DEA Actions Upheld by D.C. Court of Appeals

A recent decision by the U.S. Court of Appeals for the District of Columbia in Chein v. DEA demonstrates the Court’s deference to agency expertise and a registrant’s heavy burden in overturning final action by the Drug Enforcement Administration (“DEA”) absent a “flagrant departure from DEA policy and practice.” 

In this case, DEA revoked a practitioner’s registration and denied his application for an export registration finding that the practitioner’s registration was not in the public interest.  The registrant, who is both a physician and lawyer, had a less than stellar history with DEA, the California Medical Board, and local law enforcement.  Relying on a 1995 decision of the Court in Morall v. DEA, the registrant argued that DEA revoked his registration when it had not revoked other physician’s registrations in analogous circumstances.  The Court explained its reasoning in Morall, stating that under the Administrative Procedure Act “the [DEA’s] choice of sanction is entitled to substantial deference and will be set aside only if [the] decision is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Relying on Supreme Court precedent in Butz v. Glover Livestock Comm’n Co., the court went on to explain that the “mere unevenness in the application of a sanction will not render its application in a particular case unwarranted in law.”  The Court found noteworthy that the practitioner failed to demonstrate that DEA has a “consistent” policy of allowing a practitioner to retain his registration under similar circumstances and “never accepted responsibility for his misconduct,” nor “cooperated with DEA.”

By John A. Gilbert & Serafina E. Lobsenz