[DO NOT PUBLISH] 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”) 

Case: 12-15292 Date Filed: 10/17/2013 Page: 1 of 4 
2

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, 405 F.3d 1208, 1211 (11th Cir. 2005). It is “more than a scintilla, but 

less than a preponderance.” Hale v. Bowen, 831 F.2d 1007, 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, 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 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, 395 F.3d 1206, 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 

Case: 12-15292 Date Filed: 10/17/2013 Page: 2 of 4 
3

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

Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (quoting Fund for Animals, 

Inc. v. Rice, 85 F.3d 535, 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., 463 U.S. 29, 43, 103 S.Ct. 2856, 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, 566 

F.3d 1257, 1264 (11th Cir. 2009) (quoting Alabama Tombigbee Rivers Coal. v. 

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

Case: 12-15292 Date Filed: 10/17/2013 Page: 3 of 4 
4

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.

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