Klinestiver v. Drug Enforcement Administration, No. 78-2178

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WRIGHT, Chief Judge, and BAZELON and TAMM; Opinion for the Court filed by BAZELON; BAZELON
Citation606 F.2d 1128
Docket NumberNo. 78-2178
Decision Date22 June 1979
PartiesDonald G. KLINESTIVER, Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent.

Page 1128

606 F.2d 1128
196 U.S.App.D.C. 221
Donald G. KLINESTIVER, Petitioner,
v.
DRUG ENFORCEMENT ADMINISTRATION, Respondent.
No. 78-2178.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 31, 1979.
Decided June 22, 1979.

Larry S. Gondelman, Washington, D.C., with whom Plato Cacheris, Washington, D.C., was on the brief for petitioner.

Allan P. Mackinnon, Atty., U. S. Dept. of Justice, Washington, D.C., with whom Stephen E. Stone, Atty., Drug Enforcement Administration, Washington, D.C., were on the brief for respondent.

Before WRIGHT, Chief Judge, and BAZELON and TAMM, Circuit Judges.

Opinion for the Court filed by BAZELON, Circuit Judge.

BAZELON, Circuit Judge:

Petitioner Klinestiver challenges the revocation of his Certificate of Registration on three grounds: 1) that the decision was improperly based exclusively on hearsay testimony; 2) that the findings of fact underlying the order were not supported by substantial evidence; and 3) that DEA violated 5 U.S.C. § 557(c) (1976) by failing to provide petitioner an opportunity to file exceptions to the Administrative Law Judge's recommended decision. We consider each of these arguments briefly in turn.

1. Petitioner concedes that, at least in the absence of agency regulations to the contrary, hearsay is both admissible and may, standing by itself, constitute substantial evidence in support of an administrative decision. Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Nonetheless, petitioner contends that the applicable DEA regulation, 21 C.F.R. § 1316.59(a) (1978) erects a higher standard for the admissibility of evidence in a DEA hearing, permitting the introduction only of evidence that would be admissible under "jury trial" rules.

We disagree with petitioner's reading of the regulation. Although the rule speaks of "competent" evidence, it does not further explicate the meaning of "competent." Competent evidence is a conclusory term, synonymous with "admissible." See McCormick on Evidence, § 52 (2d ed. 1972) at 116.

Page 1130

"The word 'incompetent' as applied to evidence means no more than inadmissible, and thus cannot be said to state a ground of objection." To say that DEA is limited to "competent" evidence is to beg the very question at issue here, namely, what evidence is legally admissible in DEA proceedings.

The history of this regulation convinces us that DEA never intended to bind itself to a higher standard of...

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13 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...in a disciplinary proceeding is not controlled by the Federal Rules of Evidence. See Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1130 (D.C. Cir. 1979). While most evidence admissible under the Federal Rules of Evidence would be admissible in a disciplinary proceeding, the......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...in a disciplinary proceeding is not controlled by the Federal Rules of Evidence. See Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1130 (D.C. Cir. 1979). While most evidence admissible under the Federal Rules of Evidence would be admissible in a disciplinary proceeding, the......
  • Lacson v. U.S. Dep't of Homeland Sec., No. 11–1447.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 30, 2013
    ...of the Army, 677 F.2d 131, 138–39 (D.C.Cir.1982); Johnson v. United States, 628 F.2d 187, 190–91 (D.C.Cir.1980); Klinestiver v. DEA, 606 F.2d 1128, 1129–30...
  • Johnson v. U.S., No. 79-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 8, 1980
    ...that brands evidence as insubstantial solely because it bears the hearsay label. See Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1129 (D.C.Cir.1979). Instead, we evaluate the weight each item of hearsay should receive according to the item's truthfulness, reasonableness, ......
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6 cases
  • Lacson v. U.S. Dep't of Homeland Sec., No. 11–1447.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 30, 2013
    ...of the Army, 677 F.2d 131, 138–39 (D.C.Cir.1982); Johnson v. United States, 628 F.2d 187, 190–91 (D.C.Cir.1980); Klinestiver v. DEA, 606 F.2d 1128, 1129–30...
  • Johnson v. U.S., No. 79-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 8, 1980
    ...that brands evidence as insubstantial solely because it bears the hearsay label. See Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1129 (D.C.Cir.1979). Instead, we evaluate the weight each item of hearsay should receive according to the item's truthfulness, reasonableness, ......
  • Lacson v. U.S. Dep't of Homeland Sec., No. 11-1447
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 30, 2013
    ...of the Army, 677 F.2d 131, 138-39 (D.C. Cir. 1982); Johnson v. United States, 628 F.2d 187, 190-91 (D.C. Cir. 1980); Klinestiver v. DEA, 606 F.2d 1128, 1129-30 (D.C. Cir....
  • Mortg. Elec. Registration Sys., Inc. v. Frank J. Patock, Jr., Douglas Lynch, Clearview Fin., LLC, Civil No. 2006–190.
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • May 20, 2009
    ...such it cannot be considered competent evidence for purposes of the instant motion. See Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1129 (D.C.Cir.1979) (“Competent evidence is ... synonymous with ‘admissible.’ ”). Thus, MERS' argument that the motion to set aside should b......
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