Slip Opinion
3d Cir.2025Background
- Stephen McCarthy, a physician assistant, held a DEA Certificate of Registration (COR) to prescribe controlled substances.
- McCarthy prescribed controlled substances without the required written supervision agreement with a physician, violating Pennsylvania law.
- The DEA issued an Order to Show Cause, proposing to revoke his COR and deny renewal applications.
- At a hearing, evidence showed McCarthy issued about seventeen prescriptions without proper supervision; he did not dispute these facts but claimed a misunderstanding about the status of his prior agreement.
- The Administrative Law Judge (ALJ) found McCarthy’s explanations unpersuasive, cited his limited acceptance of responsibility, and recommended revocation; the DEA Administrator adopted this recommendation in full.
- McCarthy petitioned for review, alleging constitutional and administrative law errors in the DEA’s process and decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ALJ Removal Protections | ALJ’s multi-layered removal protection is unconstitutional | Constitutional infirmity irrelevant absent harm | McCarthy lacked causal link between protection and injury; claim rejected |
| Arbitrary and Capricious Agency Decision | DEA’s decision flaggedly departed from agency practice | Decision consistent, supported by evidence | Decision not arbitrary or capricious; revocation affirmed |
| Acceptance of Responsibility | McCarthy accepted responsibility, merits leniency | Only partial acceptance shown, not sufficient | DEA properly found responsibility lacking; no abuse of discretion |
| Consideration of Lesser Sanctions | DEA did not consider alternatives to revocation | Lesser sanctions were considered | Administrator considered but found revocation appropriate |
Key Cases Cited
- Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (multilevel for-cause removal protections violate Constitution)
- Collins v. Yellen, 594 U.S. 220 (plaintiff must show removal provision caused actual harm)
- Butz v. Glover Livestock Comm'n Co., 411 U.S. 182 (agency sanctions receive substantial deference)
- Humphreys v. Drug Enf’t Admin., 96 F.3d 658 (agency decisions can only be overturned if arbitrary, capricious, or abusive of discretion)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (agencies must acknowledge changes in policy)