T.J. McNichol v. Drug Enforcement Administration

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15292
Non-Argument Calendar
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Agency No. 12-14
T. J. MCNICHOL,
Petitioner,
versus
DRUG ENFORCEMENT ADMINISTRATION,
Respondent.
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Petition for Review of a Decision of the
Drug Enforcement Agency
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(October 17, 2013)
Before TJOFLAT, DUBINA, and PRYOR, Circuit Judges.
PER CURIAM:
This is a petition for review of a final order of the United States Drug
Enforcement Administration (“DEA”). An Administrative Law Judge (“ALJ”)
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issued a report and recommended ruling in favor of Dr. T. J. McNichol (“Dr.
McNichol”). The DEA Administrator rejected that ruling and revoked Dr.
McNichol’s DEA registration.
An agency’s factual findings are conclusive “if supported by substantial
evidence.” 21 U.S.C. § 877. Substantial evidence is “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Moore v.
Barnhart, 405 F.3d 1208, 1211 (11 th Cir. 2005). It is “more than a scintilla, but
less than a preponderance.” Hale v. Bowen, 831 F.2d 1007, 1011 (11 th Cir. 1987)
(internal quotation marks omitted). An administrative agency’s finding is
supported by substantial evidence even if “two inconsistent conclusions [could be
drawn] from the evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607,
620, 86 S. Ct. 1018, 1026 (1966); see also Universal Camera Corp. v. NLRB, 340
U.S. 474, 488, 71 S. Ct. 456, 465 (1951) (agency decision must be upheld even if
court would have reached different conclusion under de novo review). The
“limited” substantial evidence review “precludes deciding the facts anew, making
credibility determinations, or re-weighing the evidence.” Moore, 405 F.3d at 1211;
see also Dyer v. Barnhart, 395 F.3d 1206, 1211 (11 th Cir. 2005).
A court may set aside the DEA’s final decision only if is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
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U.S.C. § 706(2)(A). “This standard is exceedingly deferential.” Sierra Club v.
Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (quoting Fund for Animals,
Inc. v. Rice, 85 F.3d 535, 541 (11 th Cir. 1996)). This court will not overturn an
agency decision so long as the agency “examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action including a rational connection
between the facts found and the choice made.” Motor Veh. Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866 (1983) (internal
quotation marks omitted).
To determine whether an agency decision was arbitrary and capricious, the
reviewing court considers whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment. Id. at 43,
103 S. Ct. at 2866-67. A court will not overturn an agency decision unless the
agency has “relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference in view or the product
of agency expertise.” Miccosukee Tribe of Indians of Fla. v. United States, 566
F.3d 1257, 1264 (11th Cir. 2009) (quoting Alabama Tombigbee Rivers Coal. v.
Kempthorne, 477 F.3d 1250, 1254 (11 th Cir. 2007)).
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After reviewing the record in this case, we conclude that substantial
evidence supports the agency’s decision to revoke Dr. McNichol’s DEA
registration. The record clearly demonstrates that Dr. McNichol repeatedly
prescribed controlled substances without a legitimate medical purpose and outside
the usual course of his professional practice. Moreover, the government
established by a preponderance of the evidence a prima facie case that revocation
was in the public interest, and Dr. McNichol did not present sufficient mitigation to
rebut that case. Specifically, the administrator properly relied on uncontested
evidence that Dr. McNichol illegally prescribed controlled substances to four
undercover law enforcement officers.
Because the record supports that the administrator considered all aspects of
the evidence in light of the applicable statutory factors and committed no clear
error of judgment in its decision, its decision was not arbitrary and capricious.
Finally, we also agree with the administrator’s conclusion that Dr. McNichol’s
continued registration would be inconsistent with the public interest. For the
foregoing reasons, we deny the petition for review.
PETITION DENIED.
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