Petition for Review of a Final Order of the Drug Enforcement
Administration. No. 14-2.
D. Watkins, Anita J. Gay, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Akhtar-Zaidi, Cleveland, Ohio, pro se.
Before: CLAY, ROGERS, and KETHLEDGE, Circuit Judges.
Jawed Akhtar-Zaidi, M.D. (Dr. Zaidi), an Ohio physician
proceeding pro se, seeks review of a final decision of the
Administrator of the Drug Enforcement Administration (DEA)
affirming an immediate suspension order (ISO) suspending the
certificate of registration that permitted him to dispense
controlled substances. Dr. Zaidi also seeks to proceed in
forma pauperis for purposes of this review. See Fed.
R. App. P. 24. This case has been referred to a panel of the
court that, upon examination, unanimously agrees that oral
argument is not needed. See Fed. R. App. P. 34(a).
September 2012 until May 2013, three undercover DEA agents
posed as patients under Dr. Zaidi's care as a part of an
investigation into Dr. Zaidi's controlled substances
prescription practices. As a result of this investigation,
the DEA Deputy Administrator suspended Dr. Zaidi's
controlled substances prescription privileges on the basis
that his continued registration posed an imminent danger to
the public health and safety. See 21 C.F.R. §
1301.36(e); 21 U.S.C. § 824(d). DEA agents also seized
controlled substances from Dr. Zaidi's offices. Dr. Zaidi
requested a hearing before an administrative law judge (ALJ).
Zaidi attempted to supplement his prehearing statement to
include additional witnesses after the time for doing so had
expired. The ALJ denied Dr. Zaidi's request. A two-day
hearing was conducted in December 2013. Dr. Zaidi then
submitted an offer of proof outlining what the testimony of
his additional witnesses, including his expert, employees,
and former patients, would have been. The ALJ recommended
that the ISO and seizure of controlled substances from Dr.
Zaidi's office be affirmed and that his registration be
revoked. Syed Jawed Akhtar-Zaidi, 80 Fed. Reg. 42,
962, 42, 986 (DEA July 20, 2015). Dr. Zaidi's
registration expired on June 30, 2014, and he has not
attempted to renew it.
Administrator affirmed the ISO and seizure of controlled
substances, but declined to adopt the ALJ's
recommendation to revoke Dr. Zaidi's registration,
finding that the issue was moot due to the expiration of Dr.
Zaidi's registration and his decision not to seek
renewal. Id. The Administrator found that the
government had satisfied its prima facie burden under 21
U.S.C. § 824 by showing that Dr. Zaidi's continued
registration was not in the public interest, basing its
finding on the conclusion that Dr. Zaidi prescribed
controlled substances outside the usual course of
professional practice without a legitimate medical purpose
and violated state and federal law by (1) prescribing
medication without patients' addresses, (2) overstating
the nature and extent of examinations conducted and pain
levels reported by patients, and (3) failing to comply with
state requirements relating to the treatment of chronic pain.
Syed Jawed Akhtar-Zaidi, 80 Fed. Reg. at 42, 962.
Zaidi now seeks this court's review, advancing six
arguments: (1) the ALJ arbitrarily and capriciously denied
him the opportunity to present testimony from an expert,
employees, and former patients; (2) there was insufficient
evidence to support the ISO; (3) the government failed to
make a prima facie showing that his continued registration
was inconsistent with the public interest; (4) his
prescriptions to the three undercover officers were not
outside the usual course of professional practice and did not
lack a legitimate medical purpose; (5) he did not falsify
medical records; and (6) the sanction imposed by the ISO,
which is effectively a revocation, is disproportionately
harsh. The government responds that substantial evidence
supports the Administrator's finding that Dr. Zaidi
repeatedly prescribed controlled substances in a manner
inconsistent with the public interest, and that issuance of
the ISO was a proper exercise of the Deputy
Administrator's decision 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). Review under this standard is "highly
deferential." Latin Ams. for Soc. & Econ. Dev.
v. Fed. Highway Admin., 756 F.3d 447, 464 (6th Cir.
2014). A court "is not to substitute its judgment for
that of the agency." Motor Vehicle Mfrs. Ass'n
of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983).
determines "whether the [agency] decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment." Id. The
Administrator "must 'examine the relevant data'
and the record must reflect 'a rational connection
between the facts found and the choice made.'"
Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005)
(quoting Motor Vehicle Mfrs. Ass'n., 463 U.S. at
43). The Administrator's factual findings are conclusive
if supported by substantial evidence. See 21 U.S.C.
§ 877. "Substantial evidence is more than a
scintilla of evidence but less than a preponderance . . .
." Brainard v. Sec'y of Health & Human
Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
the Controlled Substances Act, physicians who dispense
controlled substances are required to obtain proper
registration from the Attorney General. 21 U.S.C. §
822(a)(2). This registration can be suspended or revoked if a
registrant "has committed such acts as would render his
registration . . . inconsistent with the public
interest." 21 ...