          Case: 18-11168   Date Filed: 09/20/2019   Page: 1 of 21


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 18-11168
                        Non-Argument Calendar
                      ________________________

                            Agency No. 15-17



PHARMACY DOCTORS ENTERPRISES, INC.,
d.b.a. Zion Clinic Pharmacy,

                                                                      Petitioner,

                                  versus

DRUG ENFORCEMENT ADMINISTRATION,

                                                                    Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                        Drug Enforcement Agency
                       ________________________

                           (September 20, 2019)

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Pharmacy Doctors Enterprises, Inc. (“Pharmacy Doctors”), a retail

pharmacy, petitions for review of a decision by the Acting Administrator of the

U.S. Drug Enforcement Administration (DEA) pursuant to the Controlled

Substances Act (“CSA”), to revoke its registration to dispense controlled

substances and deny any pending application for renewal of registration.1

21 U.S.C. §§ 823(f), 824(a). The Acting Administrator revoked Pharmacy

Doctors’ registration after a hearing before an administrative law judge (ALJ)

revealed that it had filled prescriptions for controlled substances in violation of

federal and state law and that its owner and operator, Veronica Taran, exhibited

ignorance of her legal and professional duties as a pharmacist. Pharmacy Doctors

argues that the ALJ presiding at the hearing was improperly appointed under the

Appointments Clause, the Acting Administrator lacked substantial evidence for his

findings, and his revocation of Pharmacy Doctors’ registration was arbitrary and

capricious. After careful consideration, we deny the petition for review.

  I.       FACTUAL, PROCEDURAL, AND STATUTORY BACKGROUND

       The CSA makes it “unlawful for any person knowingly or intentionally . . .

to . . . distribute[] or dispense . . . a controlled substance” except “as authorized” by

the CSA. Id. § 841(a)(1). One of the CSA’s exceptions is for pharmacies



       1
        Pharmacy Doctors Enters. d/b/a Zion Clinic Pharmacy Decision and Order, 83 Fed.
Reg. 10,876, 10,903 (DEA, Mar. 13, 2018).

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registered with the Attorney General, id. § 822(a), which may “dispense” or

“deliver a controlled substance to an ultimate user . . . pursuant to the lawful order

of[] a practitioner,” id. § 802(10). By DEA regulation, a lawful order of a

practitioner is one that is “issued for a legitimate medical purpose by an individual

practitioner acting in the usual course of his professional practice.” 21 C.F.R.

§ 1306.04(a). That regulation imposes a responsibility on the prescriber to ensure

prescriptions comply with the law and also a “corresponding responsibility” on the

“pharmacist who fills the prescription” to ensure that the prescription is valid. Id.

A pharmacist who “knowingly fill[s]” a prescription not issued “for a legitimate

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

professional practice” is subject to penalties under the CSA. Id.

      The Attorney General has delegated to the DEA Administrator the authority

to issue, deny, suspend, and revoke pharmacy registrations. 28 C.F.R. § 0.100(b).

Registration may be denied or revoked when it is or would be “inconsistent with

the public interest.” 21 U.S.C. §§ 823(f), 824(a)(4).

      Here, the DEA served on Pharmacy Doctors an order to show cause, see id.

§ 824(c)(1); 21 C.F.R. § 1301.37, alleging that Pharmacy Doctors was dispensing

controlled substances in violation of federal and state law and proposing to revoke

its registration, 21 U.S.C. § 824(a)(4), and deny any pending application for

renewal of its registration, id. § 823(f).


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       As was its right under the CSA and the Administrative Procedure Act

(APA), Pharmacy Doctors requested a hearing, see id. § 824(c)(4); 5 U.S.C.

§ 554(c)(2); 21 C.F.R. §§ 1301.37(d), 1301.41(a), at which the parties presented

documentary evidence and the ALJ heard testimony from the government’s expert

Tracey Gordon, Pharmacy Doctors’ expert Louis Fisher, Taran, and a DEA

investigator. We describe the relevant aspects of the evidence and testimony in

Part III. After the hearing, the ALJ recommended that the Acting Administrator

revoke Pharmacy Doctors’ registration and deny any pending applications for

renewal because registration would be “inconsistent with the public interest.”

21 U.S.C. §§ 823(f), 824(a)(4).

       The Acting Administrator agreed with the ALJ and issued an order revoking

Pharmacy Doctors’ registration and denying any pending applications for renewal.

Pharmacy Doctors petitioned for review of the Acting Administrator’s decision.2

Id. § 877.

                           II.    STANDARDS OF REVIEW

       We review de novo questions of law, including the constitutionality of the

ALJ’s appointment. Sec. & Exch. Comm’n v. Graham, 823 F.3d 1357, 1360 (11th

Cir. 2016).


       2
        In its briefing on appeal, Pharmacy Doctors does not challenge the Acting
Administrator’s decision to deny any pending application to renew its registration. See
21 U.S.C. § 823(f).

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      “The Acting Administrator’s factual findings are conclusive if supported by

substantial evidence.” Jones Total Health Care Pharmacy, LLC v. Drug Enf’t

Admin., 881 F.3d 823, 829 (11th Cir. 2018) (citing 21 U.S.C. § 877). Substantial

evidence, which is a standard lower than a preponderance of the evidence, is “such

relevant evidence as a reasonable person would accept as adequate to support a

conclusion.” Id. “An administrative agency’s finding is supported by substantial

evidence even if two inconsistent conclusions could be drawn from the evidence.”

Id. (alteration adopted) (internal quotation marks omitted).

      Under the APA, we may set aside the Acting Administrator’s final decision

if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law,” “contrary to [a] constitutional right,” or “unsupported by substantial

evidence.” 5 U.S.C. § 706(2)(A)-(B), (E). “The arbitrary and capricious standard

is exceedingly deferential.” Jones Total, 881 F.3d at 829 (internal quotation marks

omitted). “We may not substitute our judgment for that of the agency so long as its

conclusions are rational and based on the evidence before it.” Id. “Nevertheless,

we may set aside a decision as arbitrary and capricious when, among other flaws,

the agency has relied on factors [that] Congress has not intended it to consider,

entirely failed to consider an important aspect of the problem, or offered an

explanation for its decision that runs counter to the evidence before the agency.”

Id. (alteration adopted) (internal quotation marks omitted).


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                               III.   DISCUSSION

      Pharmacy Doctors raises three grounds for why we should set aside the

Acting Administrator’s decision: (1) the ALJ who presided over the hearing was

invalidly appointed under the Appointments Clause; (2) the Acting Administrator

lacked substantial evidence for his factual findings; and (3) the Acting

Administrator’s decision to revoke Pharmacy Doctors’ registration was arbitrary

and capricious. We reject each argument and accordingly deny Pharmacy Doctors’

petition for review.

A. We Decline to Excuse Pharmacy Doctors’ Forfeiture of its Appointments
   Clause Argument.

      The Appointments Clause requires that “Officers of the United States” be

appointed by the President, a court of law, or a head of a department. U.S. Const.,

art. II, § 2, cl. 2. Citing a recent Supreme Court case holding that ALJs of the

Securities and Exchange Commission are “Officers of the United States” whose

appointments must comply with the Appointments Clause, see Lucia v. S.E.C.,

138 S. Ct. 2044, 2049, 2054 (2018), Pharmacy Doctors argues that DEA ALJs are

also “Officers of the United States” whose appointments must comply with the

Clause. Because the ALJ who presided over the hearing was not appointed by the



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President, a court of law, or a department head, Pharmacy Doctors contends, a

remand for a new hearing before a properly appointed ALJ is required.

      Pharmacy Doctors concedes, however, that it failed to timely challenge the

validity of the ALJ’s appointment. “Under ordinary principles of administrative

law, a reviewing court will not consider arguments that a party failed to raise in

timely fashion before an administrative agency.” Mahon v. U.S. Dep’t of Agric.,

485 F.3d 1247, 1254 (11th Cir. 2007) (internal quotation marks omitted).

“[W]here the parties are expected to fully develop the issues during the course of

an adversarial administrative proceeding, the rationale for requiring issue

exhaustion is at its strongest.” Id. at 1255.

      “Although there is no express issue exhaustion requirement in the [CSA or

DEA] regulations, a review of the [CSA and DEA regulations] reveals that [DEA]

proceedings are ‘adversarial’ in nature.” Id. at 1256. Under the supervision of the

DEA Administrator, the ALJ may subpoena and compel the attendance and

testimony of witnesses, require the production of records relevant to an

investigation, administer oaths, and receive evidence. 21 U.S.C. §§ 875(a), 876(a);

see also 28 C.F.R. § 0.100(b). Parties may present “[e]xtensive argument” in

“opening [and] closing statements[,] . . . memoranda[,] [and] proposed findings of

fact and conclusions of law.” 21 C.F.R. § 1301.42. The government bears the

burden to show that registration violates or would violate the CSA. Id.


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§ 1301.44(d)-(e). And the DEA Administrator’s order denying or revoking a

registration must “include the findings of fact and conclusions of law upon which

the order is based.” Id. § 1301.46; see also Mahon, 485 F.3d at 1249, 1256

(considering similar features of the U.S. Department of Agriculture’s process for

evaluating applications for federal disaster assistance to determine whether that

process was “‘adversarial’ in nature”).

      Given these features, the DEA’s “procedures provide an adversarial system

in which parties are given a full and fair opportunity to make their arguments and

present evidence, and, as a corollary, to attempt to challenge the arguments and

evidence presented by the agency.” Id. at 1256. “As such, the adversarial nature

of the administrative proceedings counsel against allowing [Pharmacy Doctors] to

raise [a] new argument[] that w[as] not raised during the course of [its]

administrative appeal” to the Acting Administrator. Id. Because arguments based

on the Appointments Clause are nonjurisdictional and therefore subject to the

ordinary rules of forfeiture, see Freytag v. Comm’r, 501 U.S. 868, 878-79 (1991);

see also id. at 893-94 (Scalia, J., concurring in part and concurring in judgment),

we conclude that Pharmacy Doctors has forfeited its Appointments Clause

challenge.

      We reject Pharmacy Doctors’ argument that we should excuse its forfeiture

based on Jones Bros. v. Secretary of Labor, 898 F.3d 669 (6th Cir. 2018), in which


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the Sixth Circuit excused a forfeiture of an Appointments Clause challenge to a

Federal Mine Safety and Health Review Commission ALJ’s authority to uphold

civil penalties. Id. at 672. Even if we assume that the Sixth Circuit’s approach

was sound, two facts distinguish this case. First, the statute at issue in Jones

Brothers explicitly permitted excusal in “extraordinary circumstances.” 30 U.S.C.

§ 816(a)(1). Pharmacy Doctors cites and we have found no analogous provision in

the CSA. Second, Jones Brothers raised, at least in a cursory manner, its

Appointments Clause challenge in its appeal of the ALJ’s decision to the

Commission. Jones Bros., 898 F.3d at 673, 678. In contrast, Pharmacy Doctors

failed to make even a cursory argument regarding the Appointments Clause to the

Acting Administrator. Pharmacy Doctors’ reliance on Jones Brothers thus fails to

aid its argument that we should excuse its forfeiture.

      Likewise, Pharmacy Doctors’ argument that its Appointments Clause

challenge was unavailable before the Supreme Court decided Lucia is without

merit. The availability of an argument does not depend on whether a court has

already issued a decision addressing that exact argument. Moreover, the Supreme

Court held that Freytag, a case decided 24 years before the DEA served the order

to show cause on Pharmacy Doctors, “sa[id] everything necessary to decide” the

Appointments Clause challenge at issue in Lucia, 138 S. Ct. at 2053, so Pharmacy




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Doctors may not credibly argue that an Appointments Clause challenge was

unavailable when it appeared before the DEA.



B. Substantial Evidence Supports the Acting Administrator’s Factual
   Findings.

      As noted above, the Acting Administrator may revoke a pharmacy’s

registration under the Controlled Substances Act when the pharmacy “has

committed such acts as would render [its] registration . . . inconsistent with the

public interest.” 21 U.S.C. § 824(a)(4); see also id. § 823(f). “The government

bears the initial burden of proving that registration is inconsistent with the public

interest.” Jones Total, 881 F.3d at 830 (citing 21 C.F.R. § 1301.44(d)-(e)). “If the

government proves its prima facie case, the burden of proof shifts to the registrant

to show why it can be trusted with a registration.” Id. Pharmacy Doctors contends

that the Acting Administrator lacked substantial evidence for his findings that

(1) the government made out a prima facie case that continued registration would

be “inconsistent with the public interest,” 21 U.S.C. §§ 823(f), 824(a)(4), and

(2) Pharmacy Doctors failed to rebut the government’s prima facie case by

accepting responsibility. We disagree.

   1. The Government’s Prima Facie Case

      To determine whether the government has made a prima facie case that

continued registration or granting an application would be inconsistent with the
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public interest, the Acting Administrator must consider five statutory factors,

“though he need not make explicit findings as to each one and [may] give each

factor the weight he determines is appropriate.” Jones Total, 881 F.3d at 830

(alteration adopted) (internal quotation marks omitted); 21 U.S.C. § 823(f)

(statutory factors). Here, the Acting Administrator made explicit findings as to

two of the factors: “[t]he applicant’s experience in dispensing[] or conducting

research with respect to controlled substances” and “[c]ompliance with applicable

State, Federal, or local laws relating to controlled substances.” Id. § 823(f)(2), (4).

After detailing five ways in which Pharmacy Doctors had violated federal and state

law, the Acting Administrator determined that the government met its prima facie

burden to show that continued registration would be “inconsistent with the public

interest.” Id. § 824(a)(4). Substantial evidence supports each of these five

findings.3

      First, Pharmacy Doctors violated a DEA regulation requiring pharmacists to

store controlled substance prescriptions in a “readily retrievable” manner.

21 C.F.R. § 1304.04(h)(3)-(4); see also id. § 1300.01(b) (defining “[r]eadily

retrievable”). When a DEA investigator requested during an unannounced

inspection to see several prescriptions Pharmacy Doctors had filled within the

previous two years, it was unable to retrieve them. Second, Pharmacy Doctors

      3
          Unless otherwise noted, all facts described in Part III.B of our opinion are undisputed.

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shipped controlled substances out of state without complying with those states’

non-resident pharmacy licensing requirements. Third, Pharmacy Doctors filled

controlled substance prescriptions that lacked basic identifying information about

the patient, prescriber, the drug, and instructions for its use, despite a DEA

regulation requiring pharmacists to ensure that all prescriptions bore this

information. See id. § 1306.05(a), (f). Fourth, Pharmacy Doctors failed to report

several controlled substance prescriptions to Florida’s electronic drug-monitoring

system, in violation of Florida law. Fla. Stat. § 893.055. That each of these facts

is undisputed shows that the Acting Administrator had substantial evidence to

support these findings.

      Fifth, Pharmacy Doctors failed to comply with its “corresponding

responsibility,” noted above in Part I, to ensure that it filled only those

prescriptions “issued for a legitimate medical purpose by an individual practitioner

acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04(a).

The government sought to prove that Pharmacy Doctors violated its corresponding

responsibility by engaging in conduct that amounted to willful blindness: filling

prescriptions even though they raised “red flags”—indicia that the prescription was

not issued for a legitimate medical purpose and would likely be diverted to non-

medical uses. See Jones Total, 881 F.3d at 828.




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      For example, Pharmacy Doctors filled: several prescriptions presented by

customers traveling hundreds of miles roundtrip; in fewer than two hours, several

prescriptions written by the same doctor on the same day for the same strength of

the same drug; within five minutes, two prescriptions written by the same doctor

on the same day for the same drug for two individuals with the same last name and

street address; several prescriptions for two drugs that, taken together, would make

a “cocktail” for recreational rather than medical use; and several prescriptions at

least five days before the customers should have finished their previous

prescription, including 12 prescriptions for one customer for the same drug within

a span of four months. In addition, Pharmacy Doctors accepted cash in exchange

for filling at least 50 prescriptions; in at least one instance, it increased the price by

over $150 for the same quantity of the same drug sold to the same customer less

than a month later. According to Gordon, the price increase indicated that Taran

knew the drug would be diverted and that she was taking advantage of a customer

who would pay any price to obtain the drug.

      Many of the prescriptions detailed above were for Dilaudid, the brand name

version of hydromorphone, a Schedule II opiate that Taran admitted was a “high

risk medication” subject to “a lot of diversion.” Gov’t App’x, Tr. at 1116, 1129;

see also 21 C.F.R. § 1308.12(b)(vii).




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       With one exception,4 Gordon and Fisher both testified that each of the

examples of alleged red flags did indeed raise red flags. Rather than taking and

documenting steps to resolve these red flags or refusing to fill prescriptions with

unresolvable red flags, however, Pharmacy Doctors filled all of these prescriptions

without submitting any documentation that it had resolved the red flags. Pharmacy

Doctors’ awareness of the risk of diversion combined with its failure to take

meaningful steps to ensure that the prescriptions it filled were for legitimate

medical uses together demonstrate willful blindness to how its dispensing practices

facilitated diversion. Therefore, substantial evidence supports the Acting

Administrator’s finding that Pharmacy Doctors failed to comply with its

corresponding responsibility not to fill prescriptions written for illegitimate

purposes. Id. § 1306.04(a).

       None of Pharmacy Doctors’ counterarguments regarding the government’s

prima facie case undermines or contradicts the substantial evidence summarized

above. Pharmacy Doctors argues that it resolved red flags by speaking to the

prescribing practitioners, but Taran admitted that she did not always speak with the

prescribing doctors when red flags were present. It also argues that it checked


       4
         Regarding the allegation that Pharmacy Doctors filled prescriptions that would enable
customers to make drug cocktails for non-medical uses, Fisher thought that, to be a cocktail, a
third drug was required. Nevertheless, he admitted that Pharmacy Doctors would not know if
customers obtained the third drug from another pharmacy because it lacked access to Florida’s
electronic drug-monitoring system.

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prescribers’ medical licenses and DEA registration, had customers sign affidavits

to verify their relationship with the prescribing doctor, and tried to verify that the

prescribers’ signatures matched the signatures on the prescriptions. Yet it offers no

explanation for how these steps ensured that it filled only those prescriptions

issued for legitimate medical purposes.

      Next, Pharmacy Doctors protests that no Florida law required documentation

of a red flag, but regardless of whether that is true, the prevailing professional

standard as attested to by both Gordon and its own expert, Fisher, was that

pharmacists should document their resolution of red flags. Therefore, substantial

evidence supports the Acting Administrator’s finding that Pharmacy Doctors’

failure to document its resolution of red flags was part and parcel of its failure to

comply with the “corresponding responsibility” requirement. Id.

      In addition, Pharmacy Doctors avers that the DEA itself has held that the

lack of documentation of resolution of a red flag is “not evidence that a pharmacist

failed to resolve a red flag.” Appellant’s Br. at 53. This is false. Although the

DEA has held that a lack of documentation of resolution of a red flag on the

prescription itself is not conclusive proof of failure to resolve the red flag, those

decisions make clear that the absence of any documentation of resolution of a red

flag is probative of a failure to resolve it. See Hills Pharmacy, LLC Decision and

Order, 81 Fed. Reg. 49,816, 49,836 (DEA July 28, 2016) (“[T]he absence of


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documentation on the prescriptions is clearly probative evidence that Respondent’s

pharmacists failed to resolve the strong suspicion presented by many of the

prescriptions . . . .”); Superior Pharmacy I & Superior Pharmacy II Decision and

Order, 81 Fed. Reg. 31,310, 31,335 (DEA May 18, 2016) (“[I]t would be

reasonable to draw an adverse inference that a pharmacist failed to resolve a red

flag (or flags) from the failure to document the resolution in any manner . . . .”).

      Pharmacy Doctors also contends that the Acting Administrator’s reliance on

DEA decisions published after the conduct at issue here had ended was arbitrary

and capricious because it lacked notice of those decisions. We reject this argument

because the determination of whether Pharmacy Doctors had notice of a particular

professional obligation relevant to the “corresponding responsibility” requirement,

21 C.F.R. § 1306.04(a), depends not on whether the DEA happens to have

published a decision that recognizes a certain practice as a professional standard

but instead on the facts adduced in the agency proceeding. Here, the Acting

Administrator had substantial undisputed evidence to support his finding that

Pharmacy Doctors failed to comply with prevailing professional standards as

attested to by both Gordon and its own expert, Fisher.

      Lastly, Pharmacy Doctors’ efforts to distinguish its conduct from the

conduct at issue in DEA decisions predating the hearing are also meritless. To




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make out a prima facie case, the government need not review patient files. 5 Nor

does the government need to prove that Pharmacy Doctors’ misconduct was

similar to misconduct committed by other pharmacies sanctioned by the DEA,

such as: two people served by a pharmacy died the day after it dispensed

controlled substances, the pharmacist was told by customers that other pharmacies

would not fill the same prescriptions, customers traveled from out of state to

patronize the pharmacy, the pharmacist-in-charge admitted that customers might

be reselling their pills, the pharmacy refilled prescriptions without prescriber

authorization, or customers were doctor-shopping. 6 These are distinctions without

a difference. A pharmacist can violate the “corresponding responsibility”

requirement even if none of these specific facts characterizes its own conduct. Id.

All of Pharmacy Doctors’ counterarguments regarding the government’s prima

facie case are meritless.

       In sum, given the plentiful instances of Pharmacy Doctors breaking federal

and state law in filling prescriptions with indicia that the drugs would be used for


       5
        George C. Aycock, M.D. Revocation of Registration, 74 Fed. Reg. 17,529, 17,533,
17,542 (DEA, Apr. 15, 2009).
       6
          See East Main St. Pharmacy Affirmance of Suspension Order, 75 Fed. Reg. 66,149,
66,155, 66,164 (DEA Oct. 27, 2010) (customers died; pharmacy knew other pharmacies refused
to fill same prescriptions); Holiday CVS, L.L.C., d/b/a CVS/Pharmacy Nos. 219 & 5195 Decision
and Order, 77 Fed. Reg. 62,316, 62,318, 62,330 (DEA Oct. 12, 2012) (customers traveled from
out of state; pharmacy knew customers might be reselling pills); Grider Drug #1 & Grider Drug
#2 Decision and Order, 77 Fed. Reg. 44,070, 44,073-74, 44,099 (DEA July 26, 2012) (pharmacy
refilled prescriptions without prescriber authorization; customers were doctor-shopping).

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non-medical uses, substantial evidence supports the Acting Administrator’s

findings that Pharmacy Doctors’ conduct was “egregious” and that its “experience

in dispensing” and “compliance with applicable State[] [and] Federal . . . laws

relating to controlled substances” counseled against registration. 21 U.S.C.

§§ 823(f)(2), (4).7 Thus the Acting Administrator properly found that the

government met its burden to show a prima facie case that continued registration

would be “inconsistent with the public interest.” Id. § 824(a)(4).

   2. Pharmacy Doctors’ Rebuttal

       “[T]he DEA may properly consider a registrant’s acceptance of

responsibility in determining if registration should be revoked.” Jones Total,

881 F.3d at 830. “If a pharmacy has failed to comply with its responsibilities in

the past, it makes sense for the agency to consider whether the pharmacy will

change its behavior in the future.” Id. at 831.

       Substantial evidence supports the Acting Administrator’s finding that

Pharmacy Doctors failed to accept responsibility. For example, Taran denied that

red flags arose from customers traveling long distances to fill prescriptions and

multiple customers from the same address presenting the same prescriptions—even



       7
          Pharmacy Doctors argues that it complied with Florida law’s requirements for
dispensing controlled substances and needed to do no more to comply with the CSA. Having
failed to raise this argument to the agency, Pharmacy Doctors has forfeited it, and we decline to
address it. See Mahon, 485 F.3d at 1254-56.

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though Gordon and Fisher both agreed that these were red flags. Taran’s “refusal

to admit that [Pharmacy Doctors’] dispensing practices violated its obligations

under federal law . . . supports the factual finding . . . that [Taran] did not fully

understand her legal obligations as a pharmacist.” Jones Total, 881 F.3d at 832;

see also 21 C.F.R. § 1306.04(a). It is not “unreasonable for the DEA to expect a

pharmacist entrusted with dispensing highly regulated, addictive, and potentially

destructive substances to fully understand her obligations under the law.” Jones

Total, 881 F.3d at 832.

      Moreover, when asked to describe the conduct for which she accepted

responsibility, Taran’s only response at the hearing was that she “d[id]n’t have any

intention to violate DEA rules.” Appellant’s App’x, Tab 8, Tr. at 1025. But Taran

“could have maintained that the misconduct was not intentional while, at the same

time, recognizing . . . that it nonetheless violated the pharmacy’s obligations under

the CSA. . . . [H]er failure to clearly acknowledge even unintentional misconduct

demonstrated a lack of understanding of her legal obligations.” Jones Total,

881 F.3d at 833.

      “Because the record supports the Acting Administrator’s findings that

[Taran] . . . did not understand the scope of her responsibilities under the CSA, we

conclude that the [Acting Administrator’s] determination that [Taran] did not fully

accept responsibility for [Pharmacy Doctors’] misconduct was rational and


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supported by substantial evidence.” Id. Thus substantial evidence supports the

Acting Administrator’s finding that Pharmacy Doctors failed to rebut the

government’s prima facie case that its registration would be “inconsistent with the

public interest.” 21 U.S.C. §§ 823(f), 824(a)(4).

C. The Acting Administrator’s Decision to Revoke Pharmacy Doctors’
   Registration, Without Considering Its Remedial Steps, Was Neither
   Arbitrary Nor Capricious.

      The Acting Administrator declined to consider whether Pharmacy Doctors

took any remedial steps because Taran’s lack of understanding of her legal and

professional obligations made it “difficult (even illogical) to predict improvement.”

The Acting Administrator’s reasoning makes sense. “If a pharmacy shows that it

does not understand the extent of the past misconduct or its current responsibilities

under the law, the DEA rationally could doubt that the pharmacy would faithfully

comply in the future with its obligations under the CSA.” Jones Total, 881 F.3d at

833. We therefore conclude that the Acting Administrator’s “refusal to consider

[Pharmacy Doctors’] remedial measures does not render its decision arbitrary or

capricious.” Id. at 830.

      Likewise, given the extent of its misconduct and Taran’s testimony as to her

lack of understanding of “the scope of a pharmacist’s obligations under the CSA,

. . . the Acting Administrator’s decision to revoke [Pharmacy Doctors’] registration

[and deny its application for renewal] as inconsistent with the public interest was


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not arbitrary, capricious, or an abuse of discretion.” Id. at 833-34; see also

21 U.S.C. §§ 823(f), 824(a).

      We reject Pharmacy Doctors’ argument that a sanction less extreme than

revocation of registration was warranted. “Under the APA, the agency’s choice of

sanction is entitled to substantial deference” and “is not to be overturned unless it

is unwarranted in law or without justification in fact,” though it may be set aside

“if it represents a flagrant departure from agency policy and practice.” Jones

Total, 881 F.3d at 834 (internal quotation marks omitted). Pharmacy Doctors cites

no “decision in which the DEA has continued a registration despite finding that the

registrant did not fully accept responsibility.” Id. Because we have already

concluded that “substantial evidence supports the DEA’s finding that [Taran] did

not accept responsibility for the misconduct in this case, [Pharmacy Doctors] ha[s]

not shown that the agency’s choice of sanction represented a flagrant departure

from prior practice.” Id. Thus the Acting Administrator’s choice of sanctions was

not arbitrary, capricious, or an abuse of discretion.

                               IV.    CONCLUSION

      For the foregoing reasons, we deny the petition for review.

      PETITION DENIED.




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