MacKay v. Drug Enforcement Administration, 664 F.3d 808

Dr. MacKay held a DEA registration to dispense controlled substances (schedules II–V) and Utah medical license, with orthopedic practice transitioning to chronic-pain management by 2007.
DEA investigation began after local authorities alleged unlawful prescriptions; warrants were executed in 2008 and 2009; two patients recorded undercover visits with Dr. MacKay.
February 26, 2009: Deputy Administrator issued order to show cause seeking revocation and immediately suspended registration pending proceedings.
ALJ hearing relied on testimony from cooperating patients, undercover recordings, medical records, and a medical expert; Dr. MacKay did not testify.
Deputy Administrator adopted ALJ’s recommendation to revoke and deny renewals, holding Dr. MacKay’s conduct rendered continued registration inconsistent with the public interest, emphasizing diversion evidence with respect to M.R. and K.D.
Appeal challenged that the agency weighed factors improperly, considered an extra factor (failure to admit fault), and that revocation was excessive given other evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether substantial evidence supports revocation under 21 U.S.C. §823(f) factors	MacKay contends factors two and four show no public-interest inconsistency.	DEA evidence of diversion to M.R. and K.D proves inconsistency with public interest.	Yes; substantial evidence supports factors two and four supporting revocation.
Whether considering failure to admit fault is permitted	Deputy Administrator impermissibly relied on failure to testify as sign of remorse.	Adverse inference from failure to testify is permissible and relevant to future conduct.	Yes; adverse inference and failure to admit fault properly considered.
Whether revocation was an appropriate sanction versus a restricted registration	MacKay argues restricted registration could suffice given practice with other patients.	DEA policy supports revocation where diversion and misconduct occurred and responsibility was not acknowledged.	Revocation is appropriate and consistent with DEA policy.
Whether the Deputy Administrator properly weighed and articulated the five factors	Argues improper weighting and failure to explicitly discuss all factors.	Factor analysis was conducted with emphasis on factors two and four; other factors not dispositive.	Yes; substantial evidence supports the balancing of factors and outcome.

Morall v. DEA, 412 F.3d 165 (D.C. Cir. 2005) (agency must consider public-interest factors in revocation decisions)
Hoxie v. DEA, 419 F.3d 477 (6th Cir. 2005) (permissible to draw adverse inferences in administrative proceedings)
Baxter v. Palmigiano, 425 U.S. 308 (Supreme Court 1976) (Fifth Amendment not violated by adverse inference in civil proceedings)
Keating v. Office of Thrift Supervision, 45 F.3d 322 (9th Cir. 1995) (adm. proceedings permit adverse inferences in testimony context)
Lax v. Astrue, 489 F.3d 1080 (10th Cir. 2007) (defining substantial evidence standard)
Volkman v. DEA, 567 F.3d 215 (6th Cir. 2009) (deference to agency’s sanction decisions; weight of factors varies)
Chein v. DEA, 533 F.3d 828 (D.C. Cir. 2008) (DEA sanction decisions reviewed for arbitrariness and rational connection)
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (Supreme Court 1983) (arbitrary-and-capricious review standard for agency actions)
Volkman v. DEA, 567 F.3d 215 (6th Cir. 2009) (agency need not weigh every factor equally; rational connection required)