[DO NOT PUBLISH]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. MC NICHOL, 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”)

Case: 12-15292 Date Filed: 10/17/2013 Page: 1 of 42 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 fact ual 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 , 405 F.3d 1208, 1211 (11 th C ir. 2005). It is “more than a scintilla, but less than a preponderance.” Hale v. Bowen , 831 F.2d 1007, 1011 (11 th Cir. 1987) (internal quotation marks omitted). An administrative agency’s finding is supported by substantial evidence even if “two inconsi stent conclusions [could be drawn] from the evidence.” Consolo v. Federal Maritime Comm’n , 383 U.S. 607, 620, 86 S. Ct. 1018, 1026 (1966); see also Universal Camera Corp. v. NLRB , 340 U.S. 474, 488, 71 S. Ct. 456, 465 (1951) (agency decision must be uphel d 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 als o Dyer v. Barnhart , 395 F.3d 1206, 1211 (11 th 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

Case: 12-15292 Date Filed: 10/17/2013 Page: 2 of 43 U.S.C. § 706(2)(A). “This standard is exceedi ngly deferential.” Sierra Club v. Van Antwerp , 526 F.3d 1353, 1360 (11 th Cir. 2008) (quoting Fund for Animals,
Inc. v. Rice , 85 F.3d 535, 541 (11 th Cir. 1996)). This court will not overturn an agency decision so long as the agency “examine[d] the relevan t 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. , 463 U.S. 29, 43, 103 S.Ct. 2856, 2866 (1983) (intern al 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 explanati on 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 , 566 F.3d 1257, 1 264 (11 th Cir. 2009) (quoting Alabama Tombigbee Rivers Coal. v

. Kempthorne , 477 F.3d 1250, 1254 (11 th Cir. 2007))

.

Case: 12-15292 Date Filed: 10/17/2013 Page: 3 of 44 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 tha t 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. Case: 12-15292 Date Filed: 10/17/2013 Page: 4 of 4