Becker v. Drug Enforcement Admin., No. 12-4559

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMcKEAGUE
PartiesJEFFERY J. BECKER, D.D.S.; and JEFFERY J. BECKER, D.D.S., AFFORDABLE CARE, Petitioners, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent.
Docket NumberNo. 12-4559
Decision Date03 October 2013

JEFFERY J. BECKER, D.D.S.; and JEFFERY J. BECKER, D.D.S.,
AFFORDABLE CARE, Petitioners,
v.
DRUG ENFORCEMENT ADMINISTRATION, Respondent.

No. 12-4559

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED: October 3, 2013


NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0864n.06

ON PETITION FOR REVIEW
OF FINAL DECISION OF
DRUG ENFORCEMENT
ADMINISTRATION

OPINION

BEFORE: MERRITT, GIBBONS and McKEAGUE, Circuit Judges.

McKEAGUE, Circuit Judge. This case presents a petition for judicial review of a final decision of the Deputy Administrator of the Drug Enforcement Administration (DEA). The decision revoked Certificates of Registration that authorized Jeffery J. Becker, D.D.S., to distribute controlled substances in the course of his practice of periodontic dentistry at locations in Norwalk, Ohio, and Milwaukee, Wisconsin. The decision is based on findings that Becker violated regulations establishing registration, record-keeping and secure-storage requirements relating to the dispensing of controlled substances at an unregistered location in Avon, Ohio. Becker contends essentially that his violations, to the extent they are established by substantial evidence at all, are technical and minor and do not warrant the severe penalty of revocation. For the reasons that follow, we hold that

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the Deputy Administrator's findings are supported by substantial evidence and the sanction imposed is not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. We therefore deny the petition for review.

I

The Deputy Administrator's Final Order is dated November 16, 2012 and was effective January 4, 2013. Jeffery J. Becker, D.D.S., and Jeffery J. Becker, D.D.S., Affordable Care Decision and Order, 77 Fed. Reg. 72387 (Dec. 5, 2012). It is based substantially on the Recommended Decision of Chief Administrative Law Judge John J. Mulrooney II, issued on December 21, 2011, following an administrative hearing conducted on November 8-9, 2011. In reviewing the Recommended Decision, the Deputy Administrator considered Becker's four Exceptions and found one to have merit.

The Deputy Administrator adopted the ALJ's recommended findings that:

(1) Becker maintained a dental practice in Avon, Ohio, where controlled substances were maintained and dispensed without obtaining a Drug Enforcement Administration Certificate of Registration, in violation of 21 U.S.C. § 822(e) and 21 C.F.R. § 1301.12;

(2) Becker's continued administering of controlled substances at the Avon location after having received notice this was in violation of the registration requirement justified finding the violation "flagrant;"

(3) Becker maintained controlled substances at the Avon location in an unsecured area, in violation of 21 C.F.R. § 1301.75(b); and

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(4) Becker's records of controlled substances administered to patients were either incomplete or erroneous and therefore unreliable.1

Further, the Deputy Administrator adopted the ALJ's conclusion that the above violations made out a prima facie showing that Becker's continued registration would be inconsistent with the public interest under the factors set forth at 21 U.S.C. § 823(f). Finding that Becker had failed to rebut the prima facie case by demonstrating acceptance of responsibility for his misconduct and implementation of appropriate corrective measures, the Deputy Administrator adopted the recommendation to revoke his existing registrations for the Norwalk and Milwaukee locations and deny any pending renewal application.

In his petition for review, Becker contends the findings that he violated the secure-storage and record-keeping requirements are not supported by substantial evidence. He also contends the Deputy Administrator acted arbitrarily and capriciously and abused her discretion in concluding that his registration was so inconsistent with the public interest as to warrant revocation.

II

The Deputy Administrator's factual findings are conclusive if they are supported by substantial evidence. 21 U.S.C. § 877; see also Volkman v. DEA, 567 F.3d 215, 219 (6th Cir. 2009). To satisfy this standard, the evidence supporting a finding must be more than a scintilla and must do more than create a suspicion of the fact found to exist. Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir.

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2005). Applying this standard, we have no difficulty concluding that the Deputy Administrator's fact-findings are sufficiently supported by the record.

We acknowledge, as did the Deputy Administrator, that the deficiencies in Becker's controlled substances storage practices found to exist in Avon have been corrected. For this reason, the finding of past storage deficiencies played little or no role in the disciplinary decision. Becker, 77 Fed. Reg. at 72388, 72391.

Further, we note that although the Deputy Administrator alluded to Becker's record-keeping deficiencies in explaining her decision to adopt the recommended discipline, id. at 72391, the ALJ's recommended decision does not include an explicit finding of a record-keeping violation, see id. at 72407-08. Rather, the ALJ observed that Becker's records were incomplete and failed to reliably account for the high levels of controlled substance medications reportedly administered at the Avon location. Id. at 72406. The ALJ considered this relevant to his assessment of whether continued registration would be inconsistent with the public interest under 21 U.S.C. § 823(f). In particular, the ALJ noted that questions arising from the records led to testimony by Becker that was lacking in candor and credibility, id. at 72399-72401, reflecting adversely on his entitlement to continued registration. Likewise, the Deputy Administrator considered Becker's failure to remedy the manifest record-keeping deficiencies as relevant to whether the recommended revocation was "arbitrary, capricious and unsupported by law." Id. at 72391. In other words, the record-keeping deficiencies are significant not as a "rules violation" per se, but as part of the totality of circumstances contributing to the decision to revoke Becker's registrations, which we review below.

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