                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                              No. 06-15034               ELEVENTH CIRCUIT
                                                         SEPTEMBER 25, 2007
                        ________________________
                                                          THOMAS K. KAHN
                                                               CLERK
                             DEA Cert No. 03-8

JAYAM KRISHNA IYER, M.D.,

                                                      Petitioner,

                                    versus

DRUG ENFORCEMENT ADMINISTRATION,

                                                      Respondent.

                        ________________________

                     Petition for Review of a Final Order
                   of the Drug Enforcement Administration
                         ________________________

                             (September 25, 2007)

Before BIRCH, BARKETT, and COX, Circuit Judges.

PER CURIAM:

      On September 1, 2006, a Drug Enforcement Administration (“DEA”) Deputy

Administrator, following an Administrative Law Judge’s recommendation, ordered
that Petitioner’s certificate to prescribe drugs be revoked for prescribing drugs

without a legitimate medical purpose.

       An agency decision to revoke a DEA certificate will be set aside if it is

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

law.” 5 U.S.C. § 706(2)(A). In determining whether Petitioner’s authority to

dispense controlled substances should be revoked, the DEA is required to consider

the following factors to determine if continued certification is against the public

interest:

       (1) The recommendation of the appropriate State licensing board or
       professional 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). The DEA held that factors 1 and 3 supported Petitioner, and

factors 2 and 4 weighed against her. Finally, the DEA held that factor 5 also weighed

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against Petitioner, since she did not acknowledge any wrongdoing. Balancing the

factors and according “dispositive” weight to factor 5, the DEA concluded that

Petitioner’s certificate should be revoked.

      In considering Petitioner’s experience in dispensing controlled substances

under factor 2, the DEA identified only four visits by three undercover “patients,”

who were all attempting to make a case against her. The DEA failed to consider

Petitioner’s experience with twelve patients whose medical charts were seized by the

DEA, or with thousands of other patients. In short, the DEA did not consider any of

Petitioner’s positive experience in dispensing controlled substances. This is an

arbitrary and unfair analysis of Petitioner’s experience. We vacate the order of the

DEA Deputy Administrator and remand the case for reconsideration of this factor,

where the DEA should pay particular attention to the entire corpus of Petitioner’s

record in dispensing controlled substances, not only the experience of undercover

officers. The five factors should accordingly be re-balanced.

      ORDER VACATED AND CASE REMANDED TO RESPONDENT.




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