Court held that a physician may be convicted under 21 U.S.C. § 841(a)(1) of the Controlled Substances Act (“CSA”) only if the government proves that the defendant “knew or intended that his or her conduct was unauthorized.” Id. at 2382 (App., infra, 37a) (emphasis added). The Court remanded Petitioners’ case to the Eleventh Circuit, and Dr. Shakeel Kahn’s companion case to the Tenth Circuit, so that those courts could consider whether the jury instructions comported with the “except as authorized” requirement of the statute. The question presented, on which the circuits are divided, is whether, in a CSA jury instruction, 21 C.F.R. § 1306.04(a) may replace the statute’s “except as authorized” requirement, thereby permitting the jury to convict a physician simply because she knew that her prescription would fall outside the “usual” course of medical practice or would be regarded as “illegitimate” by most other doctors, and thus empowering a federal agency to create a felony offense that Congress itself did not enact. (i)

Counsel of record

For petitioner
Lawrence Saul Robbins
Friedman Kaplan Seiler Adelman & Robbins LLP

For respondent
Elizabeth B. Prelogar
Solicitor General

Case

Conference history
Distributed for 1 conference

Amicus briefs
2 cert-stage

Proceedings

  1. Nov 06 2023
    Petition DENIED.
  2. Oct 18 2023
    DISTRIBUTED for Conference of 11/3/2023.
  3. Oct 13 2023
    Reply of petitioners Xiulu Ruan, et al. filed.
    Main DocumentProof of ServiceCertificate of Word Count
  4. Sep 29 2023
    Brief of respondent United States in opposition filed.
    Main DocumentCertificate of Word Count
  5. Aug 28 2023
    Motion to extend the time to file a response is granted and the time is further extended to and including September 29, 2023.
  6. Aug 24 2023
    Motion to extend the time to file a response from September 1, 2023 to September 29, 2023, submitted to The Clerk.
    Main Document
  7. Jul 27 2023
    Motion to extend the time to file a response is granted and the time is further extended to and including September 1, 2023.
  8. Jul 26 2023
    Motion to extend the time to file a response from August 4, 2023 to September 1, 2023, submitted to The Clerk.
    Main Document
  9. Jul 05 2023
    Amicus brief of Physicians Against Abuse not accepted for filing. (July 14, 2023 - corrected copy to be filed)
  10. Jul 05 2023
    Brief amicus curiae of Physicians Against Abuse filed (Docketed July 25, 2023).
    Main DocumentCertificate of Word CountProof of Service
  11. Jul 03 2023
    Brief amici curiae of Association of American Physicians, et al. filed.
    Main DocumentProof of ServiceCertificate of Word Count
  12. Jun 23 2023
    Motion to extend the time to file a response is granted and the time is extended to and including August 4, 2023.
  13. Jun 22 2023
    Motion to extend the time to file a response from July 5, 2023 to August 4, 2023, submitted to The Clerk.
    Main Document
  14. May 31 2023
    Petition for a writ of certiorari filed. (Response due July 5, 2023)
    PetitionCertificate of Word CountProof of Service