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Precedential or Non-Precedential: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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"Humphreys v. DEA" (1996). 1996 Decisions. Paper 75.
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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, 

, 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, 

, 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 

,
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

. The dentist pled guilty only to misdemeanor
possession of cocaine as part of a plea
bargain. 

Following his conviction, the DEA revoked his
registration as being inconsistent with the
public interest. 

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." 

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. 

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, 

, 297-98 (3rd
Cir. 1986)(quoting Motor Vehicle Mfrs. Ass'n. v. State Farm Mutual, 

, 43 (1983)) (emphasis added),
cert. denied sub nom. Chicago Ass'n. of Commerce & Indus. v. National
Resources Defense Council, Inc., 

(1987); see also Shane Meat Co. v. United States Dep't of
Defense, 

, 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, 

, 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., 

, 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 

. 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 

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 

.
         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.