1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-17-1996

Humphreys v. DEA

Precedential or Non-Precedential:

Docket 96-3099

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Recommended Citation

"Humphreys v. DEA" (1996). 1996 Decisions. Paper 75.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/75
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 

 NO. 96-3099 

 

 

 EARL A. HUMPHREYS, M.D., 

 Petitioner 

 

 v. 

 DRUG ENFORCEMENT ADMINISTRATION, 

 Respondent. 

 

 

On Appeal from an Order of the Drug Enforcement Administration dated 

January 23, 1996 

 (AH 16752) 

 

 

 Argued July 26, 1996 

BEFORE: BECKER, STAPLETON, AND MICHEL, Circuit Judges. 

(Opinion Filed September 17, 1996) 

 Robert A. Felkay, Esquire (argued) 

 John A. Tumolo, Esquire 

 Professional Office Building 

 430 Blvd. Of The Allies 

 Pittsburgh, PA 15219 

 Attorney for Earl A. Humphreys, M.D. 

 

 John C. Keeney, Esquire, 

 Theresa M.B. Van Vliet, Esquire, 

 Hope P. McGowan, Esquire (argued) 

 Narcotic and Dangerous Drug Section 

 Criminal Division 

 Post Office Box 27312 

 Washington, D.C. 20038

 Attorneys for Drug Enforcement Administration 

 

 

 OPINION OF THE COURT 

 

MICHEL, Circuit Judge. 

 
 Earl A. Humphreys, M.D. ("Humphreys") appeals from an order of 

the Drug Enforcement 

Administration ("DEA"), dated January 23, 1996, in which the Deputy 

Administrator of the DEA ordered that 

Humphreys' DEA certificate of registration be revoked and any pending 

application for renewal of the registration 

be denied. Earl A. Humphreys, M.D.; Revocation of Registration, 61 Fed. 

Reg. 2840 (1996). Because the DEA 

abused its discretion in failing to consider Humphreys' privacy defense 

and, on the present record, arbitrarily 

revoked his registration, we vacate and remand. 

 BACKGROUND 

 Humphreys is a Pittsburgh doctor specializing in gastroenterology 

and internal medicine and who, prior 

to this proceeding, had practiced for over 35 years without any 

disciplinary actions being taken against him. On 

April 12, 1995, a Deputy Assistant Administrator of the DEA issued to 

Humphreys an Order to Show Cause why 

the DEA should not revoke Humphreys' certificate of registration under 21 

U.S.C. § 824(a)(4) and deny any 

pending application under 21 U.S.C. § 823(f) as being inconsistent with 

the public interest. Specifically, the 

Order to Show Cause alleged that "from the early 1980s to mid-1993, 

[Humphreys] prescribed controlled 

substances to at least four individuals without a legitimate medical need 

and with knowledge that these individuals 

were not the ultimate recipients of the controlled substances." 

 The DEA's action was precipitated by Humphreys' personal and 

professional relationship with former 

Pennsylvania Supreme Court Justice Rolf Larson ("Larson") and the criminal 

investigation of Larson. 

Humphreys acted as Justice Larson's personal physician for approximately 

the past 20 years. In 1993, based on 

the findings and recommendations of a grand jury, Larson was charged with 

one count of conspiracy to commit 

"Acquisition or Obtaining of Possession of a Controlled Substance by 

Misrepresentation, Fraud, Forgery, 

Deception, or Subterfuge" and numerous other violations of law. Humphreys 

was named as an unindicted coconspirator in the conspiracy count and received immunity in return for 

his testimony against Larson. 

 The criminal conspiracy charge against Larson, and DEA's 

regulatory investigation of Humphreys, 

stemmed from Larson's attempts to keep his mental health problems out of 

public sight. Beginning in the 1960's, 

Larson visited psychiatrists and psychologists for the treatment of 

clinical depression and anxiety. These doctors 

prescribed various tranquilizers and antidepressants, which Larson paid 

for out of his own pocket in order to 

preserve his privacy. Beginning in 1981, however, Larson revised his 

method of assuring his privacy: he asked 

Humphreys to prescribe various controlled drugs for Larson in the name of 

certain of Larson's employees 
(secretaries and a law clerk). From the early 1980's to mid-1993, 

Humphreys wrote approximately 34 

prescriptions for drugs in this manner, including prescriptions for 

Valium, Diazepan, Ativan, and Serax. It is 

undisputed that the individuals named on the prescriptions always gave the 

prescription drugs to Larson and did 

not take the medications themselves or resell them. It is also undisputed 

that Humphreys was aware of Larson's 

diagnosed condition, that he believed each medication he prescribed was 

for an appropriate medical purpose, and 

that he prescribed the substances in appropriate medical dosage amounts 

and at acceptable time intervals. 

Moreover, although Humphreys did not examine Larson each time he 

prescribed drugs, Humphreys did examine 

Larson before the first prescription and approximately every six months 

thereafter. Although Humphreys was 

aware that Larson was continuing to see other doctors, Humphreys was not 

aware of any other medications 

prescribed by Larson's other doctors and did not attempt to coordinate his 

prescriptions with those of these other 

doctors. Humphreys received no money for writing these prescriptions. 

 After receiving the Order to Show Cause, Humphreys and his 

attorney each filed a response to the 

Order. Humphreys' primary defense was that, by prescribing the medication 

in the names of Larson's close 

associates, he was attempting to protect Larson's privacy in a manner 

common and acceptable in standard medical 

practice for famous patients with mental conditions. Humphreys 

waived his right to a hearing, as he was recovering from a stroke. 

 On January 23, 1996, the Deputy Administrator entered his Final 

Order, based on the investigative 

record and Humphreys' written statement. The Deputy Administrator 

acknowledged that he could revoke 

Humphreys' registration only if continued registration would be 

inconsistent with the public interest pursuant to 

the five factors set forth in 21 U.S.C. § 823(f). The Deputy 

Administrator considered, discussed and relied upon

each of the five factors except for factor three – Humphreys' conviction 

record under Federal or State laws 

relating to controlled substances, which, because he had none, was not a 

relevant factor – and, based upon these 

factors, determined that the public interest would be best served by 

revoking Humphreys' registration. The 

Deputy Administrator did not discuss, and apparently did not consider, 

Humphreys' privacy defense. Humphreys 

appealed, and this court granted a stay of the Order pending our 

disposition of this appeal. We have jurisdiction 

to hear this appeal under 21 U.S.C. § 877 (1994). 

 ANALYSIS 

The Standard of Review 

 Agency decisions, such as the Deputy Administrator's Order, may 

be set aside only if arbitrary, 

capricious, an abuse of discretion or otherwise not in accordance with the 

law. 5 U.S.C. § 706(2)(A) (1994). "As 
a reviewing court, we must accord proper deference to the DEA's expertise 

but must nonetheless make a 

'searching and careful inquiry' of the record to determine whether the 

agency's decision was based on a 

consideration of the relevant factors and whether there was a clear error 

of judgment." Trawick v. DEA, 861 

F.2d 72, 76 (4th Cir. 1988) (affirming revocation of registration) 

(citation omitted). 

The Regulatory Framework 

 The Controlled Substances Act, as amended by the Dangerous Drug 

Diversion Control Act of 1984, Pub. 

L. No. 98-473, Title II, § 511, 98 Stat. 2073, requires that any person 

who dispenses controlled substances must 

first obtain a certificate of registration from the Attorney General. 21 

U.S.C. §§ 822(a), 823(f) (1994). The 

Attorney General has delegated the authority to deny, revoke or suspend 

registrations to the Administrator of the 

DEA. 21 U.S.C. § 824 (1994); 28 C.F.R. § 0.100(b).

 Prior to 1984, the DEA could revoke a registration for only three 

reasons: (1) falsification of an 

application; (2) felony conviction related to controlled substances; and 

(3) suspension, revocation or denial of a 

state license. In 1984, with the enactment of the Dangerous Drug 

Diversion Control Act, Congress added a 

fourth reason for which a registration could be revoked, namely, a finding 

that the physician had committed "such 

acts as would render his registration under section 823 of this title 

inconsistent with the public interest as 

determined under such section . . . ." 21 U.S.C. § 824(a) (1994). In 

determining whether registration would be 

inconsistent with the public interest, the DEA must consider the following 

factors: 

 (1) The recommendation of the appropriate State licensing 

board or 

 disciplinary authority. 

 (2) The applicant's experience in dispensing, or 

conducting research 

 with respect to controlled substances. 

 (3) The applicant's conviction record under Federal or 

State laws 

 relating to the manufacture, distribution, or dispensing of 

controlled 

 substances. 

 (4) Compliance with applicable State, Federal, or local 

laws relating 

 to controlled substances. 

 (5) Such other conduct which may threaten the public 

health and 

 safety. 

21 U.S.C. § 823(f) (1994). The five factors are independent, and the 

Deputy Administrator may revoke a 

registration based on one factor or a combination of several factors. 

Henry J. Schwartz, M.D., 54 Fed. Reg. 
16,422, 16,424 (1989). 

 The DEA bears the burden of proving that registration would not be in 

the public interest. See Shatz v. 

United States Dep't of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989) ("We 

think the burden of persuasion and 

production on the issue whether registration would be in the public 

interest was correctly placed on the 

Administrator as an initial matter. Once the Administrator produced 

evidence of the state medical board's 

actions, the DEA investigation and the drug-related felony conviction, the 

burden of production only then shifted 

to Shatz to rebut this evidence."). 

Applicability of the Statute to Humphreys and its Application 

 Humphreys raises two primary issues on appeal: whether 21 U.S.C. § 

824(a) can apply to the facts of 

this case and, if so, whether the DEA properly applied the five public 

interest factors to his case and properly 

considered his privacy defense. 

 Initially, we may easily dispose of Humphreys' contention that 21 

U.S.C. § 824(a) was never meant to 

apply to physicians in his circumstances. Citing Trawick, 861 F.2d at 76, 

Humphreys argues that the legislative 

history of the 1984 amendment indicates it was meant to apply only in 

egregious cases and was specifically 

directed to those physicians who prescribed controlled substances to 

addicts, who then could either use the drugs 

themselves or resell them in order to purchase different drugs, such as 

heroin. Humphreys argues that his actions 

did not fall within the category of egregious cases. Certainly, there is 

no allegation here of sales to addicts. 

 However, Humphreys, while relying on selected language in the Trawick 

opinion, has ignored not only 

the holding of the Trawick decision, but other language as well. In 

Trawick, a dentist was indicted on state felony 

drug charges, including conspiracy to distribute and distribution of 

cocaine, based on acts not related to his 

patients. 861 F.2d at 73-74. The dentist pled guilty only to misdemeanor 

possession of cocaine as part of a plea 

bargain. Id. at 74. Following his conviction, the DEA revoked his 

registration as being inconsistent with the 

public interest. Id. The Court of Appeals noted that the legislative 

history of the public interest standard was much 

as Humphreys now suggests, but concluded that the dentist there could not 

"avoid the plain statutory language of 

the amendment merely by showing that Congress, in enacting it was largely 

concerned with a situation different 

from the instant case." Id. at 76. Reasoning that a court must uphold 

any reasonable agency construction of a 

statute it is entrusted to enforce, the court concluded it was reasonable 

to interpret the statute to authorize 

revocation based on a misdemeanor drug conviction. Id. at 75-76. 

Likewise, here there is nothing unreasonable 

about the DEA's interpretation of the statute as authorizing revocation 

based on Humphreys' allegedly unlawful 
and irregular prescription of controlled substances in the names of 

individuals other than his patient, Larson. As 

discussed below, however, the DEA's application of the statute to the 

precise situation facing Humphreys is so 

deficient as to be an abuse of discretion. 

The Privacy Defense 

 In a combined discussion of factors two and four under 21 U.S.C. § 

823(f), the two factors upon which 

the Deputy Administrator relied most heavily, the Deputy Administrator 

emphasized that Humphreys had engaged 

in a course of conduct during approximately a 12-year period that clearly 

violated federal drug prescribing 

regulations. Specifically, the Deputy Administrator concluded that 

Humphreys' conduct violated 21 C.F.R. § 

1306.04(a), which provides that a prescription for a controlled substance 

"must be issued for a legitimate medical 

purpose by an individual practitioner acting in the usual course of his 

professional practice." The Deputy 

Administrator concluded that these factors weighed in favor of revoking 

Humphreys' registration, as Humphreys' 

long practice of issuing prescriptions in the names of individuals unknown 

to him and not under his care would not 

meet this criterion. 

 The central deficiency in the Deputy Administrator's decision is his 

complete failure to discuss the one 

and only defense raised by Humphreys: that prescribing antidepressants 

and other such drugs for a famous patient 

in the name of another individual in order to preserve the privacy of the 

patient was, in fact, the "usual course" of 

medical practice in circumstances such as these and that, therefore, 

Humphreys did not violate the federal 

regulation. Humphreys squarely and intelligibly raised this defense 

before the Deputy Administrator, as before 

us. 

 Specifically, Humphreys, too ill to appear in person, wrote in a 

letter responding to the DEA Order to 

Show Cause that "[t]he psychiatrist and the neurologist at the trial for 

Justice Larson testified that they probably 

would have done the same thing and might have even used the same 

medications. They indicated that it is 

common practice, especially in psychiatric patients, to do this." 

Additionally, Humphreys' attorney wrote the 

following: 

 Separate and apart from Dr. Humphrey's [sic] opinion is the 

sworn testimony of Gerald 

 Sandson, M.D. given in the case of Commonwealth of Pennsylvania 

v. Rolf Larson at 

 #9313844, in which this psychiatrist completely concurred with 

the need for privacy in 

 the treatment of Justice Larson. . . . Testimony at trial 

showed that psychiatric patients 

 suffer a stigma in society, and that public figures bear even 

greater burden. 

 
 During the case of Commonwealth of Pennsylvania vs. [sic] 

Larson, it was established 

 without contradiction, that on a daily basis, psychiatrists on 

the staffs of at least 

 Allegheny General Hospital and the Western Psychiatric Institute 

prescribed drugs in 

 names of people for whom the prescriptions were not intended 

because privacy was an 

 essential part of the treatment of the patient. No prosecutions 

were ever brought for 

 any of these doctors or hospitals. 

Humphreys' attorney also asserted that the sworn testimony at the Larson 

trial also established that privacy was an 

essential part of Larson's treatment, that privacy was the reason the 

drugs were prescribed in the names of others, 

and that the manner and method of Larson's treatment were not inconsistent 

with generally accepted medical 

standards. 

 The Deputy Administrator apparently failed to consider any of this 

evidence, stating instead only that "the 

trial transcript from Justice Larson's trial was not a part of the 

investigative record, and the Respondent did not 

attach a copy of the referenced sections to his Reply." It is true that 

Humphreys failed to include the Larson trial 

transcripts he cited in the DEA record. Humphreys should have submitted 

these transcripts to the DEA for 

inclusion in the record. However, while the record did not contain these 

trial transcripts, the Deputy 

Administrator was clearly aware of the trial and referred specifically to 

Humphreys' testimony at a pre-trial 

hearing in the Larson case. 

Thus, the Deputy Administrator did have before him, and took notice of, 

Humphreys' sworn testimony, observing 

that 

 beginning in 1981 and continuing until 1993, [Humphreys] had 

issued prescriptions for 

 Schedule IV controlled substances intended for Justice Larson's 

use, but he had issued 

 the prescriptions in the name of third-parties. . . . 

[Humphreys] had never met these 

 individuals, and they were not his patients. . . . [Humphreys] 

testified that he 

 examined Justice Larson about every six months, but not 

necessarily prior to issuing 

 each of the prescriptions. Rather, Justice Larson would 

telephone [Humphreys] and tell 

 him what substances he wanted and in whose name to issue the 

prescription. . . . 

 [Humphreys] was aware of Justice Larson's diagnosed condition . 

. . and that it was 

 [his] belief that every medication he prescribed for Justice 

Larson was for a legitimate 
 medical purpose. [Humphreys] testified that he had prescribed 

the substances in 

 legitimate medical dosage amounts and at appropriate time 

intervals. He states that he 

 prescribed these controlled substances in this manner in order 

to preserve his patient's 

 privacy . . . . 

Indeed, nearly the entirety of the administrative record consists of items 

from Larson's criminal trial, including 

hearing transcripts and a copy of the complaint, and newspaper reports 

regarding the trial. 

 We are troubled by the fact that the Deputy Administrator went 

outside the papers submitted by 

Humphreys for evidence supporting his decision, such as Humphreys' pretrial testimony – evidence that actually 

indicated that Humphreys acted out of concern for Larson's privacy - yet 

failed to obtain the public trial 

transcripts of Dr. Sandson and others from the very same trial, which were 

cited by Humphreys in his support, or 

to otherwise consider Humphreys' privacy defense. Such failure is 

especially egregious where, as here, the record 

is devoid of any evidence, in the form of affidavits, medical treatises or 

anything else, that would support a 

conclusion that doctors do not prescribe drugs in the name of proxies for 

famous patients with mental disorders in 

the "usual course" of their medical practice. Nor have we been able to 

locate any previous published DEA or 

court decision in which such privacy concerns were raised and rejected. 

Indeed, at oral argument the DEA 

representative acknowledged that she was unaware of any other proceeding 

in which such a privacy defense had 

been raised. 

 An agency's action is arbitrary and capricious if the agency 

"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." 

Natural Resources Defense Council, Inc. v. United States Envtl. Protection 

Agency, 790 F.2d 289, 297-98 (3rd 

Cir. 1986)(quoting Motor Vehicle Mfrs. Ass'n. v. State Farm Mutual, 463 

U.S. 29, 43 (1983)) (emphasis added), 

cert. denied sub nom. Chicago Ass'n. of Commerce & Indus. v. National 

Resources Defense Council, Inc., 479 

U.S. 1084 (1987); see also Shane Meat Co. v. United States Dep't of 

Defense, 800 F.2d 334, 336 (3d Cir. 1986) 

("Failure of the agency to address an important aspect of the issue under 

consideration may be fatal to its 

conclusion."). Here, the decision of the Deputy Administrator, lacking any 

analysis of Humphreys' privacy defense, is arbitrary and capricious. 

 In short, the Deputy Administrator both failed to evaluate and 

address Humphreys' defense and to resolve 
the conflict created by the arguments and evidence before him. See Kent 

v. Schweiker, 710 F.2d 110, 114 (3d 

Cir. 1983) (stating, in reference to the substantial evidence test, that 

"[a] single piece of evidence will not satisfy 

the substantiality test if the Secretary ignores, or fails to resolve, a 

conflict created by countervailing evidence."). 

Humphreys and other trial witnesses asserted that such prescribing 

occurred in the "usual course," and there is no 

contrary evidence in the record. Thus, there is a conflict between the 

record evidence and the Deputy 

Administrator's tacit assumption about the "usual course" of medical 

practice. The Deputy Administrator 

nevertheless failed to resolve or even acknowledge this conflict. He 

neither gave any reasons for rejecting 

Humphreys' assertions about the "usual course," nor cited any evidence 

supporting the conclusion that Humphreys 

did not act in the "usual course." That he avoided this conflict is all 

the worse given his failure to review the 

public testimony that Humphreys and his attorney specifically cited, 

summarized and asserted would corroborate 

Humphreys' position. 

 It may well be that the testimony referred to by Humphreys and his 

attorney does not, in fact, establish 

that Humphreys was merely engaging in the "usual course" of practice. 

Here, however, the Deputy Administrator 

improperly failed to consider Humphreys' privacy concerns and failed to 

determine whether Humphreys' privacy 

concerns brought his otherwise allegedly improper prescribing conduct 

within the "usual course." Failing to 

analyze the privacy defense was an abuse of discretion. Absent such 

analysis, it was arbitrary and capricious to 

revoke Humphreys' registration in reliance on the second and fourth 

factors of 21 U.S.C. § 823(f). 

 We neither disregard nor minimize the substantial deference to 

which such agency decisions are always 

entitled. See Pennsylvania Funeral Directors Ass'n. v. Federal Trade 

Comm'n., 41 F.3d 81, 85 (3d Cir. 1994) 

("The arbitrary and capricious standard is very deferential."). We also 

recognize that we must not simply 

substitute our judgment for that of the agency. Shane Meat Co., 800 F.2d 

at 336. However, this is not simply a 

case where we disagree with the Deputy Administrator's application of 

relevant mitigating aspects of the statutory 

factors to settled facts. See Id. (reversing district court decision 

finding an administrative decision arbitrary and 

capricious where the agency decision gave consideration to the relevant 

mitigating factors). Rather, here the 

agency improperly failed even to consider the defense put forth by 

Humphreys. The case must be remanded for 

proper consideration of that defense. 

Proceedings on Remand 

 In addition to the Deputy Administrator's improper reliance on 

factors two and four in the absence of a 
consideration of Humphreys' privacy defense, the Deputy Administrator's 

remaining discussion of the 21 U.S.C. 

§ 823(f) factors contains several additional inconsistencies and problems 

which should be addressed and corrected 

on remand. 

 First, as to factor one, the "recommendation" of the appropriate 

state licensing board or professional 

disciplinary authority, section 823(f)(1), the Deputy Administrator noted 

that the Pennsylvania Bureau of 

Professional and Occupational Affairs had issued a Show Cause order 

alleging that Humphreys had engaged in a 

12-year pattern of issuing prescriptions to individuals who were not his 

patients that, if proven, would violate state 

law and might justify revoking his medical license. At the time of DEA's 

decision, however, the only evidence in 

the record pertaining to the state investigation indicated merely that the 

Show Cause order had issued and that 

Pennsylvania bore the burden of proving the charges by a preponderance of 

the evidence. We have no indication 

whether Humphreys advanced the same defense there as here or what ruling, 

if any, Pennsylvania made on any 

such defense. On remand, the DEA should determine whether Pennsylvania, 

in fact, met its burden and what 

actions, if any, have actually been taken against Humphreys. If none, 

then the Deputy Administrator should 

consider whether, by merely issuing the Order to Show Cause, Pennsylvania 

authorities have made any 

"recommendation" within the meaning of section 823(f)(1). Only if the 

Deputy Administrator properly concludes 

Pennsylvania has made a "recommendation" of revocation or other punitive 

action may any weight adverse to 

Humphreys be given under factor one. Although in this decision the Deputy 

Administrator only gave limited 

weight to factor one, it is not clear any weight at all is appropriate. 

 Second, we note that, as applied by the Deputy Administrator, any 

weight under factor two, which 

concerns "experience with dispensing . . . controlled substances," is 

entirely dependent on the violation of a 

federal regulation found by the Deputy Administrator under factor four. 

That is, if Humphreys violated the 

federal regulation, that he did so for over 12 years is an aggravating 

factor. However, if his conduct was indeed 

in the "usual course," its duration is irrelevant. 

 Third, the DEA found that Humphreys' "prescribing of controlled 

substances to Justice Larson merely 

upon his request, without seeing him, examining him, or otherwise making a 

medical evaluation prior to issuing 

the prescription, demonstrated behavior such that the patient's demands 

seemed to replace the physician's 

judgment. . . . Such uncontroverted actions on the part of the Respondent 

are preponderating evidence that he 

has dispensed controlled substances in violation of federal law." We have 

reviewed the administrative record and 
see nothing in the current record that would support this particular 

finding. While there is some evidence 

indicating Larson would call Humphreys and request prescriptions for 

certain drugs or request a change in his 

prescription, there is absolutely no testimony indicating Humphreys failed 

to exercise his own medical judgment 

when prescribing medication for Larson. We do not mean to say that the DEA 

might not be able to prove this fact 

at a later date upon an expanded record – only that it has not done so on 

this record. Indeed, if anything, the 

current record indicates Humphreys, in fact, was exercising independent 

medical judgment. Specifically, 

Humphreys stated that he would have adjusted the drugs accordingly had he 

become aware that other drugs were 

being prescribed to Larson by other doctors. Humphreys also testified 

that it was his belief that every medication he prescribed for Larson was 

medically appropriate. In addition, the 

testimony of Larson himself indicates Humphreys exercised his own 

judgment. Specifically, Larson testified 

Humphreys performed a full physical evaluation before prescribing drugs 

for the first time, that the drugs were 

later changed due to side effects, and that Humphreys was the "ultimate 

decider" of what particular drugs to 

prescribe. Thus, it remains unclear how factor four can weigh against 

Humphreys in this regard. 

 Fourth, the Deputy Administrator found, under factor five, that 

the public was at risk from the potential 

diversion of controlled substances by both Larson, who could have received 

duplicative prescriptions for 

controlled substances, and the employees named on the prescriptions, who 

were prescribed medication they did 

not intend to ingest and for which they themselves lacked a medical need. 

The Deputy Administrator's inferences 

of a threat of public harm are overly broad and only weakly, if at all, 

supported by the present record. Indeed, the 

Deputy Administrator admitted that no such diversion in fact occurred. 

The conclusion that substantial risk for 

diversion existed because Larson or the secretaries and the law clerk 

might resell the drugs, under these 

circumstances, is so unlikely as to be unsustainable. The secretaries and 

law clerk in whose names the 

prescriptions were written were, after all, trusted employees and 

responsible adults. They obtained the drugs at 

Larson's specific requests and under his instruction. Moreover, Larson 

was aware of what drugs he should 

receive from each of these individuals and when he should receive them, 

having contacted Humphreys each time 

to tell Humphreys which name to use for a particular prescription. Any 

deviation would have been quickly 

noticed and, presumably, dealt with appropriately. That such trusted 

employees were at risk because they might 

take the drugs themselves or endangered others because they might attempt 

to resell them, rather than turn them 
over to Larson, is "implausible". See Natural Resources Defense Council, 

790 F.2d at 297-98. 

 It is true, as the Deputy Administrator noted, that the 

pharmacist filling a prescription could not have 

checked any available computer data bank for conflicting prescriptions for 

Larson, since the prescriptions for 

Larson were not in his name. However, the DEA did not establish that the 

pharmacy or pharmacies patronized by 

Larson had such a system in place during the relevant time period. 

Moreover, if Larson frequented more than 

one pharmacy, the DEA has not shown that problems would have been detected 

even if all of Larson's 

prescriptions had been written in his own name. 

 Our discussion of the need on remand to correct the deficiencies 

in the decision under review should not 

be construed in any way as suggesting that Humphreys either is or is not 

entitled to retain his DEA registration. 

We intimate no view on that issue. Rather, we hold only that the Deputy 

Administrator failed to properly 

analyze the evidence and decide the issues and must do so on remand. 

 Conclusion 

 Because the DEA utterly failed to consider Humphreys' defense and 

improperly analyzed some of the 

evidence, its analysis was so inadequate and prejudicial to Humphreys as 

to constitute an abuse of discretion and 

render the revocation order an arbitrary and capricious agency action. 

Therefore, we vacate and remand.