Humphreys v. DEA

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

9-17-1996

Humphreys v. DEA

Precedential or Non-Precedential:

Docket 96-3099

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-3099

EARL A. HUMPHREYS, M.D.,

Petitioner

v.

DRUG ENFORCEMENT ADMINISTRATION,

Respondent.

On Appeal from an Order of the Drug Enforcement Administration dated

January 23, 1996

(AH 16752)

Argued July 26, 1996

BEFORE: BECKER, STAPLETON, AND MICHEL, Circuit Judges.

(Opinion Filed September 17, 1996)

Robert A. Felkay, Esquire (argued)

John A. Tumolo, Esquire

Professional Office Building

430 Blvd. Of The Allies

Pittsburgh, PA 15219

Attorney for Earl A. Humphreys, M.D.

John C. Keeney, Esquire,

Theresa M.B. Van Vliet, Esquire,

Hope P. McGowan, Esquire (argued)

Narcotic and Dangerous Drug Section

Criminal Division

Post Office Box 27312

Washington, D.C. 20038

Attorneys for Drug Enforcement Administration

OPINION OF THE COURT

MICHEL, Circuit Judge.

Earl A. Humphreys, M.D. ("Humphreys") appeals from an order of

the Drug Enforcement

Administration ("DEA"), dated January 23, 1996, in which the Deputy

Administrator of the DEA ordered that

Humphreys' DEA certificate of registration be revoked and any pending

application for renewal of the registration

be denied. Earl A. Humphreys, M.D.; Revocation of Registration, 61 Fed.

Reg. 2840 (1996). Because the DEA

abused its discretion in failing to consider Humphreys' privacy defense

and, on the present record, arbitrarily

revoked his registration, we vacate and remand.

BACKGROUND

Humphreys is a Pittsburgh doctor specializing in gastroenterology

and internal medicine and who, prior

to this proceeding, had practiced for over 35 years without any

disciplinary actions being taken against him. On

April 12, 1995, a Deputy Assistant Administrator of the DEA issued to

Humphreys an Order to Show Cause why

the DEA should not revoke Humphreys' certificate of registration under 21

U.S.C. § 824(a)(4) and deny any

pending application under 21 U.S.C. § 823(f) as being inconsistent with

the public interest. Specifically, the

Order to Show Cause alleged that "from the early 1980s to mid-1993,

[Humphreys] prescribed controlled

substances to at least four individuals without a legitimate medical need

and with knowledge that these individuals

were not the ultimate recipients of the controlled substances."

The DEA's action was precipitated by Humphreys' personal and

professional relationship with former

Pennsylvania Supreme Court Justice Rolf Larson ("Larson") and the criminal

investigation of Larson.

Humphreys acted as Justice Larson's personal physician for approximately

the past 20 years. In 1993, based on

the findings and recommendations of a grand jury, Larson was charged with

one count of conspiracy to commit

"Acquisition or Obtaining of Possession of a Controlled Substance by

Misrepresentation, Fraud, Forgery,

Deception, or Subterfuge" and numerous other violations of law. Humphreys

was named as an unindicted co-

conspirator in the conspiracy count and received immunity in return for

his testimony against Larson.

The criminal conspiracy charge against Larson, and DEA's

regulatory investigation of Humphreys,

stemmed from Larson's attempts to keep his mental health problems out of

public sight. Beginning in the 1960's,

Larson visited psychiatrists and psychologists for the treatment of

clinical depression and anxiety. These doctors

prescribed various tranquilizers and antidepressants, which Larson paid

for out of his own pocket in order to

preserve his privacy. Beginning in 1981, however, Larson revised his

method of assuring his privacy: he asked

Humphreys to prescribe various controlled drugs for Larson in the name of

certain of Larson's employees

(secretaries and a law clerk). From the early 1980's to mid-1993,

Humphreys wrote approximately 34

prescriptions for drugs in this manner, including prescriptions for

Valium, Diazepan, Ativan, and Serax. It is

undisputed that the individuals named on the prescriptions always gave the

prescription drugs to Larson and did

not take the medications themselves or resell them. It is also undisputed

that Humphreys was aware of Larson's

diagnosed condition, that he believed each medication he prescribed was

for an appropriate medical purpose, and

that he prescribed the substances in appropriate medical dosage amounts

and at acceptable time intervals.

Moreover, although Humphreys did not examine Larson each time he

prescribed drugs, Humphreys did examine

Larson before the first prescription and approximately every six months

thereafter. Although Humphreys was

aware that Larson was continuing to see other doctors, Humphreys was not

aware of any other medications

prescribed by Larson's other doctors and did not attempt to coordinate his

prescriptions with those of these other

doctors. Humphreys received no money for writing these prescriptions.

After receiving the Order to Show Cause, Humphreys and his

attorney each filed a response to the

Order. Humphreys' primary defense was that, by prescribing the medication

in the names of Larson's close

associates, he was attempting to protect Larson's privacy in a manner

common and acceptable in standard medical

practice for famous patients with mental conditions. Humphreys

waived his right to a hearing, as he was recovering from a stroke.

On January 23, 1996, the Deputy Administrator entered his Final

Order, based on the investigative

record and Humphreys' written statement. The Deputy Administrator

acknowledged that he could revoke

Humphreys' registration only if continued registration would be

inconsistent with the public interest pursuant to

the five factors set forth in 21 U.S.C. § 823(f). The Deputy

Administrator considered, discussed and relied upon

each of the five factors except for factor three – Humphreys' conviction

record under Federal or State laws

relating to controlled substances, which, because he had none, was not a

relevant factor – and, based upon these

factors, determined that the public interest would be best served by

revoking Humphreys' registration. The

Deputy Administrator did not discuss, and apparently did not consider,

Humphreys' privacy defense. Humphreys

appealed, and this court granted a stay of the Order pending our

disposition of this appeal. We have jurisdiction

to hear this appeal under 21 U.S.C. § 877 (1994).

ANALYSIS

The Standard of Review

Agency decisions, such as the Deputy Administrator's Order, may

be set aside only if arbitrary,

capricious, an abuse of discretion or otherwise not in accordance with the

law. 5 U.S.C. § 706(2)(A) (1994). "As

a reviewing court, we must accord proper deference to the DEA's expertise

but must nonetheless make a

'searching and careful inquiry' of the record to determine whether the

agency's decision was based on a

consideration of the relevant factors and whether there was a clear error

of judgment." Trawick v. DEA, 861

F.2d 72, 76 (4th Cir. 1988) (affirming revocation of registration)

(citation omitted).

The Regulatory Framework

The Controlled Substances Act, as amended by the Dangerous Drug

Diversion Control Act of 1984, Pub.

L. No. 98-473, Title II, § 511, 98 Stat. 2073, requires that any person

who dispenses controlled substances must

first obtain a certificate of registration from the Attorney General. 21

U.S.C. §§ 822(a), 823(f) (1994). The

Attorney General has delegated the authority to deny, revoke or suspend

registrations to the Administrator of the

DEA. 21 U.S.C. § 824 (1994); 28 C.F.R. § 0.100(b).

Prior to 1984, the DEA could revoke a registration for only three

reasons: (1) falsification of an

application; (2) felony conviction related to controlled substances; and

(3) suspension, revocation or denial of a

state license. In 1984, with the enactment of the Dangerous Drug

Diversion Control Act, Congress added a

fourth reason for which a registration could be revoked, namely, a finding

that the physician had committed "such

acts as would render his registration under section 823 of this title

inconsistent with the public interest as

determined under such section . . . ." 21 U.S.C. § 824(a) (1994). In

determining whether registration would be

inconsistent with the public interest, the DEA must consider the following

factors:

(1) The recommendation of the appropriate State licensing

board or

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) (1994). The five factors are independent, and the

Deputy Administrator may revoke a

registration based on one factor or a combination of several factors.

Henry J. Schwartz, M.D., 54 Fed. Reg.

16,422, 16,424 (1989).

The DEA bears the burden of proving that registration would not be in

the public interest. See Shatz v.

United States Dep't of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989) ("We

think the burden of persuasion and

production on the issue whether registration would be in the public

interest was correctly placed on the

Administrator as an initial matter. Once the Administrator produced

evidence of the state medical board's

actions, the DEA investigation and the drug-related felony conviction, the

burden of production only then shifted

to Shatz to rebut this evidence.").

Applicability of the Statute to Humphreys and its Application

Humphreys raises two primary issues on appeal: whether 21 U.S.C. §

824(a) can apply to the facts of

this case and, if so, whether the DEA properly applied the five public

interest factors to his case and properly

considered his privacy defense.

Initially, we may easily dispose of Humphreys' contention that 21

U.S.C. § 824(a) was never meant to

apply to physicians in his circumstances. Citing Trawick, 861 F.2d at 76,

Humphreys argues that the legislative

history of the 1984 amendment indicates it was meant to apply only in

egregious cases and was specifically

directed to those physicians who prescribed controlled substances to

addicts, who then could either use the drugs

themselves or resell them in order to purchase different drugs, such as

heroin. Humphreys argues that his actions

did not fall within the category of egregious cases. Certainly, there is

no allegation here of sales to addicts.

However, Humphreys, while relying on selected language in the Trawick

opinion, has ignored not only

the holding of the Trawick decision, but other language as well. In

Trawick, a dentist was indicted on state felony

drug charges, including conspiracy to distribute and distribution of

cocaine, based on acts not related to his

patients. 861 F.2d at 73-74. The dentist pled guilty only to misdemeanor

possession of cocaine as part of a plea

bargain. Id. at 74. Following his conviction, the DEA revoked his

registration as being inconsistent with the

public interest. Id. The Court of Appeals noted that the legislative

history of the public interest standard was much

as Humphreys now suggests, but concluded that the dentist there could not

"avoid the plain statutory language of

the amendment merely by showing that Congress, in enacting it was largely

concerned with a situation different

from the instant case." Id. at 76. Reasoning that a court must uphold

any reasonable agency construction of a

statute it is entrusted to enforce, the court concluded it was reasonable

to interpret the statute to authorize

revocation based on a misdemeanor drug conviction. Id. at 75-76.

Likewise, here there is nothing unreasonable

about the DEA's interpretation of the statute as authorizing revocation

based on Humphreys' allegedly unlawful

and irregular prescription of controlled substances in the names of

individuals other than his patient, Larson. As

discussed below, however, the DEA's application of the statute to the

precise situation facing Humphreys is so

deficient as to be an abuse of discretion.

The Privacy Defense

In a combined discussion of factors two and four under 21 U.S.C. §

823(f), the two factors upon which

the Deputy Administrator relied most heavily, the Deputy Administrator

emphasized that Humphreys had engaged

in a course of conduct during approximately a 12-year period that clearly

violated federal drug prescribing

regulations. Specifically, the Deputy Administrator concluded that

Humphreys' conduct violated 21 C.F.R. §

1306.04(a), which provides that a prescription for a controlled substance

"must be issued for a legitimate medical

purpose by an individual practitioner acting in the usual course of his

professional practice." The Deputy

Administrator concluded that these factors weighed in favor of revoking

Humphreys' registration, as Humphreys'

long practice of issuing prescriptions in the names of individuals unknown

to him and not under his care would not

meet this criterion.

The central deficiency in the Deputy Administrator's decision is his

complete failure to discuss the one

and only defense raised by Humphreys: that prescribing antidepressants

and other such drugs for a famous patient

in the name of another individual in order to preserve the privacy of the

patient was, in fact, the "usual course" of

medical practice in circumstances such as these and that, therefore,

Humphreys did not violate the federal

regulation. Humphreys squarely and intelligibly raised this defense

before the Deputy Administrator, as before

us.

Specifically, Humphreys, too ill to appear in person, wrote in a

letter responding to the DEA Order to

Show Cause that "[t]he psychiatrist and the neurologist at the trial for

Justice Larson testified that they probably

would have done the same thing and might have even used the same

medications. They indicated that it is

common practice, especially in psychiatric patients, to do this."

Additionally, Humphreys' attorney wrote the

following:

Separate and apart from Dr. Humphrey's [sic] opinion is the

sworn testimony of Gerald

Sandson, M.D. given in the case of Commonwealth of Pennsylvania

v. Rolf Larson at

#9313844, in which this psychiatrist completely concurred with

the need for privacy in

the treatment of Justice Larson. . . . Testimony at trial

showed that psychiatric patients

suffer a stigma in society, and that public figures bear even

greater burden.

During the case of Commonwealth of Pennsylvania vs. [sic]

Larson, it was established

without contradiction, that on a daily basis, psychiatrists on

the staffs of at least

Allegheny General Hospital and the Western Psychiatric Institute

prescribed drugs in

names of people for whom the prescriptions were not intended

because privacy was an

essential part of the treatment of the patient. No prosecutions

were ever brought for

any of these doctors or hospitals.

Humphreys' attorney also asserted that the sworn testimony at the Larson

trial also established that privacy was an

essential part of Larson's treatment, that privacy was the reason the

drugs were prescribed in the names of others,

and that the manner and method of Larson's treatment were not inconsistent

with generally accepted medical

standards.

The Deputy Administrator apparently failed to consider any of this

evidence, stating instead only that "the

trial transcript from Justice Larson's trial was not a part of the

investigative record, and the Respondent did not

attach a copy of the referenced sections to his Reply." It is true that

Humphreys failed to include the Larson trial

transcripts he cited in the DEA record. Humphreys should have submitted

these transcripts to the DEA for

inclusion in the record. However, while the record did not contain these

trial transcripts, the Deputy

Administrator was clearly aware of the trial and referred specifically to

Humphreys' testimony at a pre-trial

hearing in the Larson case.

Thus, the Deputy Administrator did have before him, and took notice of,

Humphreys' sworn testimony, observing

that

beginning in 1981 and continuing until 1993, [Humphreys] had

issued prescriptions for

Schedule IV controlled substances intended for Justice Larson's

use, but he had issued

the prescriptions in the name of third-parties. . . .

[Humphreys] had never met these

individuals, and they were not his patients. . . . [Humphreys]

testified that he

examined Justice Larson about every six months, but not

necessarily prior to issuing

each of the prescriptions. Rather, Justice Larson would

telephone [Humphreys] and tell

him what substances he wanted and in whose name to issue the

prescription. . . .

[Humphreys] was aware of Justice Larson's diagnosed condition .

. . and that it was

[his] belief that every medication he prescribed for Justice

Larson was for a legitimate

medical purpose. [Humphreys] testified that he had prescribed

the substances in

legitimate medical dosage amounts and at appropriate time

intervals. He states that he

prescribed these controlled substances in this manner in order

to preserve his patient's

privacy . . . .

Indeed, nearly the entirety of the administrative record consists of items

from Larson's criminal trial, including

hearing transcripts and a copy of the complaint, and newspaper reports

regarding the trial.

We are troubled by the fact that the Deputy Administrator went

outside the papers submitted by

Humphreys for evidence supporting his decision, such as Humphreys' pre-

trial testimony – evidence that actually

indicated that Humphreys acted out of concern for Larson's privacy - yet

failed to obtain the public trial

transcripts of Dr. Sandson and others from the very same trial, which were

cited by Humphreys in his support, or

to otherwise consider Humphreys' privacy defense. Such failure is

especially egregious where, as here, the record

is devoid of any evidence, in the form of affidavits, medical treatises or

anything else, that would support a

conclusion that doctors do not prescribe drugs in the name of proxies for

famous patients with mental disorders in

the "usual course" of their medical practice. Nor have we been able to

locate any previous published DEA or

court decision in which such privacy concerns were raised and rejected.

Indeed, at oral argument the DEA

representative acknowledged that she was unaware of any other proceeding

in which such a privacy defense had

been raised.

An agency's action is arbitrary and capricious if the agency

"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."

Natural Resources Defense Council, Inc. v. United States Envtl. Protection

Agency, 790 F.2d 289, 297-98 (3rd

Cir. 1986)(quoting Motor Vehicle Mfrs. Ass'n. v. State Farm Mutual, 463

U.S. 29, 43 (1983)) (emphasis added),

cert. denied sub nom. Chicago Ass'n. of Commerce & Indus. v. National

Resources Defense Council, Inc., 479

U.S. 1084 (1987); see also Shane Meat Co. v. United States Dep't of

Defense, 800 F.2d 334, 336 (3d Cir. 1986)

("Failure of the agency to address an important aspect of the issue under

consideration may be fatal to its

conclusion."). Here, the decision of the Deputy Administrator, lacking any

analysis of Humphreys' privacy defense, is arbitrary and capricious.

In short, the Deputy Administrator both failed to evaluate and

address Humphreys' defense and to resolve

the conflict created by the arguments and evidence before him. See Kent

v. Schweiker, 710 F.2d 110, 114 (3d

Cir. 1983) (stating, in reference to the substantial evidence test, that

"[a] single piece of evidence will not satisfy

the substantiality test if the Secretary ignores, or fails to resolve, a

conflict created by countervailing evidence.").

Humphreys and other trial witnesses asserted that such prescribing

occurred in the "usual course," and there is no

contrary evidence in the record. Thus, there is a conflict between the

record evidence and the Deputy

Administrator's tacit assumption about the "usual course" of medical

practice. The Deputy Administrator

nevertheless failed to resolve or even acknowledge this conflict. He

neither gave any reasons for rejecting

Humphreys' assertions about the "usual course," nor cited any evidence

supporting the conclusion that Humphreys

did not act in the "usual course." That he avoided this conflict is all

the worse given his failure to review the

public testimony that Humphreys and his attorney specifically cited,

summarized and asserted would corroborate

Humphreys' position.

It may well be that the testimony referred to by Humphreys and his

attorney does not, in fact, establish

that Humphreys was merely engaging in the "usual course" of practice.

Here, however, the Deputy Administrator

improperly failed to consider Humphreys' privacy concerns and failed to

determine whether Humphreys' privacy

concerns brought his otherwise allegedly improper prescribing conduct

within the "usual course." Failing to

analyze the privacy defense was an abuse of discretion. Absent such

analysis, it was arbitrary and capricious to

revoke Humphreys' registration in reliance on the second and fourth

factors of 21 U.S.C. § 823(f).

We neither disregard nor minimize the substantial deference to

which such agency decisions are always

entitled. See Pennsylvania Funeral Directors Ass'n. v. Federal Trade

Comm'n., 41 F.3d 81, 85 (3d Cir. 1994)

("The arbitrary and capricious standard is very deferential."). We also

recognize that we must not simply

substitute our judgment for that of the agency. Shane Meat Co., 800 F.2d

at 336. However, this is not simply a

case where we disagree with the Deputy Administrator's application of

relevant mitigating aspects of the statutory

factors to settled facts. See Id. (reversing district court decision

finding an administrative decision arbitrary and

capricious where the agency decision gave consideration to the relevant

mitigating factors). Rather, here the

agency improperly failed even to consider the defense put forth by

Humphreys. The case must be remanded for

proper consideration of that defense.

Proceedings on Remand

In addition to the Deputy Administrator's improper reliance on

factors two and four in the absence of a

consideration of Humphreys' privacy defense, the Deputy Administrator's

remaining discussion of the 21 U.S.C.

§ 823(f) factors contains several additional inconsistencies and problems

which should be addressed and corrected

on remand.

First, as to factor one, the "recommendation" of the appropriate

state licensing board or professional

disciplinary authority, section 823(f)(1), the Deputy Administrator noted

that the Pennsylvania Bureau of

Professional and Occupational Affairs had issued a Show Cause order

alleging that Humphreys had engaged in a

12-year pattern of issuing prescriptions to individuals who were not his

patients that, if proven, would violate state

law and might justify revoking his medical license. At the time of DEA's

decision, however, the only evidence in

the record pertaining to the state investigation indicated merely that the

Show Cause order had issued and that

Pennsylvania bore the burden of proving the charges by a preponderance of

the evidence. We have no indication

whether Humphreys advanced the same defense there as here or what ruling,

if any, Pennsylvania made on any

such defense. On remand, the DEA should determine whether Pennsylvania,

in fact, met its burden and what

actions, if any, have actually been taken against Humphreys. If none,

then the Deputy Administrator should

consider whether, by merely issuing the Order to Show Cause, Pennsylvania

authorities have made any

"recommendation" within the meaning of section 823(f)(1). Only if the

Deputy Administrator properly concludes

Pennsylvania has made a "recommendation" of revocation or other punitive

action may any weight adverse to

Humphreys be given under factor one. Although in this decision the Deputy

Administrator only gave limited

weight to factor one, it is not clear any weight at all is appropriate.

Second, we note that, as applied by the Deputy Administrator, any

weight under factor two, which

concerns "experience with dispensing . . . controlled substances," is

entirely dependent on the violation of a

federal regulation found by the Deputy Administrator under factor four.

That is, if Humphreys violated the

federal regulation, that he did so for over 12 years is an aggravating

factor. However, if his conduct was indeed

in the "usual course," its duration is irrelevant.

Third, the DEA found that Humphreys' "prescribing of controlled

substances to Justice Larson merely

upon his request, without seeing him, examining him, or otherwise making a

medical evaluation prior to issuing

the prescription, demonstrated behavior such that the patient's demands

seemed to replace the physician's

judgment. . . . Such uncontroverted actions on the part of the Respondent

are preponderating evidence that he

has dispensed controlled substances in violation of federal law." We have

reviewed the administrative record and

see nothing in the current record that would support this particular

finding. While there is some evidence

indicating Larson would call Humphreys and request prescriptions for

certain drugs or request a change in his

prescription, there is absolutely no testimony indicating Humphreys failed

to exercise his own medical judgment

when prescribing medication for Larson. We do not mean to say that the DEA

might not be able to prove this fact

at a later date upon an expanded record – only that it has not done so on

this record. Indeed, if anything, the

current record indicates Humphreys, in fact, was exercising independent

medical judgment. Specifically,

Humphreys stated that he would have adjusted the drugs accordingly had he

become aware that other drugs were

being prescribed to Larson by other doctors. Humphreys also testified

that it was his belief that every medication he prescribed for Larson was

medically appropriate. In addition, the

testimony of Larson himself indicates Humphreys exercised his own

judgment. Specifically, Larson testified

Humphreys performed a full physical evaluation before prescribing drugs

for the first time, that the drugs were

later changed due to side effects, and that Humphreys was the "ultimate

decider" of what particular drugs to

prescribe. Thus, it remains unclear how factor four can weigh against

Humphreys in this regard.

Fourth, the Deputy Administrator found, under factor five, that

the public was at risk from the potential

diversion of controlled substances by both Larson, who could have received

duplicative prescriptions for

controlled substances, and the employees named on the prescriptions, who

were prescribed medication they did

not intend to ingest and for which they themselves lacked a medical need.

The Deputy Administrator's inferences

of a threat of public harm are overly broad and only weakly, if at all,

supported by the present record. Indeed, the

Deputy Administrator admitted that no such diversion in fact occurred.

The conclusion that substantial risk for

diversion existed because Larson or the secretaries and the law clerk

might resell the drugs, under these

circumstances, is so unlikely as to be unsustainable. The secretaries and

law clerk in whose names the

prescriptions were written were, after all, trusted employees and

responsible adults. They obtained the drugs at

Larson's specific requests and under his instruction. Moreover, Larson

was aware of what drugs he should

receive from each of these individuals and when he should receive them,

having contacted Humphreys each time

to tell Humphreys which name to use for a particular prescription. Any

deviation would have been quickly

noticed and, presumably, dealt with appropriately. That such trusted

employees were at risk because they might

take the drugs themselves or endangered others because they might attempt

to resell them, rather than turn them

over to Larson, is "implausible". See Natural Resources Defense Council,

790 F.2d at 297-98.

It is true, as the Deputy Administrator noted, that the

pharmacist filling a prescription could not have

checked any available computer data bank for conflicting prescriptions for

Larson, since the prescriptions for

Larson were not in his name. However, the DEA did not establish that the

pharmacy or pharmacies patronized by

Larson had such a system in place during the relevant time period.

Moreover, if Larson frequented more than

one pharmacy, the DEA has not shown that problems would have been detected

even if all of Larson's

prescriptions had been written in his own name.

Our discussion of the need on remand to correct the deficiencies

in the decision under review should not

be construed in any way as suggesting that Humphreys either is or is not

entitled to retain his DEA registration.

We intimate no view on that issue. Rather, we hold only that the Deputy

Administrator failed to properly

analyze the evidence and decide the issues and must do so on remand.

Conclusion

Because the DEA utterly failed to consider Humphreys' defense and

improperly analyzed some of the

evidence, its analysis was so inadequate and prejudicial to Humphreys as

to constitute an abuse of discretion and

render the revocation order an arbitrary and capricious agency action.

Therefore, we vacate and remand.