Case: 12-15292     Date Filed: 10/17/2013   Page: 1 of 4


                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                                _________________

                                No. 12-15292
                            Non-Argument Calendar
                                _________________

                              D.C. Docket No. 12-14

T. J. MCNICHOL,

                                                          Petitioner,

                                      versus

DRUG ENFORCEMENT ADMINISTRATION,

                                                          Respondent.

                                _________________

                    Petition for Review of a Decision of the
                           Drug Enforcement Agency
                                _________________

                               (October 17, 2013)


Before TJOFLAT, DUBINA, and PRYOR, Circuit Judges.

PER CURIAM:

     This is a petition for review of a final order of the United States Drug

Enforcement Administration (“DEA”). An Administrative Law Judge (“ALJ”)
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issued a report and recommended ruling in favor of Dr. T. J. McNichol (“Dr.

McNichol”). The DEA Administrator rejected that ruling and revoked Dr.

McNichol’s DEA registration.

      An agency’s factual findings are conclusive “if supported by substantial

evidence.” 21 U.S.C. § 877. Substantial evidence is “such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” Moore v.

Barnhart, 

, 1211 (11th Cir. 2005). It is “more than a scintilla, but

less than a preponderance.” Hale v. Bowen, 

, 1011 (11th Cir. 1987)

(internal quotation marks omitted). An administrative agency’s finding is

supported by substantial evidence even if “two inconsistent conclusions [could be

drawn] from the evidence.” Consolo v. Federal Maritime Comm’n, 

,

620, 

, 1026 (1966); see also Universal Camera Corp. v. NLRB, 

, 488, 

, 465 (1951) (agency decision must be upheld even if

court would have reached different conclusion under de novo review). The

“limited” substantial evidence review “precludes deciding the facts anew, making

credibility determinations, or re-weighing the evidence.” Moore, 405 F.3d at 1211;

see also Dyer v. Barnhart, 

, 1211 (11th Cir. 2005).

      A court may set aside the DEA’s final decision only if is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

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U.S.C. § 706(2)(A). “This standard is exceedingly deferential.” Sierra Club v.

Van Antwerp, 

, 1360 (11th Cir. 2008) (quoting Fund for Animals,

Inc. v. Rice, 

, 541 (11th Cir. 1996)). This court will not overturn an

agency decision so long as the agency “examine[d] the relevant data and

articulate[d] a satisfactory explanation for its action including a rational connection

between the facts found and the choice made.” Motor Veh. Mfrs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 

, 43, 

, 2866 (1983) (internal

quotation marks omitted).

      To determine whether an agency decision was arbitrary and capricious, the

reviewing court considers whether the decision was based on a consideration of the

relevant factors and whether there has been a clear error of judgment. Id. at 43,

103 S. Ct. at 2866-67. A court will not overturn an agency decision unless the

agency has “relied on factors which Congress has not intended it to consider,

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.” Miccosukee Tribe of Indians of Fla. v. United States, 

, 1264 (11th Cir. 2009) (quoting Alabama Tombigbee Rivers Coal. v.

Kempthorne, 

, 1254 (11th Cir. 2007)).

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      After reviewing the record in this case, we conclude that substantial

evidence supports the agency’s decision to revoke Dr. McNichol’s DEA

registration. The record clearly demonstrates that Dr. McNichol repeatedly

prescribed controlled substances without a legitimate medical purpose and outside

the usual course of his professional practice. Moreover, the government

established by a preponderance of the evidence a prima facie case that revocation

was in the public interest, and Dr. McNichol did not present sufficient mitigation to

rebut that case. Specifically, the administrator properly relied on uncontested

evidence that Dr. McNichol illegally prescribed controlled substances to four

undercover law enforcement officers.

      Because the record supports that the administrator considered all aspects of

the evidence in light of the applicable statutory factors and committed no clear

error of judgment in its decision, its decision was not arbitrary and capricious.

Finally, we also agree with the administrator’s conclusion that Dr. McNichol’s

continued registration would be inconsistent with the public interest. For the

foregoing reasons, we deny the petition for review.

      PETITION DENIED.




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