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Akhtar-Zaidi v. Drug Enforcement Administration

United States Court of Appeals, Sixth Circuit

November 15, 2016

Syed Jawed Akhtar-Zaidi, M.D., Petitioner,
Drug Enforcement Administration, Respondent.

         On Petition for Review of a Final Order of the Drug Enforcement Administration. No. 14-2.

          Lena D. Watkins, Anita J. Gay, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Syed Akhtar-Zaidi, Cleveland, Ohio, pro se.

          Before: CLAY, ROGERS, and KETHLEDGE, Circuit Judges.


          PER CURIAM.

         Syed 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).

         From 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).

         Dr. 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.

         The 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.

         Dr. 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 discretion.

         The 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).

         A court 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 (1938)).

         Under 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 ...

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