[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-15034 ELEVENTH CIRCUIT
SEPTEMBER 25, 2007
________________________
THOMAS K. KAHN
CLERK
DEA Cert No. 03-8
JAYAM KRISHNA IYER, M.D.,
Petitioner,
versus
DRUG ENFORCEMENT ADMINISTRATION,
Respondent.
________________________
Petition for Review of a Final Order
of the Drug Enforcement Administration
________________________
(September 25, 2007)
Before BIRCH, BARKETT, and COX, Circuit Judges.
PER CURIAM:
On September 1, 2006, a Drug Enforcement Administration (“DEA”) Deputy
Administrator, following an Administrative Law Judge’s recommendation, ordered
that Petitioner’s certificate to prescribe drugs be revoked for prescribing drugs
without a legitimate medical purpose.
An agency decision to revoke a DEA certificate will be set aside if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). In determining whether Petitioner’s authority to
dispense controlled substances should be revoked, the DEA is required to consider
the following factors to determine if continued certification is against the public
interest:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting research
with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal, or local laws relating to
controlled substances.
(5) Such other conduct which may threaten the public health and safety.
21 U.S.C. § 823(f). The DEA held that factors 1 and 3 supported Petitioner, and
factors 2 and 4 weighed against her. Finally, the DEA held that factor 5 also weighed
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against Petitioner, since she did not acknowledge any wrongdoing. Balancing the
factors and according “dispositive” weight to factor 5, the DEA concluded that
Petitioner’s certificate should be revoked.
In considering Petitioner’s experience in dispensing controlled substances
under factor 2, the DEA identified only four visits by three undercover “patients,”
who were all attempting to make a case against her. The DEA failed to consider
Petitioner’s experience with twelve patients whose medical charts were seized by the
DEA, or with thousands of other patients. In short, the DEA did not consider any of
Petitioner’s positive experience in dispensing controlled substances. This is an
arbitrary and unfair analysis of Petitioner’s experience. We vacate the order of the
DEA Deputy Administrator and remand the case for reconsideration of this factor,
where the DEA should pay particular attention to the entire corpus of Petitioner’s
record in dispensing controlled substances, not only the experience of undercover
officers. The five factors should accordingly be re-balanced.
ORDER VACATED AND CASE REMANDED TO RESPONDENT.
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